HomeMy WebLinkAboutAGENDA REPORT 1990 0711 CC REG ITEM 11A�d� 7A31VIOORPARK
BERNARDO M. PEREZ
Mayor
SCOTT MONTGOMERY
Mayor Pro Tom
ELOISE BROWN
Councilmember
CLINT HARPER, Ph.D.
Councilmember
PAUL W. LAWRASON, Jr.
Councilmember
LILLIAN KELLERMAN
City Clerk
M E M O R A N D U M
i T EM
STEVEN KUENY
City Manager
CHERYL J.KANE
City Attorney
PATRICK RICHARDS, A.I.C.P.
Director of
Community Development
R: TENNIS DELZEIT
City Engineer
JOHN V. GILLESPIE
Chief of Police
RICHARD T. HARE
City Treasurer
TO: The Honorable City Council
FROM: Patrick J. Richards, Director of Community Development
DATE: July 6, 1990 (cc meeting July 11, 1990)
SUBJECT: Comprehensive Program for General Plan Amendments (CPO)
At the Council's June 27, 1990 meeting, Staff was directed to have
the Planning Commission review the draft CPO. The Commission was
to comment on the draft so that the Council could have benefit of
their input prior to taking any final action.
On July 2, 1990 the Planning Commission (Chairman Wozniak absent)
considered the draft CPO, which was presented to the Council at
their June 27, 1990 meeting. The Commission members noted general
concurrence with the intent of the CPO. The members also were
concerned regarding the limited t nle for review. There were no
other comments beyond the above two.
PJR6JUL9.2
799 Moorpark-Avenue Moorpark, Califomia 93021 (805) 529 -6864
5922/mam/8081B
045485 - 004 -001
July 11, 1990
To: Mr. William Messenger, Jr..
From: Gary Austin
Re: City of Moorpark Proposed Comprehensive
Program Growth Management ordinance
( "CPO ") /Compliance with Laws
You have asked me to research whether the CPO contains
any significant legal flaws which may render it invalid and
unenforceablQ if adopted by the City of Moorpark ( "City$')
and /or the voters of Moorpark. Based upon my research,
consultations with our legal counsel, and interviews with
various persons connected with thQ CPO process, I have
concluded that the CPO has several legal defects:
1. The City is attempting to allow tha voters to
process general plan amendments on a single issue (density and
intensity of use) by leaving it to the voters to approve any
changes in land use designations, or the creation of new land
use designations, which operate to exceed the holding
capacities established by the CPO. It is beyond the scope of
the initiative power for the voters to attempt to exercise such
discretion over such general plan amendments. The state
planning and zoning law clearly requires local legislative
bodies to have unfettered discretion in the processing of
general plan amendments. The City must be free to make truly
comprehensive changes to the general plan as changing
conditions dictate, without constraint from the voters as to
"single focus" issues. ,=, Cal. Gov't. Code §65350 - 65359;
Simpson v. Hite, 36 Cal. 2d 125 (1950); =allor y. Brown, 221
Cal. App. 2d 319 (1963); L.I.F.E. Committee v. City of Lodi,
213 Cal. App. 3d 1139 (1989).
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2. The restrictions imposed by the CPO MUpt relate
to protection of the public health, safety and welfare. U.S.
CONST. amend. V; CAL. CONST. Art. XI, S7; Berman v. Parker, 348
U.S. 26 (1954); Assoc, Homebuiiders of the Greater Eastbav v.
City of Liygr re, 18 Cal. 3d 582 (1976). From reading the
CPO, it is very difficult to divine exactly what type of public
ill the CPO intends to cure by adopting the CPO. If it is
determined that the legislative intent behind the CPO is simply
to permit the City to stop indefinitely all new development
which would exceed the holding capacities stated in the CPO
unless the voters decide otherwise, then application of the CPO
to a landowner may well violate the state and federal
constitutions as a taking of private property for a public
purpose without payment of just compensation. U.S. CONST.
amend. V, XIV; First English Lutheran Evangelical Church of
Glendale v. County of Los Angeles, 107 S. Ct. 2378 (1987);
Agins v. City of Tiburon, 447 U.S. 255 (1980).
