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HomeMy WebLinkAbout43- Mountain Shadow Villas City of Inc. 19 P 1 January 19, 1988 Honorable Mayor and Common Council City of San Bernardino 27215 E. Baseline Post Office Box 1318 Suite A San Bernardino, California Highland, CA 92346 92402 (714) 864-6861 City Council Dennis Johnson Mayor RE: Request to Grandfather Review of Plans No. Jim Rissmiller 86-51 - Mountain Shadows Villas - Stubble- Mayor Pro-Tem field Enterprises - Agenda Item 43, Meeting Jody Scott of January 19, 1988 Robert(Bob)Shelton Laurie Tully City Manager Robert Covington The City of Highland wishes to express its con- cern about the request of Stubblefield Enter- prises to Grandfather Review of Plans No. 86- 51 - Mountain Shadows Villas, and to encourage the Mayor and Common Council to approve the recommendation of the Director of Planning to deny the applicant ' s request. You truly, r Robe t A. Covington' City Manager RAC/pll low C. M. GOULD' HILL, FARRIER & BURRILL FREDERICK J. RYAN, JR. WILLIAM C. FARRER' NEIL D. MARTIN LEON S. ANGVIRE' A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS ALFRED M. CLARK, III VINCENT C. PAGE' ATTORNEYS AT LAW DANIEL J. McCARTHY STANLEY E. TOBIN' AUGUST W. CAIMI JACK R. WHITE' THIRTY-FOURTH FLOOR-UNION BANK SQUARE DEAN E. DENNIS HARRY L. HATHAWAY' RONALD W. NOVOTNY KYLE D. BROWN* 445 SOUTH FIGUEROA STREET DAVID T. ROMNEY WILLIAM M. BITTING' WILLIAM A. WHITE ROBERT P. HESS' LOS ANGELES, CALIFORNIA 90071-1666 SUSAN L. SCHWARTZ DAVID A. EBERSHOFF' _ JAMES R. EVANS, JR. STUART H. YOUNG, JR.- RONALD C. PEARSON STEVEN W. BACON' LOS ANGELES COUNTY CLAIRE F. MILEY TIM C. BRUINSMA' TELEPHONE(213) 620-0460 PATRICK J. FOLAN WM. HAROLD BORTHWICK' STEVEN C. ELLINGSON ARTHUR B. COOK' ORANGE COUNTY MICHAEL J. DIBIASE JAMES G. JOHNSON' LORETTA SICILIANO GEORGE KOIOE' TELEPHONE (714)755-4974 JENNIFER G. COOK JONATHAN M. BRANDLER' — CURTIS A. WESTFALL DARLENE B. FISCHER TELEX 296905 HILL PAUL D. MANETTI SCOTT L. GILMORE _ STEPHEN L. BRADFORD KEVIN H. BROGAN JAMES A. BOWLES TELECOPIER OF COUNSEL (213) 624-4840 (213)488-1593 JOHN N. McLAURIN' EDWIN H. FRANZEN' A. J. HILL (1881-1953) WM. M. FARRER (1894-1971) 'A PROFESSIONAL CORPORATION STANLEY S. BURRILL (1902-1957) January 19 , 1988 Ms. Shauna Clark City Clerk City of San Bernardino 300 North "D" Street San Bernardino, Calif. 92418 Re: Grandfather clause for effective date of MC-550 Dear Ms. Clark: The attached memorandum constitutes a portion of the presentation of Stubblefield Enterprises to the City Council on January 19, 1988 in connection with the issue of the grandfather clause for the new R-3 Ordinance (MC-550 ) . Please include this as part of the record of the proceedings before the City council on said date. Thank you for your assistance in this matter. Very truly yours, DARLENE B. FISCHER OF HILL, FARRER & BURRILL DBF/sjb Enclosure CC: R. Ann Siracusa Dennis Barlow, Assistant City Attorney INTRODUCTION Stubblefield Enterprises is requesting the Council to amend §19 . 12 . 210 of the Municipal Code which governs the effec- tive date of the 1986 amendments to the City's R-3 ordinance. The amendment we seek reads as follows: "If an application for a review of plans was accepted as complete prior to November 21 , 1986 ithe a ffeet____ the application shall be processed, reviewed, and approved under the ordinance which was in effect at the time the appli- cation was accepted as complete. " We are requesting that you take this action, not to confer any special benefit upon the Stubblefield Project, but rather because it is consistent with the City' s historic practice, because it is compatible with state law in related areas, and because it is fair given the history of this project. I. THE URGENCY G NCY ORDINANCE WHICH ESTABLISHED THE EFFECTIVE DATE OF THE R-3 AMENDMENTS REPRESENTED A DEPARTURE FROM THE CITY'S PRIOR PRACTICE At the Council meeting of October 20, 1986 Planning Director Schuma answered questions regarding Planning Depart- ment practice in regard to pending applications. The minutes state, " [o)nce a plan has been submitted for review, the developer then has one year to complete the process under the ordinance that was in effect at the time the plans were submitted. . . ." The minutes further reflect that Mr. Schuma stated that the draft ordinance which was being prepared "will change the past Planning Department practice. " There are facts which indicate this change was directed at the Stubblefield project. 