Is there any practical difference between an overlay district and a base zoning district? One California court says yes...
...and with potentially significant implications for the State's builder's remedy law.
Nice write-up on the case from Holland & Knight attorneys. Here is part of their summary:
Many California jurisdictions rely on housing “overlay” zones to meet rezoning requirements under State Housing Element Law. In New Commune DTLA LLC v. City of Redondo Beach, the Second District Court of Appeal held that “[a]n overlay cannot be used to satisfy the minimum density and residential use requirements … where the base zoning expressly permits development that does not include housing.”
This decision significantly reinterprets State Housing Element Law and invalidates the City of Redondo Beach’s Housing Element, despite it having been certified by the state’s Department of Housing and Community Development.
The new ruling may expose numerous jurisdictions to new Builder’s Remedy applications, though it is unclear whether additional litigation is required to affirmatively invalidate other housing elements.
The decision also creates uncertainty for non-Builder’s Remedy applicants who seek to utilize housing overlay zoning to develop other residential, nonresidential or mixed-use projects.
Full article here.