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HomeMy WebLinkAboutAGENDA REPORT 1986 0218 CC REG ITEM 10A2 LAW OFFICES BuxKE, WILLIAMS & SOBENSEN ONE WILSHIRE BUILDING MARTIN J. BURKE' CHERYL J. KANE 524 SOUTH GRAND AVENUE, )ITN FLOOR TELEPHONE: (213) 623-1900 GEORGE W TACKABURY' RAYMOND J. FUENTES LOSS ANGELES, CALIFORNIA 90017 TELECOPIER: (213) 623-8297 JAMES T. BRADSHAW,JR.- RONALD E. LEVINE MARK C. ALLEN,JR.- VIRGINIA R. PESOLA TELEX: 671-1271 RICHARD R. TERZIAN' S. PAUL SRUGUERA CABLE ADDRESS MARTIN L. BURKE' MICHELE R. VADON BWSLA UW CARL K. NEWTON' B. DEREK STRAATSMA J. ROBERT FLANDRICK' NEIL C. EVANS EDWARD M. FOX SCOTT F FIELD DENNIS P. BURKE' CRISTINA L. SIERRA January 27 , 1986 LELAND C. DOLLEY' JOHN W. BELSHER COLIN LENNARD' BENJAMIN S. KAUFMAN HARRY 12 C. WILLIAMS (1912-1967) BRIAN J. .EERY* MICHAEL J. LONG Reissued February 3/ 1986 THOMAS J. FEELEV' ELLEN M. BENDER ROYAL M. SORENSEN NEIL F. YEAGER* GREGORY A. DOCIMO (1914-1983) BRIAN A. PIERIK' CYNTHIA D. GOENA KATHERINE E. STONE' KEVIN S. MILLS CHARLES M. CALDEROW DEBORAH J. FOX THOMAS H. DOWNEY CAROL A. SCHWAB OF COUNSEL PETER M. THORSON MARC G. PENSO DWIGHT A. NEWELL HAROLD A. BRIDGES LISA E. KRANITZ GEORGE W. WAKEFIELD 'PROFESSIONAL CORPORATION The Honorable James Weak and Members of the City Council City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 RE: Response To Questions Relative To General Plan Amendments and Zone Changes Dear Mr. Mayor and Council Members : At your meeting of January 20, 1986, you requested that I respond to a list of fourteen ( 14) questions submitted by John Galloway, a resident of Moorpark . The questions and my responses are set forth below. The responses are made without reference to any specific request relative to amending the General Plan for , or changing the zone of, Gisler Field. Any change in the residential or commercial designation must stand independent of the other ; that is, each must be reasonable under the circumstances . Question 1A. Can the city change Gisler Field G.P. Land Use and Zoning in response to residents ' petition and findings at a public hearing? Response No. State law requires that before a city council can take action on a general plan amendment or zone change, the matter must be referred to the planning commission for a public hearing and recommendation, which recommendation is then considered by the city council at a public hearing . (Gov' t Code § 65350, et sec. . and § 65853, et seq. ) Since general plan amendments and zone changes are projects under The Honorable James Weak and Members of the City Council January 27, 1986 Page 2 CEQA, the environmental review process must accompany this planning process. Question 1B. What findings would be required? Response General plan amendments and zone changes are legislative acts; as such, no findings are required under state planning law. However , general plan amendments must be reasonable and internally consistent with all other provisions of the general plan and zone changes must be consistent with the general plan. Question 2. Is the City Council legally required to take direct action for or against the public hearing request? ( In what time-frame?) Response No. Under state law, the initiation of general plan amendments and zone changes is at the discretion of the City. The City may permit interested persons to make application for an amendment or change. (Gov' t Code § 65357 . ) A request for a public hearing by citizens at large does not come within the procedures that have been adopted by the City. Question 3. Might it be impeachable for the City Council to ignore the request with no action? Response No. Impeachment is for misconduct in office. As stated above in answer to question 2, the City Council has no legal obligation to hold the requested public hearing. Furthermore, in California, impeachment is reserved for removal of state officers and judges . (Calif . Con. Art . IV, § 18. ) Question 4. True or false: "The city has discretionary powers to adjust the General Plan and Zoning on parcels within city limits toward higher or lower valued uses. " Response True. However , the exercise of discretion must be reasonable in objective and not arbitrary or confiscatory The Honorable James Weak and Members of the City Council January 27, 1986 Page 3 in operation; nor may the exercise of discretion deprive a property owner of substantially all reasonable use of his property. Question 5. If it can be shown that residents ' request balances over the entire parcel to result in NO NET LOSS to the property owner, would any other consideration preclude the city from making such a change at this time? Response Yes they could. What those considerations might be would depend, among other things, upon the information uncovered by staff in the preparation of its analysis and report and the evidence that was presented through the public hearing process . See also the response to questions 8 and 10 below. Question 6. What would the answer to #5 be if there were some diminution of value? Response The same. Diminution of value by itself does not make a change of zone unreasonable. However, the courts may invalidate the change on other grounds. See for example Arnel Development Co. v. City of Costa Mesa discussed in response to question 10 below. Question 7 . What magnitude of lower value would define the threshold of legally acceptable changes in property values? Response The courts do not proclaim objective criteria ( i .e. , a 60% reduction in value is acceptable while a 61% reduction in value is unacceptable) . Each case turns on its own facts . Question 8. Is the timing of General Plan and Zone change requests critical, or is the primary issue the change in values regardless of timing? Response The timing of a general plan amendment or zone change request is of no particular importance. What is critical is that the correct procedures are followed and the The Honorable James Weak and Members of the City Council January 27 , 1986 Page 4 actions are reasonable and not arbitrary or discrimina- tory. In that regard, the timing of the amendment or change may have a bearing upon the reasonableness of the action. See for example Arnel Development Co. v. City of Costa Mesa discussed in response to question 10 below. Question 9A. What role does motive play in determining validity of such changes? Response The purpose or motive of officials in enacting a general plan amendment or zone change is generally irrelevant to any inquiry concerning the reasonableness of the action. However , were the facts establish that the amendment or change was enacted to discriminate against a particular parcel of land, the court may consider or give weight to evidence of the motives of the City Council . ( 66 Cal. Jur . 