Foothill Communities Coalition v. County of Orange: New California Court of Appeal Upholds Use of "Spot Zoning" Where a "Substantial Public Need" Exists

by Jeffer Mangels Butler & Mitchell LLP

Spot zoning - the practice of singling out a parcel of property for either more or less restrictive zoning regulations - does not always constitute an impermissible abuse of discretion according to a new opinion from the California Court of Appeal in Foothill Communities Coalition v. County of Orange that could potentially alter the way spot zoning is viewed in California.

Factual Background

The Roman Catholic Diocese of Orange owns property in an unincorporated area of Orange County near Tustin. In 2003, the Diocese decided to develop the property as a senior residential community. Under the County's North Tustin Specific Plan ("NTSP"), the property was designated for residential single-family use. In approving the project, the County passed an ordinance amending the NTSP to add a new zoning district for senior residential housing and changed the property's zone to the new senior residential housing designation.

A community group sued alleging that the zoning change created an instance of impermissible spot zoning. Petitioner prevailed in the trial court. The Court of Appeal, however, reversed.

Court of Appeal Analysis

As the court explained, "[t]he essence of spot zoning is irrational discrimination." "Spot zoning occurs where a small parcel is restricted and given lesser rights than the surrounding property, as where a lot in the center of a business or commercial district is limited to uses for residential purposes thereby creating an 'island' in the middle of a larger area devoted to other uses." Spot zoning generally involves a small parcel of land. As the court explained, the larger the property the more difficult it is to establish improper spot zoning. Moreover, spot zoning may also not be found where the property is connected on one or more sides to property with like zoning.

Turning to the Diocese's project, the court was first confronted with an issue of first impression: whether spot zoning will be found to exist where a small parcel is given greater rights than the surrounding property. Typical spot zoning claims involve property being singled out for discriminatory treatment by being subjected to more restrictive zoning than surrounding parcels. The Diocese contended that a spot zoning analysis cannot be extended to situations where a single property is subjected to less restrictive regulations. The court rejected the argument citing to several prior opinions that had "indirectly" addressed the issue and holding that, "[a] spot zone results when a small parcel of land is subject to more or less restrictive zoning than surrounding properties." (Emphasis in original).

That did not end the inquiry, however, in that the court further found that, "where a small island is created in the midst of less restrictive zoning, the zoning may be upheld where rational reason in the public benefit exists for such a classification." In other words, a spot zone is permissible where substantial evidence in the record establishes that a "substantial public need exists" for the spot zone. Examining both state law and the County's general and specific plans citing the need for senior housing, the court found that, "[t]he creation of the senior residential zoning district is in the public interest" and upheld the County's actions.

Concluding Thoughts

The court's opinion in the Foothill Communities case is potentially troubling as it may portend a more lax form of review in spot zoning cases, which is seemingly at odds with cases involving more restrictive zoning regulations, such as the Fourth Appellate District's opinion in Avenida San Juan Partnership v. City of San Clemente and the suggestion in Justice Mosk's concurring opinion in Ehrlich v. City of Culver City that, "a more rigorous form of judicial review, fueled by a suspicion of legislative motive, has been employed when [a] regulation applies uniquely to a single property owner - so-called 'spot zoning.'" It remains to be seen whether the Foothill Communities' potentially more lax "public need" analysis gains traction or is limited to situations involving less restrictive spot zoning cases.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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