With a resounding no, the California Court of Appeal for the Fifth District answered the question of whether a county can permit the use of real property that is not allowed by the zoning ordinance even if the county grants a zoning exception in a development agreement. Such an exception is invalid where the county has not rezoned the property, amended the text of the zoning ordinance, issued a conditional use permit consistent with the ordinance, or granted a variance.

Plaintiff petitioned for a writ of mandate against the defendant county seeking to overturn the county's ratification of a development agreement. The development agreement permitted a property owner in an agriculture zone to run a business hosting wedding events, even though the zone prohibited any commercial businesses. Although the county considered amending the zoning ordinance, it did not. Instead, it created an exception contained within a development agreement and issued a conditional use permit that was inconsistent with the conditional uses permitted by the zoning ordinance. The county did not rezone the property by changing the zoning map or the text of the zoning ordinance, and the county did not grant a variance because variances cannot allow unauthorized uses. And, although the county did grant a conditional use permit, the use permitted here was not enumerated in the specific list of uses allowed by the zoning code.

In concluding that the attempted exception was invalid, the court noted that, given the wide breadth of zoning authority granted by the state Constitution, the county could have granted an exception to a zoning regulation in some other manner. However, such power is restricted by California Government Code Section 65852, which states that zoning regulations must be “uniform for each class or kind of building or use of land throughout each zone, but the regulation in one type of zone may differ from those in other types of zones.”

The court pointed out that California courts have interpreted a zoning scheme as similar to a contractual relationship: each property owner within a zone foregoes the right to use its property in certain ways in exchange for the assurance that neighboring property owners will be similarly restrained. The court here interpreted the uniformity requirement in Section 65852 as the enforcement clause of the contractual relationship, which allows property owners to contest unfair treatment. In this case, the county had unfairly treated the neighboring property owners by allowing the owner of one parcel to use its property to run a commercial business while other owners did not have the alternative to similarly use their properties; in other words, the county had impermissibly placed one property “in a class by itself.”

The court held that a development agreement does not offer another way to create an exemption from the zoning ordinance. Although the statutory scheme implementing development agreements (Section 65864 et seq.) contains some suggestion that such agreements can contain exceptions, the court states that the uniformity requirement in Section 65852 specifically forbids exceptions that are not uniform, which precludes mere statutory implication. Indeed, the main purpose of a development agreement is to vest the developer's rights under regulations existing at the time of the agreement, not to create an exemption from those regulations.

The court distinguished other cases which allow a city or county to require a property owner to fulfill certain conditions prior to rezoning the property, so long as all permissible uses are still available; or allow a city or county to create a consensual contract with a property owner which limits permissible uses. In those cases, the local agency had placed additional restrictions on the property owners in question, rather than removing restrictions from one property owner but not others.

In sum, the court held that a development agreement cannot exempt a property owner from zoning restrictions, but it does not forbid all zoning modifications in development agreements. The court states that permissible modifications could be found in instances where the agreement is more restrictive than the zoning ordinance or the agreement permits uses that are not listed in the zoning ordinance but are accompanied by a rezoning amendment