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Pub Hear-Appeal of PC denial of CUP 91-35/CE (Variance) 9
RECEIVED CITY CLERK i'ITY OF BAILEY & SCHULTZ HUHT1kG ON {.i.:.,CH, CALF. LAWYERS t1 A PROFESSIONAL CORPORATION Aq. 7I Z 25 PH 192 BRINDERSON TOWERS 19800 MACARTHUR BOULEVARD SUITE 1450 IRVINE, CALIFORNIANI 92715 (714) 724-4519 FAX (714) 833-9275 January 21, 1992 The Honorable Peter Green The Honorable Jim Silva Mayor, City of Huntington Beach 2000 Main Street 2000 Main Street Huntington Beach, CA 92648 Huntington Beach, CA 92648 The Honorable Grace Winchell The Honorable 2000 Main Street Don Mackllister Huntington Beach, CA 92648 2000 Main Street Huntington Beach, CA 92648 The Honorable Jack Kelly The Honorable 2000 Main Street Linda Moulton Patterson Huntington Beach, CA 92648 2000 Main Street Huntington Beach, CA 92648 The Honorable Earl Robitaille Robert Sangster, Esq. 2000 Main Street Assistant City Attorney Huntington Beach, CA 92648 2000 Main Street Huntington Beach, CA 92648 Gail Hutton, Esq. Mike Adams City of Huntington Beach Planning Department 2000 Main Street 2000 Main Street Huntington Beach, CA 92648 Huntington Beach, CA 92648 Re: Conditional Use Permit No. 91-35 Conditional Exception (variance) No. 91-28 Coastal Development Permit No. 91-15 Applicant: James Gartner Property Owner: Emad Ali Hassan 4471 Los Patos Avenue Huntington Beach, CA 92649 Dear Huntington Beach City Council Members: Emad Ali Hassan hereby respectfully submits this factual and legal narrative for your consideration as you decide the issue relative to his request that .you grant him a variance regarding the height of his present and existing six year old home. Assistant 3 Re: Hassan January 21, 1992 Page 2 City Attorney Robert Sangster, who vigorously defended the City of Huntington Beach in full partnership with Mr. Hassan's counsel, requested that we submit both factual and legal information that may assist you in your decision making process. Mr. Hassan believes that once you consider the following information, along with Mr. Reince's position statement, you shall be convinced that there is no merit to forcing Mr. Hassan to expend in excess of $250, 000. 00 to modify his home, particularly in light of the logically unsupportable complaints you have heard, and will hear, about the home. As such, Mr. Hassan respectfully requests you grant the variance as recommended by the Planning Department Staff Report. Very truly yours, BAILEY 6 SCHOLT A.P.C. MA MCB/md enc. as noted i i i 1 � - 2 FACTUAL BACKGROUND 3 4 Charles Reince ("Reince") built his present Huntington Beach 5 residence in 1983 . In January, 1985, Emad Ali Hassan ("Hassan") 6 applied for permits to build his home three lots downhill from 7 Reince. In late September, 1985, well after construction of 8 Hassan's home began, Reince began his efforts to force the City of 9 Huntington Beach to take action against Hassan relative to the 10 height of his home. 11 Since September, 1985, this matter has been at issue with the 12 Huntington Beach City Council, Orange County Superior Court, Court 13 of Appeal of the State of California, Huntington Beach Planning 14 Commission, and once again, the Huntington Beach City Council. 15 Reince has forced both the City and Hassan to expend hundreds of 16 thousands of dollars during this six year ordeal. 17 During the past six years, the facts have never changed, 18 despite Reince's occasional omissions of some key facts. The City 19 specifically and deliberately issued Hassan a building permit 20 based upon the plans submitted. Those same plans described a 21 three story home that was higher than the present existing 22 structure. After Reince's initial complaint in September, 1985, 23 while the home was still under construction, the City ordered 24 Hassan to modify the structure (Exhibit "A") . Hassan immediately 25 instituted the City's changes and, thereafter, completed his home, 26 receiving a final Certificate of Occupancy from the City. He has 27 2 28 1 lived with his family in this home since completion. 