3. Even if it is determined that the CPO is intended
to resolve a legitimate public health and safety problem such
as traffic, the CPO still does not pass constitutional muster
as there is no apparent rational relationship between the
restrictions imposed by the CPO and a solution to traffic
problems or any other public problems. U.S. CONST. amend v;
CAL. CONST. Art. 1, S7; Village Qf Euclid v. Ambler Realty Co.,
272 US 365 (1926); Metromedia, Inc. v. City of San Diego, 26
Cal. 3d 848 (1980); TerminAAl Plaza Corp. y. City and County of
San Francisco, 177 Cal. App. 3d 892 (1986). In fact, the CPO
would seem to worsen the City's ability to deal with present
and future traffic problems. The lack of any provisions in the
CPO permitting an owner to mitigate its traffic effects
effectively denies the City of any practical and /or economic
means of developing new street and highway improvements.
4. The CPO violates both the letter and the spirit
of the California Environmental Quality Act ("CEQA ") (Cal. Pub.
Res. Code § §21000- 21177) by unlawfully requiring that major
discretionary governmental acts (i.e., the adoption of general
plan amendments) be made solely by the public vote once holding
capacities are met. CEQA's paramount objective is to ensure
that the discretionary acts of governmental agencies receive a
thorough evaluation of all of their environmental effects, and
this policy is clearly expressed in that legislation. Cal.
Pub. Res. Code SS 21000, 21001; Friends Qf Mammoth y. Board of
Supervisors of Mon,Q__ County, , 8 Cal. 3d 247 (1972). By requiring
that such major land use decisions be decided solely by the
voters now and in the future, the City is attempting to
improperly and unlawfully circumvent the crucial environmental
review process that CEQA was enacted to secure.
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S. At a minimum, decisions as to whether to restrict
density and intensity of use pursuant to the CPO will have a
profound fiscal impact on the City, and will likely have other
significant effects as wall, such as significant impacts on
traffic and long term impacts in the area. One particularly
critical portion of any environmental analysis pursuant to CEQA
is the determination of the fiscal impact of a proposed
governmental action. 14 CCR 515131. To ignore the fiscal
impact of a proposed general plan amendment concerning land use
intensity and density is not only prohibited by law, it is
irresponsible government as well.
In summary, the CPO, at a minimum, does not comply
with tha statutes and constitutional provisions listed below.
Statute Case Reference
a. U.S. CONST. amend. V, XIV Berman v. Parker; Assoc.
CAL. CONST. Art. X1, §7 Homebuilders of the
Greater Easy ay X. city
of Livermore: First
English Lutheran
Evangelical Church of
Glendale v. County of
Los Angeles; "Agin v.
CitY Q (,,,_Tiburon
b. U.S. CONST. amend. V yillaae__of_Muc_lid v.
CAL. CONST. Art. I, §7 Ambler Realty Co.:
Metromedia, Inc. v. City
of 5an gigao: Terminal
Plaza Corn. v. City and
County of San Francisco.
C. Cal. Pub. Res. Code 55 Friends of Hammoth v.
21000, 21001 Board of Supervisors of
Mona C gUz3ty
d. 14 CCR §15131
e. Cal. Gov't. Code 565350 - Simpson V. Hite; Mueller
65359 v. Brown; L.S.F.E.
Committee V. City of
Lodi, 213 Cal.App.3d
1139 (1989)
Other problems with the CPO which leava it vulnerable_
to attack include the following:
-d-
1. The CPO denies equal protection of the law under
the federal and state constitutions by treating similarly
situated landowners differently depending solely on when they
apply for a general plan amendment changing a land use
designation. The CPO also results in non - uniform treatment of
landowners within the same zone for the same reasons, in
violation of California law.
2. The CPO amounts to a general plan amendment which
is internally inconsistent with the City's existing general
plan.
3. It appears that the City intends to certify a
negative declaration under CEQA in .connection with its approval
of the CPO, or will find that the CPO is exempt from the
provisions of CEQA. Certification of a negative declaration
will not comply with CEQA as approval of the CPO will have Wiry
very significant effects on the environment, not the least of
which are traffic, fiscal, and long -term cumulative impacts
generally linked to decisions concerning allowable intensity of
use and density. Preparation of an environmental impact report
is required under CEQA for the City's proposed action.
Finally, approval of the CPO is a project which is not exempt
from the provisions of CEQA.
