Public and private land use controls

A buyer may own a parcel in fee simple and still be unable to construct the building desired. Land use can be limited by public law, a recorded private restriction, an easement, or the parcel's physical conditions. These are distinct sources of limits. A building permit does not ordinarily cancel an enforceable private covenant, and an association approval does not excuse violation of a public building code.

The central exam task is to identify the source of authority. Government regulation generally arises under public powers. Restrictions agreed to by private parties arise through deeds, declarations, covenants, and other enforceable instruments. Both can affect the same project.

Police power supports regulation for public health, safety, welfare, and related purposes. Zoning, building codes, and many safety regulations fit this category. It is broader than the work of a police department. A city imposing a lawful setback normally regulates the use of private property without purchasing the setback area.

Eminent domain is the power to acquire private property for public use subject to constitutional requirements, including just compensation. Condemnation is the legal process used to exercise that power. This meaning of condemnation differs from a building official declaring a structure unsafe, which is ordinarily a regulatory action.

An owner alleging that governmental conduct has taken or damaged property without the required compensation may bring an inverse condemnation claim. Not every reduction in property value caused by regulation qualifies as a compensable taking. The existence of a taking is a legal question requiring more than a comparison of before-and-after asking prices.

Taxation funds public functions. An ad valorem property tax relates to assessed value. A special assessment is associated with a specific improvement or benefit under governing law. These are not necessarily calculated on the same basis. California's assessment system and acquisition-value rules are addressed in the transfer and taxation material.

Escheat addresses property without a legally entitled owner or successor under applicable law. In the inheritance setting, property may eventually pass to the state when no qualified heirs or other successors exist. A person dying without a will does not automatically trigger escheat: intestate succession generally identifies heirs first.

California cities and counties adopt general plans, long-term policy frameworks covering land use and required related subjects. These include housing, circulation, conservation, open space, noise, and safety, with additional requirements such as environmental justice where applicable. The general plan describes coordinated development policy rather than giving every owner an individual permit.

Zoning implements land use regulation through districts and standards. It can regulate use, density, height, setbacks, lot coverage, and other development characteristics. Density concerns units or intensity relative to land area. A setback keeps construction a specified distance from a boundary or other reference. Zoning permission alone does not establish compliance with fire, structural, access, utility, or subdivision rules.

Building codes address how structures are designed and built, including safety and habitability standards. A proposed use can comply with zoning while the proposed construction fails a building requirement. Conversely, a structurally sound building can house a use prohibited by zoning.

Rules vary by jurisdiction and can be altered by state housing law. An exam scenario normally supplies the applicable rule. In practice, verify the current rule with the appropriate agency rather than assume that a familiar city standard applies everywhere in California.

A variance provides relief from a zoning restriction because qualifying special circumstances of the property would otherwise deprive it of privileges enjoyed by similarly situated properties. Examples can involve unusual shape, topography, or location. It is not an automatic reward for financial hardship or personal preference. California's general variance statute does not allow a variance to authorize a use that the zoning regulation does not expressly authorize.

A conditional use permit allows a use already contemplated as conditional in the zoning system if required findings and conditions are met. A district might permit a certain facility only after review of traffic, hours, or compatibility. The permit is not the same as rewriting the entire zoning ordinance.

An issued permit remains subject to its enforceable conditions. Approval requiring a 9 p.m. closing time does not authorize midnight operation just because the facility's general use was approved.

A legal nonconforming use was lawful when established but no longer conforms after a regulatory change. It may continue within the governing limits, which can regulate expansion, abandonment, rebuilding, or termination. An originally illegal use does not become legal nonconforming merely through age. A salesperson should not promise unrestricted rebuilding of a nonconforming structure after a fire.

The Subdivision Map Act primarily regulates the physical division of land through local government processes under state law, generally beginning with divisions into two or more parcels for the covered purposes.

The Subdivided Lands Law, administered by DRE, focuses on specified subdivision offerings and buyer protection, including public reports when required. Its general definition concerns five or more lots or parcels, but exemptions and special categories matter.

These baseline numbers do not answer every condominium, lease, or development case. A simple memory that both laws concern subdivisions must not erase their different purposes and administrators.

A DRE public report discloses material information about a covered subdivision. It is not a warranty of construction, a recommendation to invest, or a substitute for local approvals. Similarly, an approved map does not establish that every marketing claim has received DRE endorsement.

The California Environmental Quality Act, CEQA, requires public agencies to consider environmental effects of covered discretionary projects through the applicable review process. An environmental impact report is not required for every property sale or every permit; exemptions and other review outcomes exist. CEQA is a review and decision-making framework, while zoning determines authorized land uses. A project can raise issues under both.

Recorded CC&Rs can establish use restrictions, architectural review, maintenance duties, and assessment obligations in a development. A homeowners association administers powers granted by governing documents and law. The declaration, bylaws, operating rules, and public law have different roles and cannot be treated as one interchangeable document.

Where valid public and private restrictions differ, the owner ordinarily must satisfy both; the more restrictive practical result often controls. However, a private restriction that conflicts with overriding law may be unenforceable. Racially discriminatory covenants are not enforceable. Other statutes also limit private restrictions, so the phrase "the stricter rule always wins" is too absolute.

An injunction can order a person to stop or take certain action. It differs from a damages award compensating a loss. Enforcement rights and remedies depend on the restriction and law. A licensee should not advise a buyer that a restriction may be ignored because a neighbor appears to violate it.

A buyer wants a 28-foot workshop. Local zoning allows 35 feet, while an enforceable recorded covenant allows only 24 feet. The zoning allowance does not authorize a covenant violation. If the buyer also needs relief from a side setback due to the parcel's unusual shape, that raises a separate variance question. Neither issue is answered by saying the buyer owns fee simple title.

Match police power to regulation, eminent domain to acquisition, taxation to revenue, and escheat to legally ownerless property. Separate a general plan from zoning, and zoning from construction standards. A variance, conditional use permit, and legal nonconforming use solve different problems. Always identify which authority must approve the proposed use and which independent restrictions still apply.