2 No one at the City has ever contended that Hassan's permit 3 was issued in error. Rather, Mr. Palin stated there was confusion 4 at the City as to how to measure the height of the structure 5 because Hassan's lot was fairly unique in Huntington Beach due to 6 its sloped topography. The lot slopes downward from front to back 7 and right to left. 8 Although he had only used the Uniform Building Code 9 definition on height once before at 16672 Melville, Mr. Palin, Mr. 10 Godfrey, and Mr. Martinez determined it was appropriately applied 11 to Hassan's home because the City's own Zoning Code did not 12 provide for a method of measuring the height of a home that was 13 not on level ground. If the Zoning Code were applied, the house 14 would be 30 feet high in front, but not in back because the lot is 15 at different levels. The Uniform Building Code provided a method 16 for measuring height of an entire structure from an objectively 17 set point. The Uniform Building Code as used in this case by Mr. 18 Palin, Mr. Godfrey, and Mr. Martinez, was incapable of 19 manipulation so as to favor either Reince or Hassan. Hassan's 20 home is presently 30 feet high using the U.B.C. measurement. 21 Notwithstanding the City's decision, including a vote by the 22 Huntington Beach . City Council to allow Hassan to complete 23 construction on his home in its present form, Reince sued the City 24 of Huntington Beach in Orange County Superior Court. Reince 25 attempted to force the city, through court intervention, to pay 26 him damages and tear . down Hassan's home. Reince failed to 27 3 28 1 convince the court of the merit in his .position. However, Reince 2 chose to appeal Judge Turner's decision. On April 19, 1991, the 3 Appellate Court of the State of California reversed the trial 4 court and set forth its Order to the City of Huntington Beach as 5 follows: 6 "Because the Hassan design was in violation of the zoning code and Reince threatened 7 suit, the city was 'required to exercise discretion' . (Riggs v. City of Oxnard. 8 supra, 154 Cal.App. 3d 526, 531. ) It was empowered to resolve the issue by ordering 9 the removal of the offending portion of the Hassan residence or other measures. 10 It could have entertained a request for a variance. 11 we remain unconvinced any action was ever 12 taken by the council. For this reason, and because the council must be allowed latitude 13 in monitoring the city's affairs, we feel official resolution of this matter must 14 first be made by that body. 15 The judgment is reversed. The trial court shall enter an order directing the Huntington 16 Beach City Council to order the city attorney to proceed with suit to abate Hassan's 17 violation of the zoning code, unless a timely request for a variance by Hassan is granted. 18 The council should be cautioned that findings are necessary to justify the special circum- 19 stances required for a variance. 20 (Gov. Code, § 65906; Topanga Assn. for a Scenic Community v. County of Los Angeles 21 (1974] 11 Cal. 3d 506, 517) 22 The entire Appellate Court Opinion is attached hereto as Exhibit 23 "B" . The California Supreme Court never heard this case nor did 24 it render an -opinion. 25 As you can see from the Order of the Court of Appeal, the 20 City Council maintains its discretionary functions in this case. 27 4 28 i 1 As such, the City Council may approve a variance for Hassan 2 thereby concluding this entire matter, provided the approval is 3 based on a finding of "special circumstances" as more fully 4 discussed below. 5 6 REINCE'S ARGONENTS FOR DESTROYING HASSAN'S HONE 7 8 1. Reince's Principal Complaint is that Hassan's home Blocks 9 his View. 10 The City Attorney can confirm that Reince has no legal right 11 to a view, nor does he have a view easement. The courts have 12 firmly declined Reince on this theory of alleged hardship. 13 However, if one were to consider this to be a factor in 14 deciding whether to issue Hassan the subject variance, other 15 factors need be considered. First, the house located at 4481 Los 16 Patos, and immediately next door to Hassan, almost entirely blocks 17 Reince's view of Hassan's home (Exhibit "C") . The lot located 18 next to Reince, located at 4491 Los Patos will begin construction 19 of a new single family residence in Spring, 1992, that will 20 entirely block Reince's view of Hassan's home, and then some 21 (Exhibit "D") . This property is owned by George Armstrong. 22 In fact, Mr. Armstrong may actually be Reince's true target 23 in this dispute. Reince told Hassan that a victory over Hassan 24 will insure a future victory over Armstrong. This, coupled with 25 Reince's apparent hatred of Arab-Americans provides the motivating 26 force behind Reince's willingness to expend hundreds of thousands 27 5 28 1 of dollars of his own money to have Hassan's home torn down. 2 3 2. Reince Asserts that there was Fraud. Bribery. and/or 4 Payoffs within the City which resulted in Hassan's obtaining his 5 Building Permits and Certificate of Occupancy. 