Many local governments that have grappled with growth
control measures over the past several years have addressed,
and in some cases have cured, many of the defects set forth
above in drafting their growth control ordinances. while it is
possible that the CPO could be revised to cure these
deficiencies, substantial re- drafting will be required.
As it is currently written, it appears that the CPO
leaves itself fairly wide open as the subject of protracted and
expensive litigation, comparable to the litigation currently
pending over Simi Valley's growth management plan.
I
41S 1
DEVELOPMENT PLANNING SERVICES
1830 Lockwood, suite 110 July 1 1, 1990
Oxnard, CA 93030
(805) 988 -1806
The Honorable Bernardo Perez
Mayor of the City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
RE: Comprehensive Planning Ordinance
Dear Mayor Perez:
Our firm represents the Levy Company, owners of a 285 acre parcel included in the current General Plan
Update identified as GPA 89 -1 (F). Additionally, Levy Company owns a 139 acre parcel immediately west
of the existing Buttercreek Tract for which we have requested General Plan Update consideration of a land
use designation of one unit per gross acre in a Residential Planned Development concept with perimeter
open space and clustered lots or dwelling units.
We are in disagreement with the current draft of the Comprehensive Planning Ordinance (CPO) and
request that it be amended to address these concerns. The CPO is unfair to the General Plan Update
applicants in that it creates an additional step in the land use entitlement process which was neither
disclosed to our client and other update participants, nor was it implied by staff or the City Council to any
participants i n any of the i nitiai requests for participation in the General Plan Update, requests for share
of cost payment of General Plan Update costs, or included in the scope of work which would be involved in
the current General Plan Update. The inequity created is that the General Plan Update which is now
underway will not be exempted from the CPO if the ordinance is in effect prior to the adoption of the
updated General Plan. It is unfair to the update applicants to pay for a General Plan Update, have that plap
approved by the City Council, and then have to go through the process of having that General Plan Update,
or a particular segment of the update, validated by a vote of the registered voters of the city at a later date.
Effectively, the actions of the City Council and the General Plan Update applicants to create the plan now
underway at this time have little entitlement value if they must still be processed individually or as a
group under the CPO. We are requesting that the current General Plan Update properties be specifically
exempted from the Comprehensive Planning Ordinance.
further, the Levy Company has proposed an east -west Highway 118 bypass through their 285 acre parcel
which could be built in the near -term future on the roadbed of the ultimate State Route 118 freeway. As
proposed, this roadway would be built with a combination of developer and public funds to provide a
circulation alternative to Los Angeles Avenue for through traffic and locally- generated traffic leaving the
City of Moorpark. This roadway alignment has been included in the Austin -Foust circulation plans for the
General Plan Update and was endorsed by the City Council at the General Plan Workshop of July 9, 1990
for inciusiac, in the preferred alternatives for EIR study. The preliminary Austin -Foust traffic reports
have indicated that without the construction of the east -west bypass at this location there will be no
possibility of achieving the City Council's desired traffic leveis of service on Los Angeles Avenue, Spring
Road, or High Street. The current draft of the Comprehensive Planning Ordinance is unfair to the
developers of that roadway in that there is no provision for credit, exemption, or other recognition of the
positive impact which this new roadway would have on the overall Average Daily Trip (ADT) capacity of
the city roadway network. If the intent of the CPO is to be a traffic monitoring device it is logical and
equitable to have the ordinance provide a mechanism for credit evaluation of a project on the same
quantitative basis as it utilizes in punitive evaluation, in this case ADT and traffic levels of service. We
are requesting that the CPO provide exemption to those projects which create additional HIDT capacity to the
city roadway network, specifically the Levy Company 285 acre project.
Public Avwntv Ent dement • Planning Design • Project 5lanawerment
The Honorable Bernardo Perez
Mayor of the City of Moorpark
RE: Comprehensive Planni rig Ordi nance
July 11, 1990
Page Two of Two
Finally, it is the intent of the Levy Company to pursue the possiblity of development of a substantial
number of residential dwelling units to be marketed to low and moderate income households in the high
density segment of the 285 acre parcel. The Comprehensive Planning Ordinance as drafted does not
provide for exemption to affordable projects. This oversight is unfair to low and moderate income persons
in that the additional costs of processing time and expense of an affordable project will be passed directly
on to the buyers of these units. Further, it is possi ble that the public vote on a specific affordable housi ng
project under the CPO criteria may result in a denial of the specific project request, not on the basis of
traffic generation as is intended by the CPO, but on prejudice against affordable housing. We request that
language be included in the Comprehensive Planning Ordinance which would specifically exempt low and
moderate income - targeted projects under guidelines utilized by the County of Yenture and other public
agencies.
