The General Plan
Every city and county must adopt a general plan containing policies for it physical development and environmental protection. Every plan must have 7 elements: land use, circulation, housing, conservation, open-space, noise and safety. All land use decisions of the city or county must be consistent with the general plan –from building permits, variances and conditional use permits and to zoning ordinances, large subdivisions and high-rises. The general plan has been called a “constitution” for future development and the “lynchpin” of land use law.
The Zoning Ordinance
Cities and counties regulate the uses of land through ordinances that create “zones” for the different types of uses to which land is put (i.e., residential zones, commercial zones, industrial zones, agricultural zones, etc.), and restrict in detail such things as the allowable building heights and square footage in the zones.
Uses not permitted by the zone but that in small numbers service the permitted uses, for example, a convenience store in a residential area, are permitted under zoning ordinances through use permits.
Where the restrictions of the zoning ordinance prevent a lot in the zone from being put to the main use permitted in the zone because of special circumstances such as lot size or topography, the use may be permitted even though it violates the restrictions. The most common example is permitting a residence on a lot that does not meet minimum size requirements.
The California Environmental Quality Act (“CEQA”
Every application for any kind of land development must be processed under this law. First, it must be determined whether the project may have a significant effect on the environment. Many small projects, for example, building permits for single family residences or additions to existing buildings, are “Categorically Exempt,” i.e., have been found to have only insignificant effects as a matter of law.
If the project is not categorically exempt, it is subjected to an “Initial Study,” which asks numerous questions about the characteristics of the project that are designed to establish whether the project will or will not have a significant effect on the environment. If the Initial Study shows that the project clearly will not have a significant effect, a “Negative Declaration” is issued, stating that there will be no significant effect, and processing is complete. If the Initial Study shows that the project may have a significant effect, but that the effect can be eliminated or reduced to an insignificant level by the use of mitigation measures, then a “Mitigated Negative Declaration” will be adopted if the project developer agrees to implement the mitigation measures.
If the Initial Study shows that the project may have a significant effect(s) and there are no simply mitigation measures that eliminate the effect(s) or reduce it/them to insignificance, then the developer must prepare a “Draft Environmental Impact Report” (“Drat EIR”) for the project. This is a detailed description of: (1) the potential significant effects of the project, (2) any mitigation measures that will reduce or eliminate the significant effects, and (3) a reasonable range of alternatives to the project as applied for that will mitigate or eliminate the significant effects, including the “no project” alternative, and (4) any growth inducing impacts, cumulative impacts or significant and irreversible changes of the project.
The Draft EIR is then circulated for public review and comment. When the comment period is closed, the developer must evaluate and prepare written responses to the comments made by members of the public and governmental agencies. The Draft EIR, public and governmental agency comments and the written responses to the comments make up the “Final EIR,” which the government agency with the authority to approve or deny the project then certifies as complete, or sends back for further work if it is incomplete for some reason pointed out in the comments. When the Final EIR is certified as complete, the government agency makes findings about the environmental impacts of the project, and decides whether to approve or disapprove it. If it approves, it may approve an alternative project revealed in the EIR, or a modified project that has incorporated one or more mitigation measures, or the project as originally submitted, despite any significant effects, if it issues a “Statement of Overriding Considerations” that finds the benefits of the project to outweigh its adverse environmental effects.
For a detailed treatment of CEQA law, see “Guide to CEQA,” available through Solano Press Books.