6 7 This is Reince's most outrageous claim. Interestingly, 8 during six years of bitterly fought litigation, Reince has never 9 made such an allegation. This allegation was first uttered at the 10 Planning Commission hearing on November 5, 1991. If his charges 11 have any basis in fact, then why has he never mentioned this 12 before? 13 Reince's assertions of wrong doing are offensive to the 14 entire City and its citizenry. It shows that nothing is beneath 15 Reince and what he will do to have Hassan's home torn down. He 16 has, without any apparent evidence,viciously attacked the 17 reputations of Mr. Palin, Mr. Godfrey, Mr. Martinez, the entire 18 Planning Department, and the City Council itself. But where is 19 the evidence to support his malicious charges? 20 This contention should not be considered in favor of Reince 21 when deciding whether Hassan should receive his variance. 22 23 3 . Reince Believes the Hassan Home is Unattractive 24 25 It has been said that beauty is in the eye of the beholder. 26 However, the fallacy of Reince's contention that the top nine feet 27 6 28 1 of Hassan's home should be torn off is irreconcilable with his 2 contention that the home is unattractive and looks like the "Taj 3 Majal" . Even if Hassan's home were torn down, there is nothing to 4 prevent him from building a shorter version of the same house in 5 perfect compliance with all applicable codes, albeit at a cost 6 estimated to be $500, 000. 00. 7 This contention is weak, at best, and shows Reince's obvious 8 desperation. Clearly, this is not something that should be 9 considered in deciding the variance. 10 11 4 . Because of the Mass of Hassan's Home, the Noise Factor in 12 the Neighborhood is substantially increased. 13 14 At substantial cost, Hassan commissioned Acoustical Impacts 15 International to perform a study as to whether this allegation had 16 any merit. In it's report (Exhibit "E") , Acoustical Impacts 17 International clearly states that this allegation has no merit. 18 19 5. Reince Contends that Hassan's Application for a Variance 20 is Untimely. 21 This is an argument that defies all logic. The Court of 22 Appeal issued its Ruling on April 15, 1991. Thereafter, Hassan 23 requested the Court to review its decision. Within five (5) weeks 24 of the Court finalizing its Ruling, Hassan had timely applied for 25 his variance. 26 Any contention by. Reince that the application for a variance 27 28 1 should have been made in 1985 is in contravention of the existing 2 facts. Hassan asked the City in 1985 if he should apply for a 3 variance once Reince began his complaining. However, Hassan was 4 told by the City he did not need a height variance because his 5 house complied with the City's code requirements. 6 This issue is, in fact, a non-issue and another of Reince's 7 "red herrings" . 8 9 B. 10 11 THE APPLICABLE LAW SUPPORTS THE ISSUANCE OF 12 A HEIGHT VARIANCE TO HASSAN 13 14 Variances are methods by which a property owner may seek 15 relief from the strict terms of a comprehensive zoning ordinance. 16 A variance is a permit issued to a landowner by an 17 administrative agency (Zoning Administrator, Board of Zoning 18 Adjustment, Planning Commission or the City Council acting as an 19 administrative agency) to construct a structure or carry on an 20 activity not otherwise permitted under the zoning regulations. 21 The statutory justification for a variance is that the owner would 22 otherwise suffer unique hardship under the general zoning 23 regulations. (Govt. Code § 65906] 24 Variances sanction deviations from regulations applicable to 25 such physical standards as lot sizes, building height, floor area 26 ratios for buildings,off-street parking requirements, and similar 27 8 28 1 issues. The concept is not that the basic zoning provision is 2 being changed, but that the property owner is allowed to use his 3 property in a manner basically consistent with the established 4 regulations with such minor variations as will place him in parity 5 with other property owners in the same zone. Variances are, in G effect, constitutional safety valves to permit administrative 7 adjustments when application of a general regulation would be 8 confiscatory or produce unique hardship. 9 A case which is directly on point to Mr. Hassan's situation 10 is Anderson v. City of La Mesa, (1981) 118 CA 3d 657, 173 CR 572. 