UNITED OUTDOOR ADVERTISING CO INC v. BUSINESS TRANSPORTATION HOUSING AGENCY (1986)

United Outdoor Advertising sought a writ of mandate compelling cognizant state officials to issue permits for erection of five billboards.   The petition was granted;  the state has appealed.

FACTS

United Outdoor Advertising (UOA) sought permits to erect 5 billboards on 2 vacant parcels of land, 11.74 and 23.11 acres in size, located on the west side of Interstate Highway 15 near Baker, California, in an unincorporated portion of San Bernardino County.   There are some commercial structures of an unknown type on adjacent land.

UOA had earlier obtained county conditional use permits to allow commercial use on the parcels, erection of the billboards as well as advertising permits, but was refused billboard permits by the state solely on one ground:  the land upon which the billboards were to be erected was not a “business area” within the definition of the Outdoor Advertising Act (Bus. & Prof. Code, § 5200 et seq.).

DISCUSSION

The sole issue on appeal is whether or not the zoning of the parcels meets the definition of a “business area” under section 5205 of the Business and Professions Code.   This section reads:  “ ‘Business Area’ means an area within 1,000 feet, measured in each direction, from the nearest edge of a commercial or industrial building or activity and which is zoned under authority of state law primarily to permit industrial or commercial activities or an unzoned commercial or industrial area.”  (Emphasis added.)   Two requirements are imposed by the conjunctive “and”:  (1) a business area is one within 1,000 feet of another commercial activity and (2) a business area is on land zoned primarily to permit industrial or commercial activities.  (We disregard for the moment the alternative “or” to the “and” clause.)   UOA's application has met the first requirement;  we must determine whether or not it meets the second in this case of first impression.

The state makes the following argument.   The two parcels are zoned “Desert Living,” under County Ordinance 86.02110, which permits R–1, R–2, R–R (all are residential uses) and A–1 (agricultural) uses as a matter of right.   Specific site approvals must be acquired for multi-family residential uses, commercial and industrial uses.   This site approval process is equivalent to the granting of a conditional use permit.   If agricultural and residential uses are a matter of right, and commercial uses are lawful only if a conditional use permit is first obtained, it cannot be said that the commercial use is the primary use in the Desert Living zone.   Agricultural and residential uses are clearly the primary uses in the zone.   Therefore, it is readily apparent that the parcels are not “business areas” within the meaning of the statute.

As a matter of logic, the state's argument has everything to commend it.   But applied to the rather unique system of land use controls San Bernardino County has instituted in its desert areas, adoption of the state's position would frustrate several powerful land use planning policy objectives under the Planning and Zoning Law (Gov.Code, § 65000 et seq.), and only marginally promote objectives of the Outdoor Advertising Act.  (Bus. & Prof.Code, § 5200 et seq.).

San Bernardino County includes vast tracts of empty desert, with small outpost communities, often located at highway junctions and freeway interchanges.   Baker is one such community.   Much of the land in these desert areas is zoned Desert Living, which is primarily agricultural and residential, as discussed above.   However, many of these small outpost communities, which are the nexes of commercial activity for the surrounding areas, are designated on the county's general plan as Desert Special Service Centers (DSSC).   This designation is given to areas in which it is anticipated that commercial uses will develop.   The reason land in a planned commercial center is maintained as a Desert Living zoning is summarized in this excerpt from a letter from the San Bernardino Land Management Department to state officials:  “The DSSC is a general plan designation and not a zone per se․  In our desert areas the DSSC symbol has been used to identify isolated service centers that do not warrant a specific land use configuration on our general plan maps.   In most of these areas the County is using a site-by-site review process (site approval) rather than a zoning pattern to permit and control commercial and industrial uses.   This allows us the control we need to avoid unnecessary speculation and to limit the service center to the commercial development that is actually needed.   As a result, much of the land within these ‘special service’ areas remains zoned DL․”  (Emphasis added.)

Therefore, in land zoned Desert Living, but located in a DSSC, it is anticipated that commercial uses will be encouraged.   However, by approving commercial use site by site, the county has chosen to impose greater vigilance on commercial development than that afforded under the simple method of zoning in advance tracts of land for commercial uses.

