About Amerisurv| Contact    
Magazine | Newsletter    
Flickr Photos | Advertise    
HomeNewsNewsletterAmerisurv DirectoryJobsStoreAuthorsHistoryArchivesBlogVideosEvents

Sponsored By

Software Reviews
Continuing Series
An RTN expert provides everything you need to know about network-corrected real-time GNSS observations.
Click Here to begin the series,
or view the Article PDF's Here
76-PageFlip Compilation
of the entire series
Test Yourself

Got Answers?
Test your knowledge with NCEES-level questions.
  Start HERE
Meet the Authors
Check out our fine lineup of writers. Each an expert in his or her field.
Wow Factor
Sponsored By

Product Reviews
Partner Sites







Spatial Media LLC properties




Home arrow Archives   The American Surveyor     

Footsteps: Avienda San Juan Partnership vs. the City of San Clemente Print E-mail
Written by Landon Blake, PS   
Sunday, 23 December 2012

A 299Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

In this installment of Footsteps we review a recent court case that involved "spot zoning" of a 2.85 acre parcel in the City of San Clemente, California. A review of this case will help us become more familiar with the principles of land zoning in the United States. The case also has important lessons both for agency staff that make land zoning decisions and land surveyors that deal with these agencies when working on land development projects.

We begin our review with an examination of the timeline for events related to the court case. We will then examine the decisions by both the trial and appeals court in this case. To conclude, we'll consider some of the lessons we can take from the case.

1980: Avienda San Juan Partnership (ASJP) purchases the subject parcel in this case. The subject parcel is a 2.85 acre parcel in the City of San Clemente, California that abuts the public road named Avienda San Juan. At the time of the ASJP purchase, the subject parcel is zoned for 6 dwellings per acre.

Early 1980's: The City of San Clemente (City) approves plans, including a tentative parcel map, for ASJP to subdivide the subject parcel into four (4) single family lots. Opposition to the subdivision arises in the neighborhood.

1983: A landside occurs near the subject parcel, but does not impact it. A group of neighbors of the subject parcel petition the City to make the subject parcel open space. The City attorney determined rezoning the property would be a government "taking" that would require compensation be provided to ASJP. The City Engineer did not see a need to reconsider the approval of the tentative parcel map for the subdivision of the subject parcel.

1993: The City amends its general plan to impose zoning that allows 1 home per 20 acres on several parcels, including the subject parcels. Surrounding parcels remained zoned to allow four (4) homes per acre.

1996: In an effort to formally rezone the subject parcel and several other parcels, the City approves zoning changes to comply with the 1993 general plan.

2004: ASJP hires a civil engineer to assist with the development of the subject parcel and learns the zoning of the subject parcel has been changed.

9/2006: ASJP submits a development application to build four (4) homes on the subject parcel.

2/2007: The City Planning Commission recommends denial of the ASJP development application.

7/2007: The City Council adopts a resolution denying the ASJP development application for the subject parcel.

Trial Court Decision--Part 1
The trial court trial was split into two (2) parts. In the both parts the judges of the trail ruled in favor of ASJP. In the first part decision, the trial court found the following:
1. The City did not give adequate notice to AJSP of the zoning change to the subject parcel. No direct notice (such as a letter) was provided to the owners, and neither the published newspaper notices nor the general plan amendment contained a map that would have allowed ASJP to understand their parcel was being rezoned.
2. The zoning change on the subject parcel was "arbitrary and capricious". It was not based on reasonable causes, especially compared to the zoning of the surrounding parcels.

The trial court struck done the City's decision regarding the development of the subject parcel.

Trial Court Decision--Part 2
In the second part of the trial, the court also ruled in favor of ASJP and chastised the City. It found the following:
1. The City had deprived ASJP "of all economically viable use of the parcel".
2. The City's reasons for the zoning change were not valid. The real reason the court changed the zoning was it wanted the parcel to be preserved as open space.
3. The City did not seriously consider ASJP development application, as it was obligated to do.
4. The City ignored its own ordinances when it made the zoning changes.
5. The "City targeted the property for the state purpose of protecting open space, thus forcing the plaintiff to bear a burden which should be borne by the public as a whole".

The Appeals Court Decision
The appeals court agreed with the trail court's decision, and went further to criticize the City for engaging in the practice of "spot zoning". It also found the city zoning change did not have to deny ASJP all use of the subject parcel for a government "taking" worthy of compensation to take place. It didn't matter that the City made no "physical invasion" of the subject parcel. The regulation only had to go "too far" to qualify as a government taking. In this case, the appeals court found, the regulation did go too far. ASJP was entitled to have the parcel zoning revert, or to be compensated for the regulatory taking.

The appeals court also agreed the City's stated reasons for rezoning the subject parcel were not valid. In this determination the appeals court used practical reasoning about the development of the parcel and compared the subject parcel to other similar parcels in the City. For example: The City claimed the zoning change was to protect areas in "canyons", but the appeals court noted the subject parcel was not in a canyon, but merely on a slope, like most of the topography in the City.

In its decision the appeals court describes "spot zoning" in detail. I'd like to repeat the court's definition here because I believe this is an important concept in land planning. The definition in this case was taken from another case cited by the appeals court, Arcadia Development Company Versus City of Morgan Hill:

"Spot zoning occurs where a small parcel is restricted and given lesser rights than the surrounding property, as where a lot in the center of a business or commercial district is limited to uses for residential purposes thereby creating an `island' in the middle of a larger area devoted to other uses."

In a future installment of Footsteps I'd like to take a closer look at Arcadia Development Company Versus City of Morgan Hill so we can have a more detailed discussion of "spot zoning".

