This section covers legal principles affecting planning. This
handbook does not constitute legal advice. Please consult your
jurisdiction’s city attorney or county counsel.
The Police Power
The legal basis for all planning and land use regulation is the
“police power,” which is the government’s power to regulate in
the name of the public’s health, safety and welfare. The Tenth
Amendment to the United States Constitution reserves this power
to the states and the California Constitution in turn grants the
same power to cities and counties to the extent that local
regulations do not conflict with state law1.
The police power is “elastic,” meaning that it can expand
to meet the changing conditions of society. Thus, actions that
might not have been thought of as part of the general welfare a
century ago (like actions to curb sprawl, perhaps) can fall
within its purview today. Zoning and other forms of land use
regulation are within the broad scope of the police power2. The U.S. Supreme Court
expressed it this way:
The police power is not confined to elimination of filth,
stench and unhealthy places, it is ample to lay out zones where
family values, youth values and the blessings of quiet seclusion
and clean air make the area a sanctuary for people3.
Courts have found that a wide variety of local concerns fall
within the police power, including socio-economic balance,
aesthetic values, residential character and growth
The police power is not unlimited, however. There are several
constitutional limitations that affect the extent to which local
agencies can use the police power. As mentioned above, local
agencies cannot adopt regulations that conflict with state law.
Other constitutional limitations include takings, equal
protection and freedom of speech, to name a few. Some of the ways
in which these restrictions apply to land use regulations are
outlined in more detail in the following sections.
A local agency may not take actions that conflict with state or
federal law. Federal clean water and endangered species laws, for
example, sometimes restrict the scope of local zoning ordinances.
Likewise, the state Planning and Zoning Law imposes minimum
planning standards with which local agencies must comply. This is
known as preemption—the principle of law through which federal or
state regulations supersede those of a city or county. When a
conflict occurs, the local ordinance is invalid.
The extent to which local regulation may be preempted varies. In
some cases, the California Legislature has signaled a strong
preference for statewide uniformity. In other cases, the
paramount need for local control prevails. For example, the
Planning and Zoning Law serves only as a minimum standard with
which local agencies must comply, reserving in cities and
counties the maximum degree of control over local zoning
law5. Thus, local agencies
retain a great deal of control over most zoning decisions. An
exception is the extent to which local agencies may adopt
temporary moratoria on development6. Here, the California
Legislature has adopted detailed procedures—including time
limits, findings requirements and supermajority voting
requirements—with which local agencies must comply. As a result,
local agency discretion in this area is much more limited.
Just because there is a state law on a subject does not
necessarily preempt all action. There is often room for
additional local action, particularly if the local ordinance is
more restrictive. In other words, state and federal laws often
act as a legislative minimum in the absence of a clear indication
that the state or federal statute was intended to “occupy the
regulatory field” entirely. For example, state law requires that
a general plan include seven
mandatory elements. However, cities and counties are free to
adopt other elements beyond those seven—such as an agricultural
protection or economic development element—that address specific
Preemption and Charter Cities
There are actually two kinds of cities: charter and general law.
Charter cities have “local constitutions”— called charters—that
describe the organization and fundamental policies of the city.
The state constitution grants charter cities authority over
“municipal affairs” even when they conflict with state
law7. In the land use
context, the most important municipal affair is the power to
develop internal procedures, such as those to process and approve
legislative and adjudicative actions. As a result, charter cities
are exempt from some of the procedural requirements in the
Planning and Zoning Law. In other instances, however, such as the
laws governing the adoption of moratoria, implement streamlined
ministerial decision making on certain qualifying housing
development projects, and allow for the provision of density
bonuses. The Legislature has made it clear that charter cities
and general law cities have the same authority8. In recent years, the California
Legislature has increasingly limited charter city authority,
particularly in the area of affordable housing and now requires
both general law and charter cities to maintain consistency
between land use destinations in the general plan and the zoning
code, also known as “vertical consistency”.
Takings and Property Rights
The Takings Clause of the U.S. Constitution limits the police
power, not by prohibiting certain actions but by requiring just
compensation when those actions impinge too far on private
property rights. You are probably familiar with the principle
that if land is condemned for a public road, the local agency
taking the land must pay the owner the fair market value of the
land taken. This form of taking is called eminent domain. The
same general principle applies when a regulation—such as a zoning
ordinance—has the same effect as physically appropriating land.
