On December 6, 2018, the California Attorney General issued an opinion (No. 14-403) in response to a request from Mendocino County Counsel Katherine L. Elliott to address three questions regarding the balance of land use regulatory authority between cities and counties. According to the request, in 1993 an incorporated city acquired real property, outside the city limits, in an unincorporated area of the County. When it acquired the property, the city assumed an existing lease that covered a portion of the property, becoming a lessor to the private business that was operating and continues to operate there. The Attorney General was thus asked, in this context, to determine whether and under what circumstances a city and its private lessee may be exempt from the county’s building and zoning ordinances.
The Attorney General concluded, first, that a city’s extraterritorial property the city itself uses for any city purpose is not required to comply with county building and zoning ordinances. Government Code section 53090 et seq., which forms an article entitled “Regulation of Local Agencies by Counties and Cities,” generally requires each “local agency” to “comply with all applicable building ordinances and zoning ordinances of the county or city in which the territory of the local agency is situated.” The definition of “local agency” is somewhat narrow, however, and does not include the state, a city, or a county. Thus, by excluding cities and counties from section 53090’s definition of “local agency,” the legislature did not change the balance of regulatory authority between cities and counties, and a city’s extraterritorial property is not subject to the county’s building and zoning ordinances.
Second, the Attorney General determined that neither the state constitution nor any statutes conditions a city’s freedom from county zoning regulations on the city applying its own zoning and building ordinances to the city’s extraterritorial property. In general, a city has the power, conferred by Article XI, Section 7 of the California Constitution, “to make and enforce within its limits all local police, sanitary, and other ordinances and regulations not in conflict with general laws.” Thus, provided they do not conflict with mandatory state requirements such as the California Building Standards Code, which applies to buildings throughout the state, a city is free to apply its own rules to its extraterritorial property.
Finally, in perhaps the most novel portion of the opinion, the Attorney General opined that whether a private party leasing extraterritorial property from a city is also exempt from county building and zoning ordinances depends on whether the lessee’s use of the property primarily serves the city’s purposes. Relying in part on a 1985 opinion addressing whether a state agency’s section 53090 exemption from local building and zoning regulations may be extended to its private lessee (and concluding the state lessee is exempt if the lease serves the state agency’s public purposes), the Attorney General concluded that a city’s private lessee is exempt under section 53090, so long as the lessee’s use of the property primarily serves the city’s public purposes, but that it is not exempt where the lessee’s use of the property primarily serves the lessee’s private interests. The answer whether a city’s section 53090 exemption may be extended thus depends on whether the lessee’s use of the property primarily serves the city’s purposes—in other words, whether the lessee should be viewed as if it were an agent or an arm of the city for the purpose in question.
The Attorney General provides legal opinions upon request to designated state and local public officials and government agencies on issues arising in the course of their duties. Although they are not bound by the Attorney General’s formal written opinions, the courts have accorded them “great respect” and “great weight.”
Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.
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