3d, Zoning and Other Land Controls, § 57) Question 9B. Does the law recognize a distinction between changes proposed as response to a specific plan proposal and changes proposed regardless of plan details? Response The question is ambiguous. "Specific plan" is a term of art under state planning law--a specific plan is for the "systematic implementation of the general plan" . (Gov' t Code § 65450) If what is meant is a specific development plan for the property, the answer is no. A general plan amendment or zone change must stand on its own merits without regard to any specific development proposal . Question 10. Please outline any forseeable existing basis on which a court would reverse the action by the city to change from VHD to MEDIUM DENSITY under circumstances where effort was made to eliminate great loss in property value? Response The answer depends upon the facts as they exist at the time of the general plan amendment or a zone change. An example of a situation in which a court invalidated a rezoning where diminution of value was not at issue is Arnel Development Co. v. City of Costa Mesa ( 1981) 126 Cal . App. 3d 330. There plaintiff ' s property was rezoned to single family residential within sixteen ( 16) months after having The Honorable James Weak and Members of the City Council January 27, 1986 Page 5 been zoned for the express purpose of permitting moderate- income, multi-family housing. The court held that the rezoning was arbitrary, capricious and discriminatory, because there had been no significant change in circumstances or consideration of appropriate planning criteria and because the sole purpose was to defeat the proposed multi-family development . The court also held that by completely precluding multi-family housing in the area, the rezoning was not rationally related to the public welfare, but was only related to the interest of adjoining property owners and residents. Question 11 . As a general rule: In cases where zoning and G.P. Land Uses are contested in the courts and the landowner prevails, is not the prior zoning simply restored and no award of damages occurs unless it was a clear-cut case of abuse of power and intent? Response Under existing law, the general rule is invalidation of the challenged general plan amendment or zone change. However, this rule is presently under reconsideration by the U.S. Supreme Court in a case arising from a zoning action taken by the City of Davis, California. Furthermore, even under current California law, a landowner is entitled to monetary damages when the general plan amendment or zone change is a prelude to public acquisition or evades the requirement that land used by, or for the benefit of, the public must be acquired by eminent domain. Question 12. If McLeod, for instance, had purchased the land when the northern portion was zoned for single family homes and had themselves requested the VHD GPA from the county, would that dillute any claim for financial loss by McLeod for financial loss (sic) if the city chose to reverse the designation? Does subsequent change in ownership (hypothetical) restrict the city' s options? Response The history of the ownership of property or the value of the property when originally purchased is of no consequence. The test is whether the general plan amendment or zone change is reasonable in light of the facts as they exist at the time of the challenged action. The Honorable James Weak and Members of the City Council January 27 , 1986 Page 6 Question 13 . Would changes in surrounding ( impacting) Land Use designations be valid factors in determining that the city should initiate changes to de-intensify Land Use on parcels nearby? Response Such changes could be, provided that they were reflected in the general plan and zone designations of the surrounding properties, those designations were reasonable and, finally, those designations were part of a comprehensive planning scheme which could not logically be carried out without amending the general plan designation and changing the zone of the subject property. Question 14 . What would be the legal interpretation of the current status : DO WE OR DO WE NOT HAVE A PROJECT PROPOSAL UNDER SUBMISSION AT THIS TIME? Response As I understand the facts, on August 13, 1984, a planned development permit application, known as PD-1014, was filed by Keith Macloud, as owner of the property, for a 316 unit apartment project . A draft EIR, parcel map and development permit for the project were scheduled for a Planning Commission hearing on November 14 , 1985. Prior to the meeting, the optionee of the property and developer of the proposed project told staff that it no longer had any interest in the property or the project . At the meeting, an attorney for Dan Palmer stated that his client was now the developer and that the project plans were being revised. In light of this new information, the proceedings relative to PD-1014 were "taken off calendar" . At this time, I understand that Palmer is in escrow to buy the property and that its architect has represented to staff that a new and entirely different plan for the project is being prepared. Under the City ' s zoning regulations, the application for a development permit is to be filed by the owner of the property. (Codified Ordinances of Ventura County § 8163-4 . 11) That was done by Keith Macloud, who remains the owner of the property. A change in prospective owner or developer does not invalidate the application. Until escrow closes there has been no change of ownership; and typically, the closing of escrow is contingent upon the prospective buyer receiving all of the necessary planning The Honorable James Weak and Members of the City Council January 27 , 1986 Page 7 approvals for the project it proposes to develop on the property. The City ' s zoning regulations are silent with respect to the circumstances under which a new application is required to be filed. However , it would not be unreasonable to interpret the regulations to require that a new application be filed if the applicant makes substantial changes to the project after the application has been accepted as complete. Obviously, such changes make it necessary to begin the planning and environmental review process anew. Based upon the architect ' s representations, it might reasonably be construed that the applicant has abandoned the application that was filed in 1984. However , a court could find that this fact alone is not determinative, and so would weight it along with all of the other facts relative to a General Plan amendment and zone change of the property in determining the reasonableness of those actions . Very truly yours, 2CHeL . KA NE City Attorney, MOORPARK; and BURKE, WILLIAMS AND SORENSEN