This is known as a regulatory taking. An example would be a
regulation that zoned an individual’s parcel as a public park.
The regulation would have the same effect as a taking because it
would prevent the owner from excluding others and putting the
land to economic use.
You are most likely to encounter the takings issue when you are
denying a project or contemplating a new zoning ordinance that
will limit the use of property. The issue may also be raised when
you are imposing fees or requiring a dedication of property as a
condition of development. Unfortunately, there is a great
deal of misunderstanding about the relationship between property
rights and planning regulations. The Takings Clause is often
misunderstood to be a prohibition against any regulation that
decreases property value or prevents the owner from “doing what
they want with their land.” In reality, compensation is required
only in a very limited set of circumstances.
Most land use ordinances will not rise to the level of taking.
The Constitution permits property to be extensively regulated and
courts have recognized that land use ordinances are often as
likely to add value to a property as they are to decrease value.
Our land use system cannot treat all properties equally.
Nevertheless, some regulations may rise to the level of a
compensable taking. For example, regulations that wipe out all or
almost all of a property’s economic value may be held a taking. A
regulation that permanently places an object on or uses a
property may also be held a taking. However, these instances are
comparatively rare. In the majority of cases, local regulations
have been upheld against such claims. The following are some
rough rules that help explain why most regulations do not rise to
the level of a taking:
Claims Usually Fail When Economically Viable Uses of
Property Remain. Claims based on the notion that a
regulation denies economical uses of property will fail when
the property retains some economically viable uses. Zoning land
for agriculture use, for example, allows for an economic use
and will generally survive a takings claim even when the owner
claims the regulation is costing millions in lost development
value. The Takings Clause does not guarantee that owners will
be compensated for the most speculative use of land9.
Reasonable and Proportional Conditions on Development
are Permitted. Conditions of approval on development
do not cause a taking when they are reasonably related and
roughly proportional to the harm or impact likely to be caused
by the development10. A
condition that does not meet these standards, or even a denial
based on the applicant’s failure to agree to such a condition,
can give rise to a takings claim11. However, conditions that
are imposed by ordinance instead of on a case-by-case basis are
less likely to be held a taking12.
Landowners Must Seek A Variance Before Suing.
Courts are reluctant to require compensation unless they are
absolutely sure that a regulation or condition will be applied
in a way that amounts to a taking. Thus, landowners must
usually file two applications and seek one variance before
courts will entertain a claim. The variance procedure
guarantees that the local agency has an opportunity to take
corrective action in those circumstances where a regulation
unfairly affects a particular parcel13.
“Automatic” or Per Se Takings Are Rare.
Regulations that cause 100 percent devaluation in property or
cause a permanent physical presence on property will be found
to be a taking in most circumstances, but such regulations are
rare. It might seem that imposing a condition on
development—such as the requirement to create a park or a bike
path—is equivalent to a permanent physical occupation. The
reason why this is not the case is that the condition is based
on the development application, which is voluntarily sought by
Fairness Matters. Courts are often concerned
about the extent to which the landowner was treated fairly by
the local agency. Thus, it is always good to design efficient,
straightforward processes that are consistent with the general
plan in order to set appropriate development
These are only rules of thumb. There are exceptions. The ultimate
determination of whether an action is a taking will turn on the
facts of each case. For this reason, it is extremely important to
consult with planning staff and agency counsel when the takings
Substantive Due Process & Vested Rights
The substantive due process doctrine prohibits governmental
action that arbitrarily or unreasonably deprives a person of
life, liberty or property. For planning commissioners, this issue
arises most frequently in the context of property when an
application has proceeded far enough through the approval process
that the right to develop has attached.
When this occurs the right to develop is said to have vested.
Once a right vests, it cannot be affected by subsequent changes
in local ordinances. Generally, a right to develop will not vest
until the last permit necessary for construction has been issued
and substantial expenditures have been incurred in reliance on
the permit. However, the California Legislature has in recent
years given some qualifying housing development projects some
vested rights at the time either a preliminary application or
application that meets certain enumerated requirements under
state law, is deemed complete16. The Legislature has carved
out these exemptions to address California’s housing
crisis17. Until that time
of vesting rights, a proposed development is vulnerable to
changes in the general plan, zoning and other local regulations.
