By De Witt Clinton, Excerpts of LA County Counsel's Legal Opinion, May 18, 1995.
On May 4, 1995, the Board of Supervisors requested an analysis of the legal issues arising from a land dedication proposal submitted by Browning-Ferris Industries of California, Inc. ("BFI").
BFI's proposal concerns the landfill to be located in Sunshine Canyon on property within the unincorporated territory of the County.
BFI proposes to dedicate property to the County that includes the area of the private access road into the landfill, and, in the dedication agreement, to have the County authorize BFI to use the access road for landfill-related purposes.
The access road is situated within the territory of the City of Los Angeles ("City"), and the City recently refused to issue a zone variance to BFI for use of the access road.
We conclude that because of the legal doctrine of intergovernmental immunity the County would not be subject to the City's zoning regulations concerning this access road, if dedication of the access road were effectuated for a public purpose, such as the provision of solid waste facilities.
In the attached analysis, we initially explain the legal doctrine which can render municipal zoning regulations inapplicable to County-owned land in the cities.
The public purpose inherent in the County's management of solid waste was reflected in prior County actions approving the landfill in Sunshine Canyon, as also described in the attachment.
If you wish to consider acquiring the access road, then you should instruct designated departments to negotiate and prepare a dedication agreement for subsequent review.
Intergovernmental Immunity
... The California Attorney General issued an opinion that "cities and counties are mutually exempt from each other's building and zoning ordinances, whether they are acting in a governmental or propriety capacity." (40 Ops. Atty. General Cal. 243) (1962).
In a subsequent opinion, the Attorney General further concluded that the immunity "will extend to the activities of a private developer lessee using the county land for the operation of a commercial enterprise, where the purpose of the lease is to implement the public purposes and uses for which the property was granted to the county." (57 Ops. Atty. Gen. Cal 124) (1970).
The situation addressed in this opinion involved harbor property owned by a county, which, in turn, leased a portion of the site to a private party for development of shops, restaurants, and other facilities. The public purpose behind a project still existed even though a private company operated a business at the site for profit.
Two other issues may arise concerning the application of the intergovernmental immunity. An argument may be raised that allowing BFI to use the access road without complying with City zoning laws would bestow a privilege on BFI that other landfill operators do not enjoy. This argument is incorrect for at least two reasons.
First, we are not aware of any other landfill operator whose landfill is in the unincorporated territory of the County, but cannot access that land because a city has denied use of the access road for zoning reasons. Second, this same privilege argument could be raised in every situation where a county or city leases property owned in a different jurisdiction to a particular private business.
Yet, the Attorney General and the courts have still applied the immunity as long as there is a public purpose to the activity conducted at the property. This erroneous argument would also prevent a county or a city from ever contracting out services to a private company if those services are rendered at land owned in a different county or city.
The second issue involves the possible argument that a county or city may abuse the governmental immunity simply in order to evade the zoning laws of another jurisdiction. However, the public purpose requirement prevents that situation from happening. A truly private purpose cannot be made into a public purpose by simply labeling it "public". The substantive nature of the purpose will be the controlling factor.
Based on this law, the County would not be subject to the City's zoning regulations concerning the access road if dedication is effectuated for public purpose.
By Bill Christopher, Coordinator, People for Livable and Active Neighborhoods in Los Angeles
The proposal to re-open Sunshine Canyon as a landfill continues to be highly unpopular. Over the last year, Browning Ferris Industries (BFI) has been seeking to open its permitted landfill in the County of Los Angeles. The current issue is the use of a BFl-owned access road that is under the jurisdiction of the City of Los Angeles. In February 1995, the City's Board of Zoning Appeals (BZA) denied BFI a zoning variance application to use the road to provide access to its proposed landfill. In March 1995, BFI failed to get the City Council to consider the BZA's denial.
BFI believes that the City violated the terms of a tripartite Settlement Agreement signed in October 1994 by BFI, the City, and County. In that agreement, the City agreed to expeditiously process any application for a zoning variance. This issue is now the subject of a civil suit against the City of Los Angeles for damages that could exceed $1.5 billion.
The County's Board of Supervisors will soon consider a request from BFI and the County Sanitation District to accept title to the road, via dedication, in an effort to exempt BFI's use of the road from City regulations. This exemption from the City's land use regulations takes advantage of a provision of state law known as the doctrine of intergovernmental immunity.
Recent case law implies that cities and counties are mutually exempt from each other's building and zoning ordinances under this doctrine when developing government property for a public purpose. A privately-operated landfill is not a public use in those terms. The use of the road does not constitute development on the County's part, since the dedication doesn't include the landfill itself.
The courts have not allowed governmental immunity to be used by private parties. In Board of Trustees of the California State University and Colleges v. City of Los Angeles, Devonshire Downs, a circus operator, was required to comply with local land use regulations despite the fact that its activity was to occur on government property at Cal State Northridge.
While a private landfill operator does serve the community, its private, profit-making operation cannot be considered a public purpose no matter how important it might seem to the County's solid waste managers.
The proposed dedication seems to be the precursor to a new round of extended legal challenges where the City will be suing the County, and the lucky taxpayers will wind up paying the legal bills on both sides.
Finally, the use of intergovernmental immunity for private purposes within the County of Los Angeles is a red flag for independent cities in the County. Just imagine if the County wants a private hazardous waste incineration operator to open a facility in one of its independent cities and requests the private company to dedicate the property the County, thereby exempting the operator from the local city’s land use regulations.
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