Making Changes to the General Plan and Zoning Ordinance

California law requires that each county and city in the state develop and adopt a general plan. The general plan is a “blueprint” for development. It is a document that is required to address land use, circulation (traffic), housing, conservation, open space, safety, noise and the general needs of the city. General Plans may have a 20 to 30 year planning horizon. Why such a long timeline? Because, that is how long it can take to accomplish the vision set forth in the General Plan.

At the time of incorporation, July 1, 1999, the City of Oakley automatically adopted the Contra Costa County General Plan, as well as the County Zoning Code and other County regulations. These County regulations allowed the City to operate as new documents were prepared for the new City.

We don’t live in a static environment, so the planning process evolves. The General Plan can be revised and amended. By law, the City Council can amend the General Plan only four (4) times a year. Multiple amendments approved concurrently only count as a single amendment.

The portion of the General Plan that is amended more often than others is the Land Use Element. The Land Use Element is the fundamental component of a General Plan, and the one upon which all other sections are built, because it addresses the physical development of the Oakley. It establishes the general polices for the types and location of land uses throughout the city, such as residential, commercial, industrial, agricultural, open space, recreation and public uses. It also addresses the permitted density and intensity of the various land use designations.

General Plan Amendments may be initiated by the City or private property owners. An application for a change is submitted to the City. After the general plan amendment application is accepted as complete, work begins on determining the appropriate type of environmental document for the project. Information is sent to various local, state, federal, and private agencies asking for their comments. Upon receipt of those comments, an Initial Study is performed and the environmental document is prepared. The California Environmental Quality Act (CEQA) requires that an environmental study be prepared for some types of projects. The environmental study can take the form of a Negative Declaration, a Mitigated Negative Declaration, or an Environmental Impact Report.

The City’s Zoning Ordinance is the primary tool to implement the General Plan. The Zoning Ordinance provides detailed standards for development or the use of land. These standards include what types of uses are permitted in particular zone, minimum lot size, height restrictions, building setbacks, parking requirements, wall heights, sign criteria and other standards.

In accordance with State law, a request for a zone change can only occur when the requested change conforms to the City General Plan land use map designation for the property and applicable General Plan policies. If they are not, a request for a General Plan amendment must accompany the zone change request.

Any changes to the General Plan and Zoning Ordinance must be carefully considered. If the City were to initiate a change that would affect the value of the property, such as “down zoning” a piece of property by amending the General Plan designation to provide a lower density of development or reverting to lower-intensity uses, it would more than likely result in a “taking”.

A “taking” can occur as a physical taking, such as the use of eminent domain to build roads, or as a “regulatory taking” which is considered to be an uncompensated taking of private property occurring through government regulation.
Everyone who buys property, whether its our primary home or for future development, has an expectation of a return on our investment. If we, as a City, were to pass a regulation or ordinance that would substantially reduce the value of that investment the City could be required to pay damages, which could include the value of the property and the lost profit when the developer did not meet his investment expectations.

The takings law, as stated by U.S. Supreme Court in Eastern Enters. V. Apfel (1998) 524 U.S. 498, is “among the most litigated and perplexing in current law”. As each case is evaluated it is important to remember a guiding principal set forth in the first takings case, Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393; “While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking”

As a long-term policy document with a 20-year planning horizon, the General Plan will likely undergo course corrections and refinements. While planning is a continuous process and periodic review to consider changes in circumstances is necessary, the Plan must also represent a sufficiently solid vision for long-term implementation such as infrastructure investments. The Plan should strike a balance between the flexibility needed to respond to unique situations and the rigidity necessary to guide development decisions in a predictable and consistent manner. As a “constitution” for future development, some aspects should be considered foundational and not subject to interim change.

About Kevin

Councilmember - City of Oakley, Manager of Mainframe Operations and Optimization – USS-POSCO INDUSTRIES, Co-Founder and Board Member - Friends of Oakley A Community Foundation, Commissioner - Contra Costa Transportation Authority, Board Member - Tri Delta Transit, Transplan, San Joaquin Joint Powers Authority and RD 2137, Advisory Board – Opportunity Junction
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