The Comprehensive Planning Ordinance as drafted is unfair and punitive to both the landowners and
developers doing business in the City of Moorpark. More importantly, it will not achieve the purported
goal of this City Council, which is to provide traffic solutions. As a result, there will be little in the way
of traffic sol utions brought forward by the private sector and thru traffic on the 1 18 and 23 from sources
outside the control of the City of Moorpark will continue to increase. Overall, the CPO will have a
negative effect on existing residents and the quality of life in Moorpark as the roadway system deteriorates.
Development Planning Services and Levy Company cannot support the enactment of this ordinance and will
continue to press for a more equitable way to enforce traffic monitoring standards.
Sincerely,
Dennis Hardgreve
for the Levy Company
cc: City Council and City Clerk
Levy Company
GREATER LAS ,ri�4t _�S - .iEt, T:r;?A �C.'sUyTIES kEG!'-N
Building Industry Association of Southern Cal�forn�: ,
July 11, 1990
Honorable Mayor Bernardo Perez
City of Moorpark
City Hall
799 Moorpark Ave.
Moorpark, CA 93021
Dear Mayor Perez:
Thank you for the opportunity to provide input on the
proposed Comprehensive Planning Ordinance (CPO). We
appreciate the chance to provide information pertaining to
issues such as this, which profoundly affect the industry we
represent.
Briefly, the salient points of our correspondence relate to;
a request for clarification concerning the adoption and
implementation, a request for information concerning the
General Plan Update, a discussion of the effectiveness of
existing growth controls, and a discussion on the appropriate
role of elected officials in land -use decisions.
To begin, we need to clarify how the CPO is intended to be
adopted and become effective. The original proposal as we
understood it was to take the proposal to the electorate for
adoption. Is this still the intent? If not the approval'
requires the normal advertisement, public hearings, first and
second readings, and effective dates prescribed by law.
In addition, we are interested in the processing of the
General Plan Update. The draft CPO recognizes the importance
of the update by making allowances for its incorporation into
the CPO. Given the impending adoption of the Update, it
would appear to be prudent to await its approval.
As we review this document, a more basic concern arises.
Given the effectiveness of existing growth control measures,
why is this additional control necessary? It is our
understanding that housing allotments have not been fully
subscribed over the last couple f years„
Page 2
What possible benefit can be derived from an ordinance which
will increase city costs for staff oversight and initiative
expenses, when existing controls such as Measure F have so
measurably restricted residential development.
Probably the most significant policy issue to be raised by
the CPO is the appropriate role of elected officials in the
land planning process. Moorpark, as well as most cities,
incorporate to allow local control of land -use decisions.
Cities expend significant portions of their budgets
supporting the planning process through the retention of
professional staff and consultants. Using the resources
available through the city, elected officials have the
information necessary to make intelligent decisions
concerning the complex issues frequently encountered in land
use planning. The CPO in effect, allows elected officials to
abdicate their fiduciary duty to their citizens. Instead of
relying on the careful reasoning of individuals they have
elected, voters will be forced to make important decisions
based on 60 second sound bites and campaign literature.
Future city officials will also be handicapped by the
proposed CPO. Future city councils will not be able to
respond to opportunities or problems with the flexibility of
current or past councils. Even City proposed general plan
amendments must go through the initiative process, which is
only fair.
Given the myriad problems associated with the draft
Comprehensive Planning Ordinance, and the unquestioned impact
of existing growth control measures and land use planning
law, the CPO's adoption is unwarranted.
Page 3
The Building Industry Association would like to thank you in
advance for considering the points we have outlined above.
Sincerely yours,
AA1
Robert K. Holmes
Legislative Advocate
RKH:mb
cc: Eloise Brown - Councilwoman
Paul Lawrason - Councilman
Clint Harper - Councilman
Scott Montgomery - Councilman
Steve Kueny - City Manager
Patrick J. Richards - Director Community Development
Cheryl Kane, Esq. - City Attorney