2 - II. THE AMENDMENT WE SEER IS CONSISTENT WITH STATE LAW Since the Mountain Shadows Villas Project did not involve a division of land, it did not require a subdivision map. Had such a map been required, the City would have been compelled to apply only the ordinances in effect at the date when the application for the project was complete. The Subdivision Map Act, which preempts local law, provides, "In determining whether to approve or disapprove an application for a tentative map, the local agency shall apply only those ordinances, policies, and standards in effect at the date the local agency has determined that the application is complete . " While there is one exception to that rule, it is not applicable here. If a city formally initiates proceedings by ordinance or resolution to amend its general plan or zoning ordinances, and publishes notice of such ordinance or resolu- tion, the city may apply ordinances in effect when the tenta- 3 - i tive map is approved or disapproved. No such ordinance or resolution had been published at the time the Stubblefield application was accepted as complete on May 30, 1986 . What we are asking the Council to do is very much in keeping with statewide practice. The practice is based upon concepts of fairness. III. FAIRNESS CONSIDERATIONS SUPPORT ADOPTION OF THE AMENDMENT WE PROPOSE What we ask from the City is fair and equitable given the prior actions and statements of City officials. In 1968, the City approached Stubblefield Enterprises and requested that it annex its property to the City, offering the R-3 zoning as an inducement. Later, when the City wanted to annex the Leonard property, it came back to Stubblefield a second time, asking to annex 40 additional acres east of City Creek Road for the sole purpose of annexing the Leonard prop- erty. Stubblefield complied with the request. 4 - In May, 1986 , Stubblefield Enterprises filed its application for Review of Plans 86-51 for a 594-unit apartment project on 52 .4 acres. On August 22, 1986, a revision was submitted for 492 apartment units on 29. 3 acres. During Sep- tember and October, 1986 the Environmental Review Committee and the Planning Commission considered the environmental impacts of the project, concluding that the Project would create no significant effects on the environment and recom- mending a negative declaration. About this same time, as you will recall, amendments to the R-3 zoning were under considera- tion. On September 22, 1986, John Stubblefield appeared before this Council, questioning the impact of the proposed amendments on this Project. The Minutes from that date state, " [h]e was told that the Council would work out the details at a later date. " The Minutes of the Legislative Review Committee from three days later show consideration of a related matter: 5 "Additionally, there will be no R 3-1200 zoning after the effective date of the ordinance but property already zoned R 3-1200 would be grandfathered under the old guidelines. " On October 20, 1986, the effective date of the R-3 amendment was considered by the Council. The minutes state: "Planning Director Schuma stated that the matter in question is the time or event that effectuates grandfathering. " "John Stubblefield, developer located at 2258 Bradford, stated that he has been processing a project through the City Engineering and Planning Departments for 18 months, during which time he has been repeatedly assured by Planning Director Schuma that it has been the policy of the City that when a project is submitted, the ordinance in effect at that 6 - time is the regulation that will prevail over that project. " Mr. Stubblefield also stated at that meeting that Councilman Marks had filed an appeal in opposition to his project and that due to the appeal, he had not been able to present his project to the Development Review Committee. That same day, ordinance MC-550 was adopted by the Council and MC-549 was adopted on an urgency basis, without notice or hearing, causing the new amendments to take effect 30 days following the adoption of the ordinance, contrary to prior City practice. You will recall that at a lengthy City Council meet- ing held on the night of November 17, 1986, and spilling over to the early morning hours of November 18, 1986, the City Council voted to require Stubblefield to prepare an environ- mental impact report on its project. The very same day, November 18 , a grandfather clause was considered and the matter 7 - was referred to the Legislative Review Committee. On Janu- ary 22, 1987, the issue was considered. The minutes from that Committee meeting which I attended show the following: "Grandfather clause for Mountain Shadows Villas - continued for six weeks. The City Attorney and Planning Director will review and analyze the City's position, provide a legal opinion on same, and a definition on what 'compatibility' in the R-3 ordinance means. A copy of the opinion is to be sent to Stubblefield's [sic] prior to the next meeting." And there the matter stood. The Saldecke and Skye lawsuit was filed in March, followed by the Council-imposed moratorium early in April. To my knowledge, a legal opinion on the grandfathering issue was never prepared. At least, one was never sent to Stubblefield. Your City Planning Director has prepared a memorandum concerning the issue, making a recommend- ation that grandfathering not be adopted. Significantly, that 8 - y memorandum provides no rational basis for denying grandfather- ing in this instance. The type of provision which we ask the City to adopt is not unusual. Similar types of provisions have been validated by the Courts and incorporated in much legislation throughout the State. Such provisions are encouraged where their adoption serves to avoid inequities. The Stubblefield project has received considerable opposition, much of it based upon an anti-rental housing bias. This is reflected in signs which appeared throughout areas surrounding the project prior to the hearing on the EIR, and in various homeowners' meetings. Such discrimination is pro- hibited by state law. This project has been pending for many months, and has been contemplated for many years. We urge you to amend the provisions governing the effective date of the R-3 ordinance to permit projects pending at the date of adoption to proceed under the prior ordinance. 9 - y Some of you may ask if Stubblefield can comply with the new R-3 requirements. It probably can, but that is not the issue. The issue is whether in fairness and equity the project should be allowed to go forward as previously presented to the City. The issue is whether the City will reverse a pattern of discriminatory and arbitrary action toward this project. The City has not treated this project as it has treated other projects. It has departed from its customary practices in numerous particulars. Here are just a few: 1. The City has set special meetings for considera- tion of this project and held deliberations at times and in locations not used for other projects, even projects which dwarf this project in size. 2 . The City took special action to adopt an urgency ordinance, without prior notice or hearing, which changed prior practice on this application. 3. The City somehow "erased" or "lost" that portion of the tape which recorded the Council meeting where Councilman 10 - Marks stated he would do everything in his power to stop this project. 4. The ERC and DRC took special action to place this project in some selective "hold" category, without any rational explanation of why that action was taken on this project and not any other. S. The City published a special notice of the January 4 Council meeting where the grandfather issue was to be considered, a notice not required by law. F s-. Your City Attorney may tell you that a grandfather clause is not mandated by law. This is true. However, a grandfather clause is permitted and can serve to remedy some of the past inequities directed at this project. By adopting the amendment we propose, you will take one step toward putting this project on an equal footing with other projects you have approved. - 11 - LAW OFFICES OF BREKHUS 8 WILLIAMS OF COUNSEL PETER B. BREKHUS 813 0 STREET TERRY D. FORTIER SCOTT A.WILLIAMS SAN RAFAEL,CALIFORNIA 9d901 BARRY F. WESTER 3449 WEST FRANKLIN ROBERT P. HALL,JR. TELEPHONE(415) 485-0500 POST OFFICE BOX 12204 MATTHEW D. BREKHUS FRESNO.CALIFORNIA 93706 TELEPHONE(209)486-8330 January 18 , 1988 HAND DELIVERED Shauna Clark, City Clerk CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 92404 Re: Stubblefield Enterprises ' Request to "Grandfather" A Review of Plans 86-51 Dear Honorable Mayor and Members of the Common Council: I represent a number of individuals in the Mountain Shadows area near the prc.posed Stubblefield Enterprises complex of 492 units on 29.3 acres at the northerly terminus