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What 'SUP?

Posted by Sunny D. Dobashi | Nov 25, 2013 | 0 Comments

By D. Ken Brock –

Now that Sacramento's real-estate market has finally been taken off life-support, zoning and land-use matters are once again becoming relevant.

In California, land-use regulation has traditionally been governed at the local level though municipal ordinances.  While these ordinances vary significantly from one location to another, most California municipalities regulate the use of land through the creation of land-use zoning districts.  Each zoning district generally has its own set of specifically-identified permitted land-uses which are automatically permitted as a matter of right.  Should a land-owner or tenant wish to use a particular property for something other than a use specifically permitted by its zoning designation, he or she must generally obtain a special use permit (or a “SUP”) before doing so.

For municipal land-use purposes, a nuisance per-se can generally be said to exist whenever a municipal governing body expressly declares a particular activity to be a public nuisance – and zoning code violations are always deemed a public nuisance.  California municipalities also have long-standing legal authority, deeply rooted in the State Constitution, to enforce their zoning ordinances through nuisance abatement civil actions, as well as the imposition of criminal sanctions.  Consequently, the use of property for something other than its designated permitted use without an SUP or other required land-use entitlement could potentially result in both civil and criminal liability.

While procedural requirements often vary, applications for an SUP or other specialized land-use entitlement typically require the local zoning authority to conduct a public hearing and make a formal recommendation to the municipality's governing body.  The municipal governing body will then approve or deny the application based upon the zoning authority's recommendation and public input.  Local municipalities thus have a significant amount of discretion to regulate the use of land within their respective jurisdictions.

This discretion is not, however, absolute and municipal land-use regulations which conflict with federal or California law are generally void and unenforceable as a matter of law.  Specifically, in addition to other federal and state civil rights restrictions, the federal Religious Land-Use and Institutionalized Persons Act (“RLUIPA”) specifically prohibits municipal zoning regulations which discriminate against individuals or organizations which wish to utilize property for religious assemblies.

For this reason, zoning ordinances which prohibit religious assemblies in locations where theaters, meeting halls or other places used by large groups of people for secular purposes may often be void and unenforceable as a matter of law.  While municipalities may, for example, require churches or synagogues wishing to operate within a zoning district where they are not automatically permitted to apply for an SUP, the terms of the SUP (and the decision whether or not to issue it) must be based upon the same criteria applied to similarly-situated, secular land-uses.  RLUIPA also prohibits municipalities from unreasonably limiting religious assemblies within their jurisdictions and authorizes both the U.S. Justice Dept. and private citizens to bring legal action in federal and state courts to ensure its enforcement.

Consequently, at a bare minimum, religious institutions looking to secure the necessary land-use entitlements for their congregations can be assured of the same municipal consideration and treatment as any other land-use involving the assembly of similarly-sized groups of people.

About the Author

Sunny D. Dobashi

SUNNY D. DOBASHI has spent more than 30 years advising closely held businesses, primarily corporations. His practice includes all facets of legal counsel to the closely held business, including entity selection and formation; operational and transactional planning, implementation, and documentati...


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