Local Control

County Planning Jurisdiction for the use of privately owned land, water and other resources

The "police powers" are the broad powers of regulation. As stated in Lawton v. Steele, 152 U.S. 133 (1894):

"The extent and limits of what is known as the 'police power' have been a fruitful subject of discussion in the appellate courts of nearly every state in the Union. It is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance…”

In the 1925 California Supreme Court decision in Miller v. Board of Public Works, 195 Cal.477, 485, 234 Pac. 381 the court described an expanded definition of the "police power":

"In its inception the police power was closely concerned with the preservation of the public peace, safety, morals and health without specific regard for 'the general welfare.' The increasing complexity of our civilization and institutions later gave rise to cases wherein the promotion of the public welfare was held by the courts to be a legitimate object for the exercise of the police power. As our civic life has developed so has the definition of the 'public welfare' until it has been held to embrace regulations 'to promote the economic welfare, public convenience and general prosperity of the community."

The police powers are a power of State (and its local County and municipal manifestations.) In U.S. v. Knight Co., 156 U.S. 11, the Court declared:

"It cannot be denied that the power of the state to protect the lives, health and property of its citizens and to preserve good order and the public morals, the power to govern men and things within the limits of its dominion, is a power originally and always belonging to the state, not surrendered to the general [federal] Government, nor directly restrained by the Constitution of the United States, and essentially exclusive."

In French v. Davidson (1904) 143 Cal. 658, 77 Pac. 663, the Court also determined that neither the Fourteenth Amendment nor any other provision of the Federal Constitution interfered with the power of the State to prescribe regulations to promote the health and general welfare of its people.

ARTICLE 11 of the California constitution entitled “Local Government,” SEC. 1. declares that:

(a) “The State is divided into counties which are legal subdivisions of the State...”

(b) “The Legislature shall provide for county powers..."

SEC. 7. further declares:

"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."

In 1937, the State required all cities and counties to adopt General Plans. This requirement was recodified as law in 1951 under Government Code 65000, et seq.

California Planning Law requires the adoption of a comprehensive plan for the physical development of land within the county. It delegates that authority to local counties and cities:

"Each planning agency shall prepare and the legislative body of each county and city shall adopt a comprehensive, long-term general plan for the physical development of the county or city, and any land outside its boundaries which in the planning agency's judgement bears relation to its planning." -Government Code Section 65300

Section 65300.7. Recognizes the need for local control over planning:

"The Legislature finds that the diversity of the state's communities and their residents requires planning agencies and legislative bodies to implement this article in ways that accommodate local conditions and circumstances, while meeting its minimum requirements."

There are 7 required general plan elements: Land Use; Conservation; Circulation; Open Space; Housing; Noise; and Safety. In addition to the seven required elements, a city or county may adopt additional optional elements that, in the judgment of the legislative body, relate to the physical development of the county or city. Examples might be: Recreation or Historic.

The Conservation Element addresses the conservation, development, and use of natural resources including water, forests, soils, rivers and minerals. Siskiyou County has such an element in place.

Government Code 65302 states:

(d) A conservation element for the conservation, development, and utilization of natural resources including water and its hydraulic force, forests, soils, rivers and other waters, harbors, fisheries, wildlife, minerals, and other natural resources.  The conservation element shall consider the effect of development within the jurisdiction, as described in the land use element, on natural resources located on public lands, including military installations

That portion of the conservation element including waters shall be developed in coordination with any countywide water agency and with all district and city agencies that have developed, served, controlled or conserved water for any purpose for the county or city for which the plan is prepared.  Coordination shall include the discussion and evaluation of any water supply and demand information described in Section 65352.5, if that information has been submitted by the water agency to the city or county.  The conservation element may also cover the following:

(1) The reclamation of land and waters.

(2) Prevention and control of the pollution of streams and other waters.

(3) Regulation of the use of land in stream channels and other areas required for the accomplishment of the conservation plan.

(4) Prevention, control, and correction of the erosion of soils, beaches, and shores.

(5) Protection of watersheds.

(6) The location, quantity and quality of the rock, sand and gravel resources.

(7) Flood control.

The conservation element shall be prepared and adopted no later than December 31, 1973.

The role of a general plan is to serve as the primary expression by the community of how the physical features and natural resources are to be maintained, utilized and enhanced, and how growth and development are expected to occur. The State Guidelines suggest that " preparing, adopting, implementing and maintaining a general plan serves to:

• Identify the community's land use, circulation, environmental, economic and social goals and policies as they relate to land use and development.
• Provide a basis for local government decision-making, including a nexus to support development exactions (as required by Nollan v. California Coastal Commission, 1987).
• Provide citizens with opportunities to participate in the planning and decision making process of local government.
• Inform citizens, developers, decision makers, and other cities and counties of the ground rules that will guide development within the community." (http://www.pacificmunicipal.com/oakleygp/gp_benefits.html)

The decision in Baldwin v. County of Tehama (1994) 31 Cal.App.4th 166 , 36 Cal.Rptr.2d 886 explores the issue of State preemption of the field precluding County regulation of groundwater. The court cites In re Maas (1933) 219 Cal. 422-425 [27 P.2d 373,] where the right of Orange County to use groundwater to flood land for hunting by duck clubs was upheld, denying claims the ordinance was an invasion of the police power of the state. The case stated two requirements for the exercise of County police powers:

1. That the exercise was a legitimate exercise of the police powers; and
2. That the ordinance did not conflict with general laws of the State.