11 In Anderson, supra, the zoning ordinance required a five foot side 12 yard, and the city issued a building permit showing a dwelling 13 with a seven-foot side yard. When the owner applied for final 14 inspection, the city refused occupancy claiming that a specific 15 plan ordinance required ten-foot side yards. Compliance with the 16 side yard requirement would have cost more than $6, 000. When the 17 city denied a variance, the owner sought mandate to complete the 18 granting of a variance and an occupancy permit. Affirming the 19 trial court's decision, the court of appeal held that the city was 20 estopped from denying a variance. The court held that the owner 21 was entitled to a variance due to the owner's justified reliance 22 on the building permit, the building inspector's previous failure 23 to object, the sum of money required to comply with the specific 24 plan ordinance, and the fact that no injury would occur to 25 adjacent landowners from the owner's non-compliance. 26 27 9 28 1 1. OBLIGATIONS OF THE CITY OF HUNTINGTON BEACH 2 IN DETERMINING WHETHER TO ISSUE THE SUBJECT VARIANCE. 3 4 The Court of Appeal has referenced in its directions to the 5 City of Huntington Beach a California Supreme Court decision 6 entitled Topanga Assn. for a Scenic Community v. County of Los 7 Angeles, 11 Cal. 3d 506 (1974) , and Government Code S 65906. 8 Pursuant to Topanga and Government Code S 65906 the City must: 9 1. Utilise a framework for making principal decisions that preserve the integrity 10 of the administrative process (the City Council forum satisfies this request) ; 11 2. Make a reasoned orderly analysis of the 12 application and available evidence there- by avoiding random leaps from evidence . to 13 conclusion (the staff report analysis and findings satisfies this request) ; 14 3 . Serve a public relations function by en- 15 suring that the administrative decision- making process is careful, reasoned, and 16 equitable (the public council hearing and the staff report process and analysis 17 satisfy this requirement) ; 18 4 . Clearly define and explain the decision, and basis therefore, so as to enable the 19 parties to determine whether, and on what basis, they might seek judicial 20 review and remedy (the staff report pro- vides this information if the Council 21 follows the recommendations therein. Otherwise, the City Council must specifi- 22 cally explain each and every basis for its decision, together with the evidence relied 23 upon and support thereof) ; and 24 5. Apprise the reviewing court of the basis for the City Council's decision. 25 The applicable law goes on to state that there must be ample 26 evidence in the record to support the City Council's findings and 27 10 28 1 decision. This evidence can consist solely -of STAFF REPORTS. A 2 city may rely upon the opinion of its staff in reaching decisions 3 and the opinion of staff has been recognized as constituting 4 substantial evidence. Browning-Ferris Industries v. City Council, 5 181 Cal.App. 3d 852 (1986) . 6 As you are aware, the staff report recommends that the City 7 Council approve Hassan's height variance. The staff detailed its 8 findings, including the fact that there are other homes in the 9 neighborhood which exceed 30 feet in height and contain three 10 stories. The Hassan home would comply with the City Is zoning code 11 if it presently sat on a flat lot and, furthermore, the City 12 building officials issuing the permit had the right to use the 13 Uniform Building Code in place of the zoning code to determine 14 height. In other words, there exists substantial evidence to 15 support the issuance of the variance, but none to support not 16 issuing the variance. 17 18 2. LIABILITIES INCUMBENT UPON THE CITY OF HUNTINGTON 19 BEACH FOR ITS DECISION REGARDING THE REQUESTED VARIANCE. 20 21 A. If the City Council Approves the Requested Variance, 22 If the City Council approves Hassan's variance, Reince has no 23 legitimate legal recourse provided the City council follows the 24 obligations detailed above, and mandated by the California Courts. 25 In such a circumstance, a decision to approve the variance is 26 within the City's discretion and is solidly based on substantial 27 11 28 s. 1 evidence, which may only be the staff report alone. 2 Reince is simply another complaining citizen without any 3 evidentiary justification to his complaint. Furthermore, to grant 4 the variance will end this matter for all time. 5 6 B. If the City Council fails to Approve Hassan's Variance. 