of Citrus Street and La Praix Avenue. It is my understanding that on Tuesday, January 19 , 1988 , the Common Council will consider Stubblefield Enterprises ' request to "grandfather" a review of Plans 86-51 under ordinances existing prior to the adoption of MC-550. In previous communications to you, my clients raised the question as to what public good would be served by permitting a developer to build a project pursuant to older statutes, instead of requiring the developer to meet the most modern and updated regulations for health and safety. Although the term "grand fathering" is commonly used in zoning matters, I am unaware that that phrase or concept has any specific legal sanction or definition. At the date of writing this letter, I have not seen the request submitted by Stubblefield Enterprises and am not aware of the legal basis for such request. I have reviewed Ordinance MC-550 and the previous ordinance, Chapter 19 .08 .010 of the San Bernardino Municipal Code. Neither of these ordinances appear to provide any type of mechanisms that would allow the Common Council to waive the provisions of present City Ordinance MC-550 . It appears to me from limited research that the City of San Bernardino would have no power to grant Stubblefield Enterprises any kind of exemption from Ordinance MC-550 . Article I , Section 7 , of the California Constitution 112 I LAW OFFICES OF BREKHUS 8 WILLIAMS Shauna Clark, City Clerk January 18 , 1988 Page -2- specifically provides that a citizen or class of citizens may not be granted privileges or immunity which is not granted on the same terms to all citizens. I fail to see how the Common Council can grant Stubblefield Enterprises an exemption from Ordinance MC-550 without granting a similar exemption on the same terms to any other developer or person who wishes to develop property in the City of San Bernardino. Anticipating that Stubblefield Enterprises might argue that it has some kind of a "vested right" to construct its 492-unit apartment complex under the City' s previous ordinance, it should be noted that vested rights are protected from curtailment only to the extent that they relate to uses existing or construction in progress at the time of the particular enactment or amendment, which uses or construction do not constitute a nuisance. Wheeler v. Gregg (1949) 90 CA2d 348 , 203 P2d 37. There is no requirement that property must be zoned so a developer can divide the property for a higher economic use. Helix Land Co. , Inc. v. City of San Diego (1978 , 4th Dist. ) 82 CA3d 932 , 147 CR 683 . A party has no vested interest in a previous zoning classification of his property. Orinda Homeowners Committee v. Board of Supervisors (1970 , 1st Dist. ) 11 CA3d 768 , 90 CR 88 . Sierra Terreno v. Tahoe Regional Planning Agency (1978 , 3rd Dist. ) 79 CA3d 439 , 144 CR 776 . The fact that an owner of land in an area zoned for residential purposes contemplated the maximum commercial use thereof before passage of an ordinance is immaterial in determining whether he may make such use after adoption of the ordinance, since his purpose in purchasing land must yield to the public interest in the enforcement of a comprehensive zoning plan. San Diego County v. McClurken (1951) 37 C2d 683 , 234 P2d 972. Of course, the fact that the City, in using its zoning powers, produces an adverse effect on property interests and/or the fact that some hardship is experienced from the application of zoning regulations, or that it may be more profitable to make other uses of a particular property than that for which it is zoned, is ordinarily not controlling in determining whether regulations are valid. Wilkins v. City of San Bernardino (1946) 29 C2d 332 , 175 P2d 542; Paramount Rock Company v. County of San Diego (1960 , 4th Dist. ) 180 i LAW OFFICES OF BREKHUS 8 WILLIAMS Shauna Clark, City Clerk January 18 , 1988 Page -3- CA2d 217 , 4 CR 317 . The fact that the value of land is depreciated by a zoning ordinance ordinarily can not prevent the application of the ordinance so long as there is nothing arbitrary or unreasonable about it. Friel v. County of Los Angeles ( 2nd Dist. ) 172 CA2d 142 , 342 P2d 374 . By its very nature, zoning ordinances may be expected to depress the value of some land while it operates, in its total effect, to achieve an end which will benefit the whole community. Ensign Bickford Realty Corp. v. City Council of Livermore (1st Dist. ) 68 CA3d 467 , 137 