Prior Law Section

Prior Law Section - GENERAL LEGAL BACKGROUND We begin with...

Info iconThis preview shows pages 1–3. Sign up to view the full content.

View Full Document Right Arrow Icon
GENERAL LEGAL BACKGROUND We begin with a general legal overview in order to place the issues in proper context. The Housing Element Law, like the Least Cost Zoning Law, is one component of state laws affecting land use, which is otherwise largely a local function. I. The Source of Local Authority—The Police Power Under the California Constitution, a “county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” (Cal. Const., art. XI, § 7.) This authority is often referred to as the police power. (75 Ops.Cal.Atty.Gen. 239, 240 (1992); see, e.g., Candid Enterprises, Inc. v. Grossmont Union High School Dist . (1985) 39 Cal.3d 878, 885.) The police power is broad. As the California Supreme Court has stated: “Under the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law. (Cal. Const., art. XI, § 7.) Apart from this limitation, the ‘police power [of a county or city] under this provision . .. is as broad as the police power exercisable by the Legislature itself.’ ” ( Candid Enterprises, Inc. v. Grossmont Union High School Dist ., supra , 39 Cal.3d at p. 885.) It is from this fundamental power that local governments derive their authority to regulate land through planning, zoning, and building ordinances, thereby protecting public health, safety and welfare. ( Berman v. Parker (1954) 348 U.S. 26, 32-33; see generally, Curtin, California Land Use and Planning Law (26th ed. 2006) pp. 1-4; Hagman et al., Cal. Zoning Practice (Cont.Ed.Bar 1969) §§ 4.14, 4.16, pp. 112-113; id. (Cont.Ed.Bar 2005 supp.) §§ 4.14, 4.16, pp. 231- 232.) II. State Planning Laws and the General Plan While the police power is the constitutional source of local governments’ land use authority, the framework for the exercise of that power is provided by the state’s land use
Background image of page 1

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
planning statutes. (§§ 65100-65910; see L.I.F.E. Committee v. City of Lodi (1989) 213 Cal.App.3d 1139, 1148; Curtin, California Land Use and Planning Law, supra, p. 5.) Among other things, state planning law requires adoption of a general plan. (§ 65300.) In the universe of local land use enactments, the general plan is “at the top of ‘the hierarchy of local government law regulating land use.’ ” ( DeVita v. County of Napa (1995) 9 Cal.4th 763, 773 ( Devita ).) Our state’s high court has described “the function of a general plan as a ‘constitution,’ ” and has labeled it the “ ‘basic land use charter governing the direction of future land use’ ” in the locality. ( Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540, 542; see also, e.g., DeVita , supra , at p. 773.) Local land use decisions must be consistent with the general plan. Thus, for example, zoning ordinances, which are subordinate to the general plan, are required to be
Background image of page 2
Image of page 3
This is the end of the preview. Sign up to access the rest of the document.

This note was uploaded on 04/18/2011 for the course LAW 0856 taught by Professor Hodge during the Fall '10 term at Temple.

Page1 / 7

Prior Law Section - GENERAL LEGAL BACKGROUND We begin with...

This preview shows document pages 1 - 3. Sign up to view the full document.

View Full Document Right Arrow Icon
Ask a homework question - tutors are online