7 In what Mr. Hassan prays is the unlikely event that the City 8 Council votes not to grant him a variance, the City of Huntington 9 Beach shall have substantial monetary liability to Hassan and more 10 costly years of litigation. California law supports Hassan in ii this instance. 12 First, Hassan may file for his own Writ of Mandate against 13 the City for failing to grant the variance. Such a . suit would be 14 based on the doctrine of Equitable Estoppel. 15 16 C. 17 EQUITABLE ESTOPPEL 18 19 The doctrine of equitable estoppel is founded on concepts of 20 equity and fair dealing. It provides that a city may not deny the 21 existence of a state of facts if he intentionally led another to 22 believe a particular circumstance to be true and to rely upon such 23 belief to his detriment. Five elements must be found to justify 24 the use of estoppel. These elements are set forth in La Canada 25 Flintridge Development Corp. v. Department of Transportation, 166 26 Cal. App. 3d 206, 219 .(1985) as follows: 27 12 28 the party to be estopped must be apprised of the facts; 2 (2) he must intend that his conduct 3 shall be acted upon, or must so act that the party asserting the estoppel has a 4 right to believe it was so intended; 5 (3) the other party must be ignorant of the true state of facts; and 6 (4) he must rely upon the conduct to 7 to this injury. " (Driscoll v. City of Los Angeles, (1967) 67 Cal. 2d 297, 305 8 (61 Cal. Rptr. 6.61, 431 P.2d 245] ) . 9 The fifth element requires the plaintiff to demonstrate that the injury to his 10 personal interests if the government is not estopped exceeds the injury to the 11 pubic interest if the government is estopped. Thus an estoppel will not be 12 applied against the government if to do so would effectively nullify "a strong 13 rule of policy, adopted for the benefit of the public, . . . " (County of San 14 Diego v. Cal. Water, Etc. , Co. (1947) 30 Cal. 2d 817, 829-830. 15 Equitable estoppel may be applied against the government 16 where justice and right require it and "in the considered view of 17 a court of equity, the injustice which would result from a failure 18 to uphold an estoppel is of sufficient dimension to justify any 19 effect upon public interest or policy which would result from the 20 rising of an estoppel" City of Long Beach v. Mansell. 3 Cal. 3d 21 462, 496-497 (91 Cal. Rptr. 23, 476 P.2d 423) . 22 As a matter of common sense, a home builder should be able to 23 rely on the city division of land development to furnish accurate 24 information as well as valid building permits. These are among the 25 reasons for which the office was created and its agents employed. 26 It makes no sense to hold that a person may rely on the accuracy 27 13 28 1 of information provided by a city official and at the same time, 2 hold that such a person cannot rely on the accuracy of a building 3 permit issued by the same agency. 4 If a home builder cannot rely on an official building permit 5 issued by the city, there is little reason for requiring one, 6 unless it is viewed as merely another mechanism . for gathering 7 taxes. Logic tells us, however, that the issuance of a building 8 permit is an official city action by which approval is given a 9 builder to erect a structure of the type and at the place 10 approved. 11 In this case, the City of Huntington Beach is the only 12 governmental body empowered to grant or deny building permits. 13 Thus, Hassan was forced to obtain such permits from the City's 14 designated agency. In addition, Hassan was required to have 15 inspections by a city building inspector before construction could 16 proceed beyond the "foundation stage" and before occupation. 17 Hassan had no other choice. If Hassan was to rely on anyone, it 18 must be upon the City agency. 19 The issuance of the building permit inherently implies that 20 the issuing agent has verified that the proposed structure is in 21 compliance with applicable code provisions. Moreover, in this 22 case, the subsequent inspection and approval by the City inspector 23 reinforced Hassan's reliance on the validity of the building 24 permit. Attached hereto as Exhibit "A " is a true and correct 25 letter from the City of Huntington Beach. 26 Hassan dealt directly with the City through its agents. By 27 14 28 1 so doing, the City agents undertook a duty to use reasonable care 2 in performing that service. 3 Further, the permit and inspection requirements do not create 4 a duty of care applicable merely to the public in general. 5 Rather, they apply to. a .limited class of citizens, the builders. 