 Turning to section 5205 of the Business and Professions Code, for the second part of the definition of “business area” to be met, the prospective billboard site must be “․ zoned ․ primarily to permit ․ commercial activities.”   The first difficulty is determining whether “zoned ․ to permit” encompasses only uses by right, or includes also uses permitted under a conditional use permit.   We hold that “zoned ․ to permit ․” includes conditional uses.   It is settled that the granting of a conditional use permit is not a zoning change (Hawkins v. County of Marin (1976) 54 Cal.App.3d 586, 591, 126 Cal.Rptr. 754), and is therefore a permitted use within an existing ordinance.   Further, the issuance of a conditional use permit must follow criteria set up in the zoning ordinance itself.  (Gov. Code, § 65901.)   Therefore, in this case, the Desert Living zoning classification establishes as permissible uses residential, agricultural, and commercial uses.

 However, section 5205 also requires that the permissible zoned uses of the prospective billboard site be primarily commercial.   On the face of the county zoning ordinance, which permits residential and agricultural uses by right, and commercial uses by conditional use permit, it is impossible to determine which of the three uses is “primary.”   Certainly, if two out of three uses are noncommercial, and one is commercial, on the face of the statute the commercial use could not be said to be “primary.”   However, there is no case interpreting this code section which requires the determination of what use is “primary” to be made solely as a matter of law looking only to the text of the zoning ordinance.

In the situation here, the county has elected to use no commercial zoning in many areas of the desert, and instead has chosen to determine suitability for commercial use on a site-by-site basis.   When determining whether or not the site is appropriate for commercial development, the county makes a series of factual findings.   In this instance the county determined:

“The granting of this deviation will not adversely affect the General Plan or its objectives because it clusters commercial development in the Baker area and encourages tourism in the community.  [¶]  The granting of this deviation will not be materially detrimental to public safety, welfare, or surrounding properties because it meets the intent of the freeway sign ordinance and the site is undeveloped.  [¶]  There are special circumstances that apply to this property or proposed use that do not apply to other properties or uses in the same vicinity and zone because other properties are located adjacent to the old alignment of Highway 91 thus billboards currently existing are located within 150 feet of other commercial or industrial uses.  [¶]  This deviation is necessary to provide this property with land use privileges enjoyed by other properties in the vicinity and under identical zoning classification, because other billboards were located adjacent [to] old Highway 91 and this site is a logical extension of the Baker commercial node and its distance of over one-hundred and fifty (150) foot requirement from other commercial or industrial uses is necessary because of the present alignment of I–15.”

In addition, the county made this finding:  “(I) That the Desert Special Service Center (DSSC) is designed primarily to permit commercial activities in certain specified areas or locals [sic] located in the desert and primarily zoned DL, Desert Living.   The primary uses of land zoned DL within a DSSC designated area are commercial uses, which uses include among other uses, all commercial uses set forth in the C–1 and C–2 zone districts subject to the approval of a site approval.  (Emphasis added.)

“(J) That the erection and maintenance of outdoor advertising structures is a commercial activity which is a permitted use within the DSSC areas, subject to a site approval.

“(K) That the proposed use of the subject property for outdoor advertising is consistent with the general plan and is appropriate under the objectives, policies, general land use plans and programs specified in the General Plan.   Further, site approvals are used in conjunction with and are a part of the general comprehensive zoning and land use regulations of the County.”

While the first finding is somewhat contradictory of the planning department letter earlier quoted (see emphasized material), it is clear that the primary use of the adjacent property is commercial, and the county anticipates that the remainder of the property near the billboards will also be commercial.

As we have noted earlier, in this part of the county, land use planning for commercial development is not primarily accomplished by commercial zoning.   The county makes findings like those just quoted to determine the primary use of the site and immediately surrounding parcels to ascertain if commercial use is consistent with other surrounding land uses.   It then determines whether or not to grant the conditional use permit.   This determination is made after notice to adjacent landowners.   Quite probably this method of land use planning was unanticipated by the drafters of section 5205, which was enacted in 1970.   This unique method of controlling commercial development is an inescapable and critical fact in this case.

In this factual situation, we have determined that it is incumbent upon us to utilize these findings in determining whether the statutory requirement of “primary” commercial use is met, looking beyond the face of the zoning ordinance.   Examining the findings here, we see no legal or evidentiary basis on which to set these findings aside.   Therefore, we hold UOA has properly met the second requirement imposed under section 5205 and is entitled to the appropriate state permits.