In Baldwin, the Court stated that when determining whether State law preempted local regulation, “it must be shown that the general law directly or impliedly ‘covers’ the whole of the claimed field of regulation.” …”The criteria for such an implication have been articulated as follows.

'[W]e may infer an intent to preempt [the field] only if ' '(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; [or] (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action ...." ' [Galvan v. Superior Court (1969)] 70 Cal.2d [851] at pp. 859-860 [76 Cal.Rptr. 642, 452 P.2d 930], quoting [In re] Hubbard [(1964)] 62 Cal.2d [119] at p. 128 [41 Cal.Rptr. 393, 396 P.2d 809]; see also [citations]; cf. Rossmann & Steel, Forging the New Water Law: Public Regulation of "Proprietary" Groundwater Rights (1982) 33 Hastings L.J. 903, 937-942.)" (Fisher v. City of Berkeley (l984) 37 Cal.3d 644, 708 [209 Cal.Rptr. 682, 693 P.2d 261].)”

The Court in Baldwin further stated : “Even in matters of state-wide concern ..., the city or county has police power equal to that of the state so long as the local regulations do not conflict with general laws." (Chavez v. Sargent (1959) 52 Cal.2d 162, 176 [339 P.2d 801], citations omitted.) fn. 4 Nor do the references to "the State," a phrase which may include counties. (See, e.g., Cal. Const. art. XI, § 1, subd. (a) ["The State is divided into counties which are legal subdivisions of the State."].)

State regulation of land and resource use on private lands is exercised through specific agencies that have been delegated specific and limited authorities by the legislature. These authorities have been codified. These agencies do not have general land use planning authority.

The police powers were delegated by the People of California to County government through the California constitution ARTICLE 11, section 7. The elected body of the County Board of Supervisors is invested with these police powers of regulation .

In Eubank v. City of Richmond, 226 U.S. 137 (1912), the Supreme Court shot down an ordinance which had established a neighborhood committee which was to regulate land use by a 2/3rds vote. The Court stated:

"It [the ordinance] leaves no discretion in the committee on streets as to whether the street line shall or shall not be established in a given case. The action of the committee is determined by two thirds of the property owners. In other words, part of the property owners fronting on the block determine the extent of use that other owners shall make of their lots, and against the restriction they are impotent. This we emphasize. One set of owners determines not only the extent of use, but the kind of use which another set of owners may make of their property. In what way is the public safety, convenience, or welfare served by conferring such power? The statute and ordinance, while conferring the power on some property holders to virtually control and dispose of the property rights of others, creates no standard by which the power thus given is to be exercised; in other words, the property holders who desire and have the authority to establish the line may do so solely for their own interest, or even capriciously. Taste (for even so arbitrary a think as taste may control) or judgment may vary in localities, indeed, in the same locality. There may be one taste or judgment of comfort or convenience on one side of a street and a different one on the other. There may be diversity in other blocks; and, viewing them in succession, their building lines may be continuous or staggering (to adopt a word of the mechanical arts) as the interests of certain of the property owners may prompt against the interests of others. The only discretion, we have seen, which exists in the street committee or in the committee of public safety, is in the location of the line, between 5 and 30 feet. It is hard to understand how public comfort or convenience, much less public health, can be promoted by a line which may be so variously disposed.

“We are testing the ordinance by its extreme possibilities to show how in its tendency and instances it enables the convenience or purpose of one set of property owners to control the property right of others, and property determined, as the case may be, for business or residence,-even, it may be, the kind of business or character of residence. One person having a two-thirds ownership of a block may have that power against a number having a less collective ownership. If it be said that in the instant case there is no such condition presented, we answer that there is control of the property of plaintiff in error by other owners of property, exercised under the ordinance. This, as we have said, is the vice of the ordinance, and makes it, we think, an unreasonable exercise of the police power.”

City & County & LAFCO INFO.

           LUPIN

          Planning Zoning and Development Laws; 2002 Supplement

County Code: Chapter 11 Right to Farm Ordinance
County Code: Chapter 12. County Participation in State and Federal Agencies Land Transactions ("coordination" regarding rules and regulations)
Chapter 13. Groundwater Management

When appointed officials rule the land - Henry Lamb
The Consensus Process: Developing an appropriate response - H. Lamb