6 When a member of that class justifiably relies on the accuracy of 7 the permit and inspection and subsequently -suffers an economic 8 loss due to the inaccuracy of the agents, the City has breached a 9 duty that demands redress. 10 "The liability of one who is under a public duty to give the information extends to 11 loss suffered by any of the class of persons for whose benefit the duty is created, in any 12 of the transactions in which it is intended to protect them. " 13 Restatement (Second) of Torts § 552 (3) at 127 14 (1977) . See also Wilber v. Western Properties, 22 Wash.App. 458, 463-64 15 16 The duty to provide accurate information should be no 17 different than the duty to issue a valid permit. 18 Hassan requested a building permit and an inspection from the 19 City. In responding to that request, the City had a duty to 20 Hassan to exercise reasonable care in issuing a permit. The duty 21 to issue a valid permit may be characterized as follows: 22 " (T]here is nothing discretionary about the 23 duty. The response is in the nature of a 24 'ministerial ' or 'operational ' function; one 25 of which each member of the public has a right 26 to expect will be made accurately. " 27 15 28 1 See Gordon v. Holt, 65 A.D.2d 344, 412 N.Y.S. 2 2d 534 (1979) 3 4 D. 5 THE CITY OF HUNTINGTON BEACH WOULD G BE LIABLE TO HASSAN FOR MONETARY DAMAGES. 7 8 The courts have strictly construed the broad immunity 9 provision of the Tort Claim Act and carved out exceptions to its 10 application. Despite the broad rule of immunity set forth in the 11 Tort Claim Act, Govt. Code § 910, etc. , the California Supreme 12 Court has adhered to the view that in governmental tort case, "the 13 rule is liability" and "immunity is the exception", and declared 14 that unless and to the extent that the Legislature has clearly 15 provided for immunity, the important societal goal of compensating 16 injured parties for damages caused by willful or negligent acts 17 must prevail. Ramos v. County of Madera (1971) 4 Cal.App. 3d 685, 18 692 , 94 Cal. Rptr. 421, 484 P.2d 93 . 19 The court refused to apply the doctrine of estoppel but 20 nonetheless awarded compensation as a result of official action in 21 People ex rel Dept of Pub. Works v. Ryan Outdoor Advertising. 22 Inc. (1974) 39 CA 3d 804, 114 CR 499. The Department of Public 23 Works ordered a sign owner to move his signs outside the highway 24 right-of-way. The department issued a permit for the new 25 placement under its practice of considering such involuntary moves 26 as maintenance rather _than new placement. The department later I 27 16 28 1 changed its guidelines, concluded that the movement was a new 2 placement, and ordered removal on the ground that placement within 3 660 feet of the highway without a validly issued permit 4 constituted a nuisance. The court held that the department was 5 not estopped from requiring removal. However, because 6 compensation would have been required for termination of the signs 7 had they not been new placements, the department was required to 8 pay compensation for their removal. The result is in the 9 tradition of cases holding that a government entity cannot command 10 abandonment of a nonconforming use and then claim that the right 11 to continue the use has been lost. 12 13 E. 14 CONCLUSION. 15 16 Based upon the foregoing facts and law, Mr. Hassan 17 respectfully submits the only reasonable and financially 18 responsible manner for the City Council to vote on this matter is 19 to GRANT the requested variance as to the height of Emad Ali 20 Hassan's existing six year old home. 21 Dated: January 21, 1992 22 BAILEY & SCHULTZ, A-.P.C. 23 24 B MARK C. BAIL 25 Attorneys Emad Ali Hassan 26 27 17 28 CITY OF HUNTINGTON BEACH P.O. BOX 190 CALIFORNIA 92648 DEPARTMENT OF DEVELOPMENT SERVICES BUILDING DIVISION 1714)536-5241 PLANNING DI.'. 'RCN 014)536-5271 ' December 13, 1985 Mr . Hassan 4471 Los Patos Huntington Beach, CA Dear Mr . Hassan : The Hasson residence located at 4471 Los Patos has been reviewed as to the overall height. _For the purpose of this height determination, the city will use the adopted definition within the 1982 Uniform Building Code to establish a datum plane. This datum plane will be an elevation of 37 feet within five feet of the front yard area between the existing garage and Los Patos St . The flat portion of the roofed area of the thrid story should be a maximum of thirty ( 30 ) feet in height . This will require the ' existing flat deck roof area to be lowered by one ( 1 ) foot eight ( 8 ) inches to comply