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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 o 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 o 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 ............,~., , /. .~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o o 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"", """,.~. -- . ..,',.- ~ ..- Attorneys for Respondent, CITY OF SAN BERNARDINO PLANNING DEPARTMENT '91 c;:'P'O P"15 Jh' "'" ." . BEFORE THE CITY OF SAN BERNARDINO CITY COUNCIL IN RE THE REVOCATION OF CONDITIONAL DEVELOPMENT NO. 198, ) PERMIT ) ) ) ) ) ) ) ) ) ) ) ) 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. / / / / HE/dys/ccm.pl<s 1 Augu.t 21. 1991 30 ( ';4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o o 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 2 August 21. 1991 ( .~ o o 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 HE/cIys/ccm.p&. 3 August 21. 1991 ~ ., 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o o 1 2 3 4 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. / / / / RE/dya/ccm.p&a 4 August 21. 1991 J ~ " 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o o 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 5 August 21. 1991 -''''''''',",,~,-- ~ ,. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o o 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. HE/dya/c:cm.p&a 6 Auguat 21. 1991 .. rt , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o o 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 w . By: '" HENRY EMPENO, JR., Deputy City Attorney Attorneys for Respondent, CITY OF SAN BERNARDINO PLANNING DEPARTMENT HE/dy./cClll.p.. 7 Auguot 21. 1991 .. ,( \ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o o RECEI"'-' .- ',,' . ~ l :- ,- - I~ . '91 SEP 30 P 4 : 15 ) ) ) ) ) ) ) ) ) Permittes/Appellants.) ) ) 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 1 ~ ,f , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o o 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 2 ,~ , ,f o o 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)