Important Lessons
What important lessons can we take away from this case? There are several. Let's separate our lessons into two (2) groups. The first group will be lessons for land surveyors that work for a public agency and may be involved in the land planning/land zoning process. The second group of lessons will be for land surveyors in private practice that are guiding clients through the land development process.

Lessons for Land Planners
1. Exercise caution when using land zoning regulations as a tool to acquire or preserve open space. Although this may be allowed by law, recognize that specific steps must be followed or a government taking may result. For example: Were land owners impacted by the zoning change provided with adequate notice and afforded due process? This case provides an example of what the courts may require for "adequate notice".
2. Consider each land development application by a land owner carefully. Document your evaluation of the application and its results.
3. Be fair. Ask these questions: Are you depriving land owners of economic value of their property? If so, are you allowed by the law to do so? Even if you have the legal authority to do so, will your actions build a stronger community and respect for your institution or agency?

Lessons for Land Developers
1. Be aware of land zoning changes in your area of practice. Ask yourself these questions: Who are going to be impacted by these changes? What are the consequences? Are any of my current, or potential, clients going to be impacted?
2. Be on the look out for practices of spot zoning. If you think spot zoning has occurred, talk to your client about it and encourage them to seek qualified legal counsel. Nobody likes confrontation with a public agency, but this case clearly shows the City was out of line. Do your best to prevent a public agency from trampling on your clients private property rights. You can often use your existing relationship with agency staff to prevent or resolve conflicts.
3. Document all submittals and correspondence with the public agency on a land development project. This information can be important in later legal disputes. If a land planning decision is made that is detrimental to your client, ask the reviewing agency for the reasons behind the decision, and get these in writing. Review them with your client.

The City of San Clemente was clearly behaving badly in this case. It may have been an admirable goal to preserve the subject parcel as open space, but there were much better ways to accomplish this goal. The citizens of the City should have shared the burden of this open space preservation; it should not have been solely born by ASJP. The City should have acted fairly, instead of giving into pressure from neighbors opposed to development, neighbors that had likely already developed their own parcels.

Landon Blake is currently project manager and project surveyor for a small civil engineering and land surveying company in California's Central Valley. Licensed in California and Nevada, his many activities include speaking and teaching at group conferences around the state.

A 299Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

< Prev   Next >

 American Surveyor Recent Articles
Thought Leader: Land is Too Important to Be Left to Land Specialists
A while back I was searching the Internet for an old treatise on land titles. A Google query yielded a book published in 1914. The author was Charles Claudius Kagey and the book was titled "Land Survey and Land Titles, a book for boys and girls, a reference volume for property owners, a text ....
Read the Article
Jason E. Foose, PS 
Decided Guidance: Wacker vs. Price - Irony in Sevenfold
This month's case takes us to Phoenix, Arizona in 1950. The Arizona Supreme Court went all guns-a-blazin' in Wacker vs. Price (216 P.2d 707 (Ariz. 1950)). Maybe it's just me, but I'm sensing plenty of irony and have taken license to point it out along the way. I like what the Court did with this case ....
Read the Article
Allen E. Cheves 
Around the Bend - A Visit to Carlson Software
The Ohio River is one of America's greatest, running near 1,000 miles between Pittsburgh and the Mighty Mississippi. Much of the coal and other products that fueled our nation's industrial expansion flowed between the shores of this maritime ....
Read the Article
Lee Lovell, PS 
Surveying & Mapping Economics Part 3 - Customers & Services
This article continues an inquiry into the economic conditions of the Surveying and Mapping industry (NAICS 541370) using data from the U.S. Census Bureau. This time we will look at customers and services. The data comes from the Economic Census conducted every 5 years on American ....
Read the Article
Jerry Penry, PS 
True Elevation: Black Elk Peak
Black Elk Peak, located in the Black Hills region of South Dakota, is the state's highest natural point. It is frequently referred to as the highest summit in the United States east of the Rocky Mountains. Two other peaks, Guadalupe Peak in Texas and ....
Read the Article
Larry Trojak 
Bringing The Goods - Mobile Scanning an Integral Component
When Jim Smith, Jerrad Burns and Charlie Patton left the Memphis division of a major construction company in 2015, they took with them the knowledge of how to get even the most complex jobs done and what equipment could best serve them in making that happen. So when they joined West ....
Read the Article
Lee Lovell, PS 
Test Yourself 41: Integers, Integers, and Integers
ABF is a 5:12:13 triangle, ACF is a 48:55:73 triangle, ADF is a 3:4:5 triangle, and AEF is a 7:24:25 triangle, all with integer sides and inscribed in a semi-circle. What are the lengths of BC, CD, and DE? ....
Read the Article
Wendy Lathrop, PS, CFM 
Vantage Point: Sunset or Sunrise?
While we often think of legislated government programs as static, they do change over time. Such evolution and opportunity for transformation are part of the dialogue in reauthorizing these programs. Every so many years there is a sunset on each government program, and this September is the ....
Read the Article


Amerisurv Exclusive Online-only Article ticker
Featured Amerisurv Events
List Your Event Here
contact Amerisurv


JAVAD Intros
Spoofer Buster

press [at] amerisurv.com
Online Internet Content


News Feeds

Subscribe to Amerisurv news & updates via RSS or get our Feedburn
xml feed

Need Help? See this RSS Tutorial

Historic Maps

post a job
Reach our audience of Professional land surveyors and Geo-Technology professionals with your GeoJobs career ad. Feel free to contact us if you need additional information.


Social Bookmarks

Amerisurv on Facebook 

Amerisurv LinkedIn Group 

Amerisurv Flickr Photos 

Amerisurv videos on YouTube 



The American Surveyor © All rights reserved / Privacy Statement
Spatial Media LLC
905 W 7th St #331
Frederick MD 21701
301-695-1538 - fax