The policy rationale underlying our holding is multi-faceted.   The last series of phrases in section 5205 create an alternative avenue for fulfilment of what we have called the second requirement, that is, placement of the billboard on a site zoned primarily for commercial use.   The alternative is to site the billboard in “․ an unzoned commercial or industrial area.”   If we were to hold the zoning on the present site was inappropriate, UOA's obvious alternative would be to seek dezoning of the site and immediately adjacent commercially developed parcels, and then apply for state permits, which would be issued so long as the billboard sites were within 1,000 feet of the existing commercial activities on the adjacent parcels.  (See Bus. & Prof. Code, § 5223.) ¹  Obviously these sites meet this criterium, because the same requirement is in pertinent part embodied in what we have denominated the “first requirement” under section 5205 (see discussion, supra) which defined a “business area” as one “within 1,000 feet of another commercial activity.”   As a result, in seeking to enforce compliance with the Outdoor Advertising Act this court would create an incentive for the county to dezone to allow state approval for a billboard for which county approval had already been given.   The Legislature, in declaring state policy with regard to land use planning, has stated with crystalline clarity the felt need for effective long-range planning, made with full consideration of short and long-term costs and benefits.  (Gov. Code, §§ 65030.1 and 65030.2.)   Creating an incentive to dezone an entire area, to “deplan,” for the purpose of allowing placement of a billboard would therefore be contrary to the purposes of the Planning and Land Use Law.

As we have repeatedly noted, the county has employed a rather unique set of land use controls to regulate development in the desert.   That system, in allowing commercial development primarily through site review, is expressive of a high order of development conservatism and environmental concern.   In Chapter 4, Zoning Regulations, Planning and Land Use Law, the Legislature declared “․ it is its intention to provide only a minimum of limitation in order that counties and cities may exercise the maximum degree of control over local zoning matters.”  (Gov. Code, § 65800.)   To interpret the Outdoor Advertising Act to force the county to zone for commercial uses in order to allow the billboard, instead of using a site-by-site review process, would be in derogation of legislative intent as expressed in the Planning and Land Use Law to lodge these decisions at the local level.   We discern no governmental purpose served by forcing the county to either dezone or zone, instead of using the permit procedure, to lawfully permit billboards in commercial areas of the desert.

Finally, to hold that the zoning on the parcels does not meet the requirements of section 5205, only to have the county dezone in order to enable UOA to meet the “business area” requirement under the Outdoor Advertising Act, would result in a truly Pyrrhic victory for the state in seeking to enforce the Act.

DISPOSITION

The order granting the petition for writ of mandate is affirmed.

I concur basically in what is said in the opinion prepared for the court and so have concurred in it.   However, I write separately as well because I would place the emphasis on a slightly different reading of the statute.

The statutory requirement in issue is that the property be that “which is zoned under authority of state law primarily to permit industrial or commercial activities.”   Two things are at once apparent:  one, under the statutory scheme responsibility for designating the property as “primarily to permit industrial or commercial activities” is a function of county government within the framework of the state laws pertaining to zoning;  two, the granting of conditional use permits is authorized under state zoning law.  (See, e.g., Gov. Code, §§ 65905, 65909, 65863.5.)

In my view “zoned under authority of state law” as used in section 5205 of the Business and Professions Code refers to all zoning actions taken by the county under state law, including the issuance of a conditional use permit.   Once the “site approval” or conditional use permit was granted for the parcel of property here involved, it was “zoned under authority of state law primarily to permit” a commercial activity.   End of case.

FOOTNOTES

1.   Section 5223 of the Business and Professions Code reads:  “ ‘Unzoned commercial or industrial area’ means an area not zoned under authority of state law in which the land use is characteristic of that generally permitted only in areas which are actually zoned commercial or industrial under authority of state law, embracing all of the land on which one or more commercial or industrial activities are conducted, including all land within 1,000 feet, measured in each direction, from the nearest edge of the commercial or industrial building or activity on such land.   As used in this section, ‘commercial or industrial activities' does not include the outdoor advertising business or the business of wayside fresh product vending.”  (Emphasis added.)

McDANIEL, Associate Justice.

KAUFMAN, Acting P.J., and HEWS, J.,* concur.