with the maximum code provision of thirty ( 30 ) feet in height for a single family residential dwelling. The city will allow this modification to take place based upon the review and approval of revised plans . Construction may continue on all other port- ions of the structure . Should you wish additional clarification +i Ihi.s , do not hesitate to call Mr . Godfrey at 536-5271 . Cordially, Glen Godfrey Deputy Director Development Services JWP:GG: lp ( 3903d ) f ff 55��71� St7./7 CHAPTER 4 • Definitions and Abbreviations Section 408—GRADE Section 409--HABITABLE SPACE (Adjacent Ground Elevation) see•409. Sec. 408. HABITABLE.SPACE(ROOM)is a space in a structure for living. GRADE(Adjacent Ground Elevation)is the lowest point of eleva- sleeping,eating or cooking. Bathrooms,toilet compartments,closets, tion of the finished surface of the ground,paving or sidewalk within the halls, storage or utility space, and similar areas, are not considered area between the building and the property line or, when the property habitable space. line is more than 5 feet from the building,between the building and a line 5 feet from the building. Q■ We typically have houses constructed which contain a s unfinished basements or lower levels. Would these Q■ May a retaining wall be used for the purpose of raising basements or usable portions thereof be considered as habitable ■ the effective elevation of finished grade? space? ■ The use of a retaining wall to raise the elevation of the /� ■ If the space had closets,floor covering,electrical wiring n finished surface of the ground would he permissible, A■ and other facilities in place which make.lhe space usa- provided the outside face of the retaining wall is al least 5 feel from ble for living,sleeping,eating or cooking,then thespace would be ' the exterior wall line of the building, or at the properly line, if a considered habitable space. If the area or space has bare walls. lesser distance. floors and ceilings(which is the common ebriddiao in which most Likewise, the finish grade may be raised by the.use of built-up new homes are finished), we would not consider the space to be grade, provided the built-up areas are at least 5 feet wide. Case I habitable.The space most commonly is used for storage or utility. and Case 11 illustrate these two conditions. - • J D Z Section 409—HEIGHT OF BUILDING • Sec.409. \` s•o MiN. HEIGHT OF BUILDING is the vertical distance above a reference CL OR R.IF CLOSER datum measured to the highest point of the coping of a flat roof or to the i z deck line of a mansard roof or to the average height of the highest gable 7 of a pitched or hipped roof. The reference datum shall be selected by 9 either of the following,whichever yields a greater height of building: v t I. The elevation of the highest adjoining sidewalk or ground sur- face within a 5-foot horizontal distance of the exterior wall of the building when such sidewalk or ground surface is not more than 6 / 10 feet above lowest grade. m 41 2. An elevation 10 feet higher than the lowest grade when the 9 ASE sidewalk or ground surface described in Item 1 above is more than 10 feet above lowest grade. The height of a stepped or terraced building is the maximum height of any segment of the building. ■ Could you graphically illustrate how to locate the refer-*/ a ence datum mentioned in Section 409 and used for . 5.0�Mw.OR determining the height of a building? R IF CLOSER 5'•0-MIN.OR R.IF CLOSER A■ In the following drawings, Case I corresponds to Item • No. 1 under the definition for"height of building•while Case II relates to Item No. 2. I t i In both Cases I and 11,elevation B represents the highest ele%awin � I t I within 5 feet of the exterior wall of a building, and elevation A represents the lowest elevation within 5 feet of the exterior wall(it a building. CASE 11 When elevation A is less than 10 fee; helow elevation B, the datum from which to measure the height of a building is elevation B • and should be determined as indicated in C ise 1. When elevation A is more than 10 feet helrnv elevation B. a datum which is 10 feet above elevation A-s iilst determined. The height of the building is then measured from this last established elevation as indicated in Case 11. i � 1 __ � � .� `, I .\ , - � _k ` .. %, � - ,\ �r t Cyr /r �� i, '�, N �I �I J J ..........................................................................................2�!