However, there are some components of this rule that warrant
Zoning Does Not Confer A Right to Develop.
Some people misinterpret zoning regulations to mean that the
level of development will be allowed automatically. Zoning
confers no such right—it is merely a designation used for
planning by local agencies. As such, it is almost always
subject to any change the governing body sees fit unless
preempted by the state18.
Initial Approval Does Not Necessarily “Lock In”
Development. Developers may argue that a preliminary
approval—such as a tentative map approval—automatically exempts
them from other ordinances that affect the development. Such
conditions are not generally locked in, however, until the last
permit is issued or, under limited circumstances, where an
applicant has acquired vested rights based on substantial work
and incurred liabilities when based on reasonable reliance on
adopted development standards19. There are also some
exceptions for housing development projects20.
Later Elements of Phased Projects May Be Subject to
Different Rules. The rules of vested rights offer less
protection to developments involving multiple discretionary
permits to be granted over an extended period of time. For
example, a developer may spend large sums on acquisition,
engineering, architectural and planning costs for a four-phase
development, but may only hold permits for phase one. To be
protected from future changes in local regulations throughout
the entire project, the developer would need to obtain vested
rights for each phase. The vesting of rights for phase one does
not vest rights for the entire project, nor does it guarantee
that additional phases will even be approved21.
Given the uncertainty associated with changing regulations,
developers will often seek to “lock in” their development plans.
The main way to do this is to enter into an agreement with the
local agency to assure that no future regulations will affect the
development or to submit a qualifying housing development project
that requires ministerial approval or limited discretionary
authority. However, a local agency cannot bind itself from
exercising its legislative power in the future22. There are several exceptions.
State law allows development applications to vest upon the filing
of a vesting tentative map or upon entry into a development agreement with the local
agency; or on the date a qualifying housing development project
application is deemed completed, as described in this paragraph.
Procedural Due Process: Notice & Hearings
A local agency must afford procedural due process before
depriving a person of a property right or liberty interest. This
typically means providing the person with notice of an impending
action and an opportunity to be heard before taking the action.
In the context of land use and zoning, local agencies can meet
this requirement by complying with the state laws that delineate
specific notice and hearing procedures23. The purpose of the notice and
the hearing requirement is not merely to go through the
motions—but to offer affected persons and the public more
generally, a meaningful opportunity to rebut the evidence that is
serving as the basis of the decision.
Procedural due process requirements apply mostly when a local
agency is acting in its quasi-judicial capacity—that is, applying
ordinances to specific properties as part of a land use
application. When the local agency is acting legislatively, due
process controls are more lenient because the legislative process
provides its own set of guarantees. However, state law requires
specific notices for a number of legislative acts, such as
rezonings and general plan amendments.
Discrimination & Equal Protection
The equal protection doctrine requires that similarly situated
persons be treated in an equal manner. However, absolute equality
is not required. Inherently, land use regulation is a system of
classifying property. Nearly every regulation will affect
different properties differently. What is significant for the
equal protection analysis is the extent to which a regulation
makes an arbitrary or discriminatory classification that affects
a fundamental right. A classification must not be arbitrary or
unreasonable and instead the difference must be related to a
legitimate governmental interest.
Courts most often will analyze equal protection claims under one
of two tests: strict scrutiny or rational basis. Most land use
regulations will be judged under the rational basis test. Thus,
if a regulation is reasonably related to a legitimate government
purpose, it will be upheld. For example, special regulations for
historic districts are rationally related to preserving community
character and judged under the rational basis standard even
though they treat historic properties differently. Strict
scrutiny is applied when a regulation abridges a fundamental
right, or applies only to a suspect class. Suspect classes
include, but are not limited to race, national origin,
disability, marital status and sexual orientation, among others.
In these cases, the government must show that there is a
“compelling interest” for the classification. For example, a
regulation that prohibited landlords from renting units to gay or
lesbian couples within the State of California would be judged
under the strict scrutiny standard and would almost certainly be
There are three things to watch out for when the equal protection
Developers Claiming Protected Status. One
tactic developers sometimes use is to argue that a regulation
unfairly singles them out. However, courts have ruled that
developers are not a suspect class and development is not a
Single Property Owner Unfairly Treated.
