Contributed By Allen Matkins Leck Gamble Mallory & Natsis LLP
Municipalities frequently have control over the design, appearance and method of construction of new buildings. Historic buildings are typically subject to additional regulatory protections.
Certain of these controls and regulations require ministerial approvals; others may require discretionary approvals. Discretionary approvals trigger the applicability of the California Environmental Quality Act (CEQA). Additionally, there is current legislation pending that would remove municipalities’ ability to exercise discretionary approvals over projects that are properly zoned and near transit facilities, thereby eliminating the applicability of CEQA with respect to those projects.
Local municipalities typically regulate the development and use of individual parcels of real estate, but there may be other regulatory structures. For example, construction within the coastal zone is subject to regulation by the California Coastal Commission. Certain sensitive environmental properties, such as wetlands and lands located in or adjacent to state or federal parks, will also be subject to regulation by the applicable environmental authorities. All discretionary approvals are subject to regulation by CEQA.
The process for obtaining entitlements will vary depending on the size of the project, its location, the applicable municipality and whether more than one government agency is involved. If discretionary approvals are necessary, there will be public hearings. Third parties have the right to participate and object to a project that is subject to discretionary rather than ministerial approval.
Decisions by planning commissions are typically appealed to the city council, while county planning commission decisions are appealed to the county Board of Supervisors. With respect to discretionary decisions, there may also be an ability to resort to judicial process under CEQA, and challenge the project in court. It is relatively easy to challenge projects on environmental grounds, which can tie up development for years.
Developers can enter into infrastructure agreements and obtain service commitments for the supply of water and electricity, or “will serve” letters. Some local codes permit the transfer of development rights. They are not regulated under state law, but by municipal codes. It is possible to enter into development agreements with applicable municipalities.
Municipalities can exercise their police powers and obtain injunctive relief against offending projects.