A county cannot employ a development agreement to permit a use not otherwise allowed by zoning, the Fifth District Court of Appeal has ruled. In the first published decision to find a substantive limit to the development agreement law, the court said Tuolumne County could not use a development agreement allowing one agricultural property owner to conduct weddings and other events that are not allowed by the applicable zoning district and county zoning ordinance.

The county violated the uniformity requirement in Government Code § 65852, which requires that regulations within a zone be the same, according to the court. The fact that the county used a development agreement did not change the uniformity mandate.

"The development agreement law does not authorize cities and counties to create forms of zoning disunity they otherwise lack authority to create," Justice Rebecca Wiseman wrote for the unanimous three-judge panel.

Five years ago, Ronald and Lynda Peterson filed an application with the county seeking to use their 37-acre parcel for hosting weddings and similar events. Their property was zoned Exclusive Agriculture, 37-acre minimum (AE-37), a zoning that did not provide for weddings and other commercial events with or without a conditional use permit.

Some neighbors submitted opposition letters to the application because of noise and parking concerns. County planners and the Planning Commission recommended denial of the application, and during a September 2003 meeting of the Board of Supervisors, the Petersons withdrew their application. One month later, they submitted a revised application that relied on proposed ordinance amendments that would have permitted weddings, lawn parties and similar outdoor business activities in the AE zoning district.

Supervisors declined to approve these amendments, but they did agree to create a special exemption for the Petersons by way of a development agreement approved in July 2005. The ordinance approving the development agreement granted the Petersons the right to have "weddings, retirement or birthday parties, service club functions, and similar activities as conditional uses." At the same time, the board approved a conditional use permit allowing the uses, and a mitigated negative declaration.

A group called Neighbors in Support of Appropriate Land Use sued, arguing that the county lacked authority to approve the Petersons' application and violated the California Environmental Quality Act. Tuolumne County Superior Court Judge James Boscoe agreed with the former claim, and he declared the development agreement and conditional use permits void. Judge Boscoe determined the CEQA claim was not ready for judicial review. The county appealed, and the Fifth District upheld the lower court.

The question, according to the appellate court, was this: "[C]an a county approve an application to devote a parcel of real property to a use disallowed by the applicable ordinance even though the county does not rezone the property to a district allowing the use, does not amend the text of the zoning ordinance to allow the use in the existing district, does not issue a conditional use permit consistent with the zoning ordinance, and does not grant a variance?"

The court's answer was no.

"If a zoning scheme is like a contract, the uniformity requirement is like an enforcement clause," Wiseman wrote. "By creating an ad hoc exemption to benefit one parcel in this case — an exception that was not a rezoning or other amendment of the ordinance, not a conditional use permit in conformance with the ordinance, and not a proper variance — the county allowed this ‘contract' to be broken."

"Instead," Wiseman summed up, "the county simply let one parcel and property owner off the hook."

The county argued that the development agreement law (Government Code § 65864 et seq.) lets development agreements specify uses not allowed by a zoning ordinance, that the county can use the law to permit exceptions, and that a development agreement need not be consistent with zoning ordinances.

But the court again emphasized the uniformity requirement. The requirement, the court said, trumped any exceptions to the requirement that the county claimed are contained in the development agreement law.

The Case:
Neighbors in Support of Appropriate Land Use v. County of Tuolumne, No. F051690, 07 C.D.O.S. 14060, 2007 DJDAR 18104. Filed December 7, 2007.
The Lawyers:
For Neighbors: J. William Yeates, Kenyon Yeates, (916) 609-5000.
For the county: A. Paul Griebel, county counsel's office, (209) 533-5517.