Same but Different: The two laws even city planning staff confuse.


In a recent process, I represented a client in a matter in which the issue was whether the client’s use was grandfathered under the old municipal zoning code or whether more recent amendments applied to it.  Interestingly, municipal staff raised the granting of another alcoholic beverage license in the same census tract as a reason for why my client’s use might not qualify for grandfathering under the zoning.

Number of licenses in a census tract is a concept unique to state law, which is administered by the Department of Alcoholic Beverage Control.  Under the California Constitution, the ABC has the exclusive authority to regulate the sales of alcoholic beverages.  All other government agencies are preempted by the ABC.  So why do municipalities regulate the location and manner of alcoholic beverage sales?  Because several court opinions have distinguished the ABC’s exclusive constitutional power to regulate alcoholic beverage sales from the power of municipalities to regulate land use – even though on a practical level such theoretically distinctive powers overlap.  To make matters more confusing, the ABC often looks to municipal officials to determine whether issuance of a license would serve “public convenience or necessity” – a prerequisite for license issuance in census tracts with more than an allotted number of licenses, i.e., most business districts.  So it can be difficult for  municipal officials to understand that they are making certain decisions as delegates of the ABC and other decisions of a similar nature as part of their zoning authority.

In simplified form, zoning decisions have to do with what uses or architectural forms are allowed on the land.  Zoning rights do not change with the owner – they “run with the land.”  If the zoning changes, existing uses and structures are governed by the previous zoning until there is break in the use or change in the building structure.  Changes in ownership do not effect zoning rights.  In contrast, the rights and licensing administered by the ABC are “in personam,” i.e., they change with the individual.  Additional, ABC laws tend to be dynamic so that getting a license is dependent on changing facts such as residential population, number of licenses in the census tract, and crime rate.  Zoning laws, in contrast, tend to be binary – either the use is allowed or it is not.

In sum, understanding the above distinction can help in the proper application of the zoning and ABC regulation, and possibly preserve a grandfathered use or building.


About William Adams

Attorney at Norton, Moore, & Adams, LLP.
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