193 / Critical Reciprocity

Read this in the original at www.gapatton.net

In December 2007, the State of California Court of Appeal for the Fifth Appellate District handed down an important decision in the case of Neighbors in Support of Appropriate Land Use v. County of Tuolumne.

"We begin," said the Court, "by stating the question presented in this case. That is, can a county approve an application to devote a parcel of real property to a use disallowed by the applicable ordinance even though the county does not rezone the property to a district allowing the use, does not amend the text of the zoning ordinance to allow the use in the existing district, does not issue a conditional use permit consistent with the zoning ordinance, and does not grant a variance? We conclude that it cannot."

It may be hard to believe, but Boards of Supervisors and City Councils routinely approve projects that do not conform to their own land use regulations, on the basis that since these regulations are, ultimately, under the control of the Board or the Council, it is perfectly acceptable for the Board or Council to take a shortcut to the bottom line. Since the Board or Council could have adopted rules allowing the particular use, they can approve the use even though the rules they have adopted don't permit it.

That is the way many Boards and City Councils act, and Courts sometimes let them get away with it, deferring to the right of elected officials to do what they think best. The Fifth District Court of Appeal is to be commended, in this case, for its willingness to say "no."

I am citing this case to you, however, for another proposition (aside from the somewhat unusual and happy fact that the Court held that the Board of Supervisors had to follow its own land use regulations).

In analyzing the County's claim that it ought to be able to disregard its own rules (since it ultimately made the rules), the Court cited another case (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517-518), and said this:

“A zoning scheme, after all, is similar in some respects to a contract; each party foregoes rights to use its land as it wishes in return for the assurance that the use of neighboring property will be similarly restricted, the rationale being that such mutual restriction can enhance total community welfare. If the interest of these parties in preventing unjustified variance awards for neighboring land is not sufficiently protected, the consequence will be subversion of the critical reciprocity upon which zoning regulation rests.”

I like that phrase, "critical reciprocity." The world of regulation that we inhabit is based on the idea that we can all benefit from a set of rules that constrain our individual freedom, if these rules are equitably and consistently applied. This idea, actually, is precisely that "social contract" we've heard about.

Where it all goes wrong is when this kind of "critical reciprocity" isn't provided to everyone, and some people can break the contract and be rewarded for it.

It's not a happy barnyard when "some pigs are more equal than others."