Sometimes, landowners will bring an equal protection claim when
they feel that they have been singled out. Such claims may
prevail when the local agency has intentionally treated a
specific landowner differently and the different treatment was
motivated by “ill will,” as evidenced by an irrational and
arbitrary demand. This issue can be related to spot zoning
issues as well25.
Regulations that Affect Low-Income Households.
One possible challenge to an ordinance is that it discriminates
against lower-income households, of which racial minorities
constitute a disproportionate percentage. Although courts have
been more willing to entertain such claims in recent years,
ordinances based on sound social or economic policies and
traditional zoning standards that are not intended to
discriminate will generally be upheld on equal protection
grounds26. However, the
California Legislature has made it more challenging to deny
housing development projects with an affordable housing
component by requiring the waiver of lawfully adopted
development standards when the standards would physically
preclude construction of affordable housing27.
First Amendments: Signs, Adult Uses & Free Speech
Land use decisions that touch on freedom of speech include sign,
tattoo parlor28 and adult
business regulation. Regulating these uses poses difficult legal
and philosophical issues. You must balance the competing goals of
having a beautiful, well-planned community with the right to sell
public wares or convey protected ideological messages.
When analyzing free speech rights, courts first classify the type
of speech being regulated. Courts have drawn a distinction
between political speech (expressing one’s views or engaging in
expressive activities) and commercial speech (providing
information about goods and services). Regulations that affect
political speech will be more strictly scrutinized. Most zoning
regulations, however, affect commercial speech. Courts have
applied the following general rules in evaluating such
Time, Place and Manner. Zoning regulations
that control the time, place and manner of speech, without
prohibiting the category of speech or activity outright will
generally be upheld. In the case of adult businesses, for
example, zoning may be used to limit the location (place),
business hours (time) and even some types of performances
(manner), but cannot totally prohibit such businesses from a
Content Neutral. The restrictions must be
content neutral. For example, with certain exceptions, it is
generally acceptable to regulate the size of a business sign
but not what message is written on the sign.
Substantial Governmental Interest. The
interest in regulating the activity must be substantial. Many
adult business regulations are predicated on limiting secondary
impacts (like crime) that are associated with such businesses
rather than the “moral” nature of the speech activity itself.
Courts have determined that this is a sufficient rationale to
justify a regulation, provided that it is not too
Alternative Avenues of Communication. There
must be a location where the speech or activity may take place.
For example, some local agencies set distance limitations (such
as 1000 feet) between adult businesses and schools. The
condition, however, must leave some places within the community
where the activity can take place.
These are all just general rules and courts often apply them on a
case-by-case basis. If you have concerns in this area, it is
always advisable to consult with your agency’s counsel.
In the past, a generally applicable land use regulation was not
deemed to substantially interfere with religion. Thus, a local
agency could require that a new church facility meet parking
requirements even if the condition would make the building
substantially more expensive and thus infeasible.
However, Congress adopted a more stringent test when it passed
the Religious Land Use and Institutionalized Persons Act
(RLUIPA)31. Under RLUIPA,
a government may not impose a land use regulation in a manner
that imposes a substantial burden on religion unless the
government demonstrates that the condition furthers a compelling
governmental interest. In addition, the condition must be the
least restrictive means of furthering that interest.
One issue that makes RLUIPA problematic for local agencies is
that the term “substantial burden” is not defined by statute.
This uncertainty makes it easier for religious groups to
challenge zoning ordinances as they apply to religious buildings.
The extra costs associated with a landmark preservation
ordinance, for example, could be determined to be a substantial
burden on a congregation (although the law remains uncertain on
The type of ancillary activities and uses that are included in
the term “religious exercise” is another unresolved issue. A
planner might make the assumption that religious exercise merely
means worship services. A particular church, on the other hand,
may apply for a permit to include a school or even a homeless
shelter on church premises on the grounds that providing such
services is a natural extension of its religion.
Because of the uncertainties associated with RLUIPA, local
agencies must be flexible when dealing with applications from
religious groups. However, they must also be careful not to favor
religious groups or they may face lawsuits alleging the
endorsement of religion in violation of the Establishment Clause
of the U.S. Constitution (the Constitution also prohibits
governments from favoring any religion). When making decisions
related to religious uses, cities and counties should maintain
detailed records that show findings of either substantial burden
or compelling government interest depending on the outcome of the