CR 304 . It is said that damage or loss caused by the proper exercise of municipal zoning powers is merely one of the prices an individual must pay to be a member of society. Los Angeles v. Gage, 127 CA2d 442 , 274 P2d 34. In conclusion, there does not appear to be any valid reason why the City of San Bernardino should exempt Stubblefield Enterprises from the provisions of the new ordinance, MC-550 . To do so would appear to violate the California Constitution and State law, and, more importantly, would be bad policy for the City of San Bernardino to follow. Ve yours, PETER B. BREKHUS PBB:kma } of Talifi; Ja GOVERNOR'S OFFICE i OFFICE OF PLANNING AND RESEARCH .o... 1400 TENTH STREET SACRAMENTO 95814 GEORGE DEUKMEJIAN GOVERNOR January 14 , 1988 Mr. James F. Penman City Attorney City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Dear Mr. Penman: This letter is written in response to the request contained in Resolution No. 87-402 passed and adopted by the City of San Bernardino on November 9 seeking a change in the conditions south of the line established in my prior letters imposing conditions upon the City in connection with the granting of an extension of time in order for the City to update its General Plan. In issuing this letter, I have examined the materials submitted by you pursuant to my letter of November 13 , and have also reviewed correspondence received from those opposing the request of the City. Please be advised that effective upon receipt of this letter by your office, the conditions imposed upon the City contained in my prior letters of June 11, July 3 , and August 18 of 1987 relating to that area south of said line which runs approximately west to east and divides the foothill areas of the City in the north from the more developed areas to the south are lifted subject to the following exceptions and restrictions: 1. The requirements imposed pursuant to condition A of my July 3 , 1987 letter relative to City Resolution No. 82-345 are still applicable to all projects south of said line; 2 . The lifting of conditions by this letter does not apply to R-2 and R-3 restrictions and R-2 and R-3 exceptions; 3 . Relative to Planned Residential Development (PRD) , the lifting of conditions by this letter applies only to single family development and does not apply to multifamily development; 4. No zone change will be permitted, such as a redesignation from "commercial" to "residential; " nor shall any change occur in any zone which results in a greater density use, such as a change from 1IR-1" to "R-3 • " Q James F. Penman January 14 , 1988 Page 2 5. The sole function of the 5-member committee shall be to assure that the approval to proceed of any eligible proposed development south of said line is in keeping with the surrounding land uses and is likely (rather than unlikely) to be consistent with the new General Plan designation; 6. The decision of said committee relative to an eligible proposed development being in keeping with surrounding land uses and the decision involving whether or not said development is likely or unlikely to be consistent with the new General Plan designation shall be by majority vote of the committee; and 7. The decision of the committee shall be final. There shall be no appeal or other need to exhaust administrative City remedies. Decisions of the committee may be subsequently reviewed by it if new and material evidence is presented which was not available at the time the original decision was made. Since the extension of time is more than half completed, the lifting of conditions by this letter with the prior exceptions and restrictions shall be in force and effect until all of the elements of the General Plan requested by the City to be updated have been revised and adopted or until June 10, 1988 (one year after the effective date of the granting of said extension) , whichever occurs first. I Cor ial , ton T. Car yle, r. Director HTC:jw c: Marguerite P. Battersby, Attorney Dale Ortman, Attorney i 5 REQUEST FOR RELEASE OF MORATORIUM - NORTH OF THE LINE The following action was taken in closed session and announced on open session 1-19-88. The Mayor and Council agreed to ask Mr. Houston Carlyle of the Office of Planning and Research to lift the moratorium north of the line on commercial, industrial, and R-1-- .07, 800 zoning, and on individually owned lots any lawfull size R-1-7200 and above, and not part of a development. City Clerk ' s Office