California law contains several critical limitations on the exercise of the police power conferred in Article XI, Section 7 of the state constitution.  As set forth in Government Code section 65858, the moratorium statute allows cities and counties to adopt 45-day “interim ordinances” to prohibit land uses that may conflict with a contemplated general plan amendment or another land use proposal the legislative body is studying or intends to study within a reasonable period of time.  Such ordinances can be extended so that the maximum term of the moratorium does not exceed two years.

The bar for adopting and extending such ordinances is high, however, requiring a 4/5 vote of the legislative body.  Moreover, the legislative body must find that “there is a current and immediate threat to the public health, safety, or welfare” and that the approval of a proposed land use “would result in that threat to public health, safety, or welfare.”

Published cases have held that a “current and immediate threat” exists only in certain narrow circumstances such as when the approval of a pending application or permit is imminent (see, e.g., Crown Motors v. City of Redding, 232 Cal.App.3d 173 (1991)) or when a developer has submitted an application for a given project (see, e.g., Building Industry Legal Defense Foundation v. Superior Court, 72 Cal.App.4th 1410 (1999)).  Moreover, an agency must still accept and process applications even if it has adopted or extended a moratorium.

On May 16, 2019, in an opinion originally filed on April 25, 2019, the Second District Court of Appeal certified for publication California Charter Schools Association v. City of Huntington Park, __ Cal.App.5th __ (2019) (Case No. B284162), an important new decision that applies the moratorium statute to a set of facts significantly different from those addressed in prior opinions and clarifies the steep procedural requirements of the law.

The case involved a Huntington Park moratorium ordinance on the establishment, construction, and development of charter schools, while the City considered amending its zoning code.  The City justified the ordinance on the grounds that there had been “numerous inquiries and requests for the establishment of charter schools,” including “at least five inquiries and . . . several serious sit down discussions.”

The Association challenged the moratorium ordinance on the ground that because no actual development applications were pending when Huntington Park enacted the ordinance, there was no “current and immediate threat” of a new charter school application approval to justify the use of the police power in adopting the ordinance.  The trial court denied the Association’s writ petition, but the Court of Appeal reversed.

The Court held, as a matter of law, that the ordinance is invalid because its findings regarding “numerous inquiries and requests for the establishment and operation of charter schools” did not amount to a “current and immediate threat” as required by the moratorium statute.  And the Court explained that “where the ordinance recites facts that constitute the urgency and those facts may reasonably be held to constitute an urgency, the courts will neither interfere with nor determine the truth of those facts.”  However, whether the recited facts may be held to constitute an urgency is a legal question the courts will review independently.

The moratorium statute is intended to prevent cities and counties from adopting moratoria simply to delay or impede potential land uses that may be unpopular or disliked in a given community.  Despite these limitations, moratoria are often adopted based on the thinnest of findings and under circumstances that fall far short of the required legal standard.  California Charter Schools Association is thus a helpful addition to the caselaw that provides clarity to both public agencies considering moratoria and developers and others whose property rights are affected by such ordinances.


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit