HomeMy WebLinkAbout35-Planning and Building
C~TY' OF SAN BERNA~INO - REQUEST FcQ COUNCIL ACTION
From: Larry E. Reed, Assistant Director
Subject: Appeal of Revocation of Conditional
Development Permit No. 198 (Civic
Center Mote 1 )
Mayor and Common Council Meeting of
October 7, 1991, 2:00 p.m.
Dept: Planning and Building Services
Date: October 3, 1991
Synopsis of Previous Council action:
On December 11, 1990, the Planning Commission adopted Firidfngs in support of revocation
of Conditional Development Permit No. 198. The vote was 4 ayes, 1 nay, and 1 abstention
with 2 absent.
The appeal to the Mayor and Common Council was originally scheduled for the February
4, 1991 Council meeting.
On April 15, 1991, the Mayor and Common Council continued the item and considered the
use of a Hearing Officer for an advisory opinion regarding the due process issues raised
by the appellants.
Since May 6, 1991, there were a series of continuances by the Mayor and Common Council,
the last continuance being to October 7, 1991.
Recommended motion:
That the hearing be closed; that the Mayor and Common Council uphold the decision of
the Planning Commission and Hearing Officer and revoke Conditional Development Permit
No. 198.
4
rA/
Signature
FUNDING REQUIREMENTS:
Larry E. Reed
Revised staff report/Hearing
UTTlcer uecls1on, urlglnal ~~aTT
Amount: N/A
Phone:
384-5357
Contact person:
Supporting data attached:
Ward:
KepOrt,
1
Memorandum of
Authorit i es
I"oints and
Source: (Acct. No.)
(Acct. Descriotionl
Finance:
Council Notes:
15-0262
Agenda Item No
35
CITy'OF SAN BERNAOINO - REQUEST FoQCOUNCIL ACTION
SUBJECT :
STAFF REPORT
Appeal of Revocation of Conditional Develop-
ment Permit No. 198 (Civic Center Motel)
Mayor and Common Council Meeting of
October 7, 1991
REOUEST
To overturn the decision for revocation of Conditional Deve-
lopment Permit (CDP) No. 198 made by the Planning Commission.
BACKGROUND
Staff recommended the Mayor and Common Council uphold the
Planning Commission action to revoke CDP No. 198.
On April 15, 1991, the Mayor and Common Council continued
this item and approved the referral of the Appeal to a
Hearing Officer for an advisory op1n1on regarding the d~e
process issues raised by the appellants.
Since May 6, 1991, there have been a series of continuances
of the appeal. The last continuance was to October 7th 1991.
On September 30, 1991 the hearing officer filed his decision
concerning revocation procedures and related due process
issues (Attachment B).
OPTIONS AVAILABLE TO THE MAYOR AND COMMON COUNCIL
The Mayor and Common Council may:
1. Deny the appeal and revoke CDP No. 198:
2. partially uphold the appeal and not revoke CDP No.
198, but add additional conditions: or,
3. Uphold the appeal and not revoke CDP No. 198.
RECOMMENDATION
Staff recommends the Mayor and Common council uphold the
decision of the Planning commission and hearing officer and
revoke the Conditional Development Permit.
Prepared by:
Larry E. Reed, Assistant Director
Planning and Building services
A - Mayor and Common Council Staff Report of
February 4, 1991
B - Decision
C - Planning Department's Memorandum of Points and
and Authorities in Support of Revocation of
Conditional Development Permit No. 198
Attacments:
75.0264
CITY OF SAN BERNClDINO - REQUEST FcC COUNCIL ACTION.
STAFF REPORT
Subject: Appeal of Revocation of
Conditional Development Permit No. 198
civic Center Motel
Mayor and Council Meeting of
February 4, 1991, 2:00 p.m.
REOUEST
To overturn the decision for revocation of Conditional
Development Permit No. 198 made by the Planning Commission.
BACKGROUND
Conditional Development Permit (COP) No. 198, for the con-
struction and operation of a 50-unit motel at 655 "0" Street,
was approved by the Mayor and Common Council on May 13, 19~0.
The approved site plan consisted of 50 units with 51 parking
spaces, a perimeter wall, a putting green and a swimming
pool. Landscaping was to be provided throughout on the site.
After a long history of code violations and criminal acti-
vity, the Director of Planning and Building Services initi-
ated COP revocation proceedings before the Planning Commis-
sion, with the first hearing scheduled for April 3, 1990.
(See Exhibit "3" - April 17, 1990 Planning Commission staff
report). The chronology of subsequent hearings was as
follows:
Date
April 3, 1990
April 17, 1990
May 8, 1990*
May 15, 1990
June 15, 1990
July 24, 1990
August 21, 1990
September 25, 1990
October 9, 1990*
October 30, 1990*
November 13, 1990*
75-0264
Event/Result
Planning Commission
scheduled/Rescheduled to
1990
Continued to May 8, 1990
First Planning Commission hearing
held and continued to May 15, 1990
continued to June 15, 1990
continued to July 24, 1990
Continued to August 21, 1990
Continued to September 25, 1990
Continued to October 9, 1990
Second Planning commission hearing
held and continued to October 30,
1990
Third Planning Commission hearing
held and continued to November 13,
1990
Fourth Planning Commission hearing
held, motion was adopted to revoke
COP No. 198, but the need for the
preparation of formal Findings
delayed final Planning Commission
action until November 20, 1990
hearing
April 17,
ATTACHMENT A
Appeal of CDP No. ~ - civic Center
Mayor and Common Council Meeting of
February 4, 1991
Page 2
Motel
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December 11, 1990
December 21, 1990
December 11, 1990
Findings adopted for revocation
Appeal to Council filed
Note:
All continuances were agreed to by the owner and
the City.
The Planning commission minutes of the four hearings on the
revocation are attached for review. (These are indicated
above by an asterisk next to the appropriate dates, Exhibits
"4", "5", "6", and "7").
The Statement of Official Planning Commission Action (Exhibit
"2") contains the formal Findings for the revocation of CDP
No. 198. The Planning Commission voted 4 ayes, 1 nay, 1
abstention, and 1 absent. The owner's legal representative
is appealing the Planning Commission's decision based on
various legal issues. The city Attorney's Office has pre-
pared a response to those issues as contained in Exhibit "9".
OPTIONS AVAILABLE TO THE MAYOR AND COUNCIL
The Mayor and council may
1. Deny the appeal and revoke CDP No. 198;
2. Partially uphold the appeal and not revoke CDP No.
198, but add additional conditions; or,
3. Uphold the appeal and not revoke CDP No. 198.
RECOMMENDATION
Staff recommends concurrence with the Planning Commission
action to revoke CDP No. 198.
Prepared by:
John E. Montgomery, AICP
Principal Planner
For Larry E. Reed, Director
Planning and Building Services
Appeal of CDP No. ~ - Civic Center
Mayor and Common Council Meetinq of
February 4, 1991
paqe 3
. .' ...
Exhibits: 1 -
2 -
3 -
4 -
5 -
6 -
7 -
8 -
9 -
lat
SRCDP198
Motel
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Letter of Appeal to the Mayor and Council
statement of Official Planninq Commission
Action
April 17, 1990 Planninq Commission staff
Report
May 8, 1990 Planninq Commission Meetinq
Minutes
October 9, 1990 Planninq Commission Meetinq
Minutes
October 30, 1990 Planninq Commission Meetinq
Minutes
November 13, 1990 Planninq Commission Meetinq
Minutes
Public Hearinq Notice
City Attorney's Office Response Memo to Le~al
Issues Raised in Appeal
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JAMES F. PENMAN, City Attorney
HENRY EMPENO, JR., Deputy City Attorney
300 North "0" Street, Room. 668
San Bernardino, California 92418
Telephone: (714) 384-5355
REC""I"", """,.~. -- .
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Attorneys for Respondent,
CITY OF SAN BERNARDINO PLANNING DEPARTMENT
'91
c;:'P'O P"15
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BEFORE THE CITY OF SAN BERNARDINO
CITY COUNCIL
IN RE THE REVOCATION OF
CONDITIONAL DEVELOPMENT
NO. 198,
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PERMIT )
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PLANNING DEPARTMENT'S
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
REVOCATION OF CONDITIONAL
DEVELOPMENT PERMIT NO. 198
CIVIC CENTER MOTEL
655 North "0" Street
San Bernardino, CA
LEI AND CINDY WANG,
Permittees and
Appellants.
I.
CONDITIONAL USE PERMIT DEFINED
A Conditional Use Permit (CUP) [referred to as Conditional
Development Permits in 1960 when COP No. 198 was issued] is a
permit issued to a landowner by an administrative agency allowing
a particular use or activity not allowed as a matter of right
within a zoning district. CUPs allow special "uses" of property
under specified conditions. Longtin: California Land Use, 2nd
Ed., p.360-361.
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1 II.
2 GROUNDS FOR REVOCATION OF CUPS
3 Revocation of a CUP is constitutionally sufficient if the
4 administrative body is required to make its decision in accord
5 with the general health, safety and welfare standard. Garavatti
v. Fairfax Planning Commission (1971) 22 CA3d 145.
"Once a use permit [CUP] has been issued, the
power of a municipality to revoke is limited ....
Where a permit has been properly obtained and in
reliance thereon the permittee has incurred material
expense, he acquires a vested property right to the
protection of which he is enti tled. ( Ci tat ions
omitted) When a permittee has acquired such a vested
right it may be revoked if the permittee fails to
comply with reasonable terms or conditions expressed
in the permit granted (Citations omitted) or if there
is a compelling public necessity.
A compelling public necessity warranting the
revocation of a use permit for a lawful business may
exist where the conduct of that business constitutes
a nuisance. (Citation omitted) The principle
underlying this rule is that if such a business
consti tutes a nuisance it can be removed under the
police power of a municipality to prohibit and enjoin
nuisances. (Citation omitted) This right is given as
a protection against the improper conduct of any
lawful business by acts constituting a nuisance.
( Ci tation omi tted) " 0' Hagen v. Board of Zoning
Adjustment (1971) 19 CA3d 151, 158.
Appellants Lei and Cindy Wang, in the hearings before the
Planning Commission and in their Memorandum of Points and
Authori ties in Support of their appeal, have only raised due
process challenges.
In the face of overwhelming evidence
presented to the Planning Commission, appellants have impliedly
conceded that their business constituted a nuisance, that they
failed to comply with the reasonable terms and conditions required
in their permit, and that there was a compelling public necessity
warranting the revocation of their conditional use permit.
HE/dYB/CCIIl.p&a
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August 21. 1991
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1 III.
2 DUE PROCESS REQUIREMENTS FOR REVOCATION OF CUPS
3 Notice and hearing must be afforded a conditional use
4 permi ttee prior to revocation of the use permit. Communi ty
5 Development Commission v. City of Fort Bragg (1988) 204 CA3d 1124.
6 Hearings on the revocation of a CUP must follow the same
7 standards required for hearings on the issuance or denial of an
8 application for a CUP.
9 The hearing on an application for a CUP may be more or less
10 informal, and technical legal rules of evidence and procedure may
11 be disregarded. Bradbeer v. England (1951) 104 CA2d 704, Stoddard
12 v. Edelman (1970) 4 CA3d 544. The party whose rights are being
13 determined must be given an opportunity to present evidence,
14 cross-examine witnesses, and inspect documents. Patterson v.
15 Board of Supervisors (1947) 79 CA2d 670, Desert Turf Club v. Board
16 of Supervisors (1956) 141 CA2d 446.
17 A revocation hearing of a CUP should follow rules of
18 evidence which are applicable to administrative hearings.
19 As a general rule, administrative hearings are not bound by
20 the strict or technical rules of evidence governing jury trials or
21 other court proceedings. Nardoni v. McConnell (1957) 48 Cal.2d
22 500. The Administrative Procedure Act provides that an
23 administrative hearing need not be conducted according to
24 technical rules relating to evidence, and that any relevant
25 evidence must be admitted if it is the sort of evidence on which
26 responsible persons are accustomed to rely in the conduct of
27 serious affairs, regardless of the existence of any co~on-law or
28 statutory rule that might make improper the admission of such
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evidence over objection in civil actions.
Government Code,
Section l15l3(c). This rule fairly states the general legislative
policy regarding the standard of admissibility of evidence in
administrative adjudication, and may properly be followed by all
5 administrative agencies, in the absence of a contrary rule
6 expressly controlling the proceedings of a particular agency.
7 Suckow v. Alderson 182 Cal. 247.
8 Al though mere uncorroborated hearsay or rumor is not
competent evidence, the strict rules of evidence that obtain in
the courts are not enforced in administrative proceedings, and the
mere fact that no formal foundation was laid as to the expertise
of certain witnesses before a city council did not render their
opinion testimony incompetent or otherwise improper.
Jenner v.
Covina (1958) 164 CA2d 490.
IV.
DUE PROCESS REQUIREMENTS WERE
FOLLOWED IN THE PLANNING
COMMISSION'S REVOCATION HEARINGS
The Planning Department's Exhibits, Numbers 1 through 5,
were properly admitted into evidence.
Numerous witnesses were
produced by the Planning Department and testified in support of
the revocation of appellants' permit. Appellants were permitted
to cross-examine each of these witnesses.
Appellants were
permitted to present evidence and to call any witnesses to testify
on their behalf. Although some hearsay evidence may have been
admitted, it was merely corroborative of other nonhearsay evidence
which was properly admitted.
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August 21. 1991
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v.
THE CITY SHOULD NOT BE ESTOPPED
FROM REVOKING APPELLANTS' PERMIT
Appellants have argued that because they have obtained
building permits and have made some expenditures in repairing some
of the building code violations at the Civic Center Motel, that
the City should be estopped from revoking their conditional
development permit.
The doctrine of equitable estoppel may be applied against
the government where justice and right require it, but an estoppel
will not be so applied if to do so would effectively nullify a
strong rule of policy, adopted for the benefit of the public.
City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 493.
In the instant case, equi table estoppel should not be
applied because the alleged unfairness to appellants (their
relatively small expenditures in repairing the property) does not
outweigh the important public policy of protecting the public
health, safety, and welfare through the City's authority to revoke
a CUP if that CUP is exercised to create a public nuisance.
In addition, equitable estoppel should not apply here
because appellants were put on notice by the Planning Department
that the City could seek a revocation of their CUP even though
appellants initiated repairs to the property. One of the four
elements which must be present in order to apply the doctrine of
equitable estoppel is that the relying party must be ignorant of
the true state of facts. City of Long Beach v. Mansell, supra at
page 489; Strong v. County of Santa Cruz (1975) 15 Cal.3d 720,
HE/dy,/cCIll.p&a
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August 21. 1991
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725. Because that element is not present, equitable estoppel
should not apply in this case.
VI.
THE CITY'S PENDING CIVIL ACTION DOES
NOT AFFECT THE REVOCATION OF CDP NO. 198
Appellants have previously argued that the City cannot
revoke their permit because the City has previously filed a
lawsuit, and the Court has issued a preliminary injunction
prohibiting occupancy of appellants' motel.
Appellants' argument misreads the statutory remedies
available to the City in combating a public nuisance. Civil Code
Section 3491 states:
"The remedies against a public nuisance are:
1. Indictment or information;
2. A civil action; 'or
3. Abatement" [emphasis added]
These remedies are not mutually exclusive. The City, through its
administrative abatement authority and police powers, has already
vacated and closed appellants' motel. The City also has filed a
civil action in court' seeking injunctive relief to abate the
public nuisance.
In that lawsuit, Judge Kennedy issued a
preliminary injunction prohibiting appellants from renting or
leasing any of the motel rooms during the pendency of the lawsuit.
The City has also initiated action towards a third remedy,
the revocation of appellants' CUP.
While the civil action is
directed against appellants, the CUP revocation procedure is
directed at the use of the property whereby the City seeks to
revoke a covenant running with the land. These three remedies are
not identical and are not mutually exclusive.
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Auguat 21. 1991
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For all of the above-mentioned reasons, respondent City of
San Bernardino Planning Department respectfully requests that the
Hearing Officer find that appellants' due process rights were not
violated, that the appeal be denied, that the Planning
Commission's decision be affirmed,
and that Conditional
Development Permit No. 198 be revoked.
DATED: August 21, 1991
Respectfully submitted,
JAMES F. PENMAN, City Attorney
~E~r-u;J
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By: '"
HENRY EMPENO, JR.,
Deputy City Attorney
Attorneys for Respondent,
CITY OF SAN BERNARDINO
PLANNING DEPARTMENT
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Auguot 21. 1991
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RECEI"'-' .-
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'91 SEP 30 P 4 : 15
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Permittes/Appellants.)
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IN RE REVOCATION OF CONDITIONAL
DEVELOPMENT PERMIT NO. 198,
DECISION
CIVIC CENTER MOTEL -
655 N. "0" STREET
SAN BERNARDINO, CA
LEI AND CINDY WANG,
The above-entitled matter came before ALLEN B. GRESHAM,
sitting as an impartial hearing officer, for the limited purpose
of reviewing the procedures leading up to the revocation of
Conditional Development Permit No. 198 to determine whether said
procedures constituted sufficient "due process" so that the
property owners could and did receive a fair hearing. The second
question presented was if the process fell short of the required
standards of due process, did that shortcoming prejudice the
property owners.
At the request of the hearing officer, briefs were submitted
by Mr. Frank A. Weiser on behalf of the property owners, Lei Wang
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and cindy Wang and Mr. Henry Empeno on behalf of the City of San
Bernardino. A hearing was held in the offices of the hearing
officer on August 27, 1991 where both counsel were present and
each orally argued the positions of their respective clients.
Thereafter, the hearing officer considered the facts, the law and
the issues presented in oral argument and now issues the following
decision:
1. Every process which has the potential to result in the
deprivation of a property interest is required under the mandate
of due process, to be preceded by appropriate notice and a hearing
which meets certain minimal procedural requirements including the
right to appear personally before an impartial official or panel,
to confront and cross-examine adverse witnesses, to present
favorable evidence and be represented by counsel. It is the
belief of the hearing officer that these standards were met.
2. In light of the hearing officer's finding that at least
the minimal requirements of due process were met, no prejudice
resulted to the property owner as the result of the procedures
followed by the city.
DATED: September 3D, 1991.
~(;<:
ALLEN B.' SHAM,
Hearing Officer
t./v.--,~J
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VERIFICATION
STATE OF CALIFORNIA, COUNTY OF
I have read the foregoing
and know its contents.
D
D
1&1 CHECK APPLICABLE PARAGRAPH
I am a party to this action. The matters stated in the foregoing document are true of my own knowledge except as to
those matters which are stated on information and belief, and as to those matters I believe them to be true.
I am 0 an Officer 0 a partner 0 a of
D
a party to this action, and am authorized to make this verification for and on its behalf, and I make this verification for that
reason. 0 I am informed and believe and on that ground allege that the matters stated in the foregoing document are
true. 0 The matters stated in the foregoing document are true of my own knowledge except as to those matters which are
stated on information and belief, and as to those matters I believe them to be true.
I am one of the attorneys for
a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices, and I make
this verification for and on behalf of that party for that reason. I am informed and believe and on that ground allege that
the matters stated in the foregoing document are true.
Executed on , 19_, at , California.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Type or Print Name
Signature
PROOF OF SERVICE
I013A (3) CCP Revised 5/1/88
STATE OF CALIFORNIA, COUNTY OF SAN BERNARDINO
I am employed in the county of ' State of California.
I am over the age of 18 and not a party to the within action; my business address is:
600 N. Arrowhead Ave. - Snite 100. !';an FlF>rnarninn, ('A Q?401
On Sept. 10, 19~, I served the foregoing document described as
DECISION
on interested parties in this action
D by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list:
Ul by placing 0 the original QI: a true copy thereof enclosed in sealed envelopes addressed as follows:
Henry Empeno, Esq. Frank A. Weiser, Esq. Andrew J. Gunn. Esq.
Deputy City Attorney 3460 Wilshie Blvd. 363 W. Sixth St.
300 N. "0" St. Suite 903 San Bernardino, CA
San Bernardino, CA 92401 Los Angeles, CA 90010 92401
[] BY MAIL
D .1 deposited such envelope in the mail at ' California.
The envelope was mailed with postage thereon fully prepaid,
[] As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing.
Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at
~an 'Rprn;:Jirn; no California in the ordinary course of business. I am aware that on motion of the
party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of
deposit for mailing in affidavit.
Executed on September 30 , 19n, at San Bernardino
D ..(BY PERSONAL SERVICE) I delivered such envelope by hand to the offices of the addressee.
Executed on , 19_, at , California.
[1i (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
D (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was
made. ~ . /J 0 ~:U
Gail E. Otto ~~. y;-. f.~
Type or Print Name Signature
STUART'S EXBROOK TIMESAVER (REViseD 511188)
NEW DISCOVER'\' LAW 2030 AND 2031 CC,P
(May be UIlld in Calitornia Slate or Federal Col.llls)
, California.
'{eY MAil SIGNATURE MUST BE OF PERSON DEPOSITING ENVELOPE IN
MAil SlOT. BOll:. OR BAG}
"(FOR PERSONAL SERVICE SIGNATURE MUST BE THAT OF MESSENGER)