� 7 7 S2 SI W W = 2 5. DATUM B 5 M0AE THAN 10'� A LESS THAN 10' A CASEI CASED DETERMINATION OF BUILDING HEIGHT IN FEET J Z t Z O • G W Section 420—STORY In calculating the number of stories in a building, the ■ rode makes reference to the 'total perimeter" of the zSec.420. building.What would he the total perimeter for the hllhide dwell- STORY is that portion of a building included between the upper ing illustrated? Y surface ofany floor and the upper surface of the fluor next above,except that the topmost story shall be that portion of a building included ■ . The intent of the language"total perimeter" is to define between the upper surface of the topmost fluor and the ceiling or roof ■ the outer limits of any particular level under cunsidera m above. If the fimshed floor level directly above a usable or unused tion. Therefore, in the case depicted. the total perimeter for the �? under-floor space is more than 6 feet above grade as defined herein for lowest level would be bounded by the retaining%%all. the down- l0 T more than 50 percent of the total perimeter or is more than 12 feet above slope exterior wall and the east and west exterior w.11I,. I he dwell• grade as defined herein at any point,such usable or unused under-floor ing illustrated has two stories and basement for the down-dope space shall be considered as a story. segment. COURT OF APPEOWTH DIST, DIV. FILED 3 APP 1 4 1991 Deputy Clerk NOT TO BE PUBLISHED IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE CHARLES 0. REINCE, ) G007973 Plaintiff and Appellant, ) (Super.Ct.No. 48-17-04) ) V. ) O P I N I O N CITY OF HUNTINGTON BEACH, ) ) Defendant and Respondent. ) EMAD ALI HASSAN, ) Real Party in Interest. ) APPEAL from a judgment of the Superior Court of Orange County, James K. Turner, Judge. Reversed with directions. Drummy Garrett King & Harrison, Richard S. Ruben, Jeffrey M. Richard, Asaki & Carson and Richard C. Carson for Plaintiff and Appellant. Robert Sangster, Assistant City Attorney, for Defendant and Respondent. Reid, Schultz & Bailey, Bailey & Schultz, Mark C. Bailey and Robert Schultz for Real Part in Interest. 17 k Charles O. Reince appeals the denial of his request for a writ of mandate compelling the City of Huntington Beach to order Emad Ali Hassan to lower the height of his residence. We conclude the initial building permit was invalidly issued. Thus, the city council must order the city attorney to proceed with an action to bring the Hassan structure into compliance with the zoning code unless Hassan applies for, and is granted, a variance. I In 1978, Reince purchased an ocean view lot in Huntington Beach. He built his home with views extending over the existing roofs of the homes below him and those he anticipated would be built in the future. Thereafter, Hassan purchased a lot below Reince. With the aid of an architect, Don Hartfelder, and a contractor, Frank Mirjahangir, designs for a three-story home were prepared and presented to the city for a building permit in January 1985. Sergio Martinez, senior plan checker for Huntington Beach, raised the issue of the height of the building which appeared to exceed the 30-foot limitation, as defined in the zoning code. New drawings were submitted in May and were signed by the structural plan checker. Martinez, apparently still concerned with the elevation and overall height of the residence, conferred with his superior, Glen Godfrey, and the department director, James Palin. After several meetings, the plans were approved on the 23rd and a building permit issued to Mirjahangir. 2 Reince had noticed the home under construction, but not until September did he realize it appeared to extend beyond two stories and that it would obstruct his view. He measured the house himself, determining it was eight to nine feet over code. At the city building department, the counterperson pulled the Hassan plans and said, "Well, we have a problem here. " Through his attorney, Richard Carson, Reince lodged a complaint with the city. Godfrey agreed to check further. On September 30th, Reince, Carson, Martinez, Godfrey and Robert Sangster, assistant city attorney, met at the city offices. They discussed the zoning height requirements; Godfrey said he would "get back" to Reince "with examples of similarly situated situations. " He did not. Carson demanded cessation of construction. Palin, Martinez and Godfrey again reviewed the approved plans. By letter of October 9 to Hartfelder, the city requested changes in the plans to bring the residence into compliance with the city code.' A meeting was held on October 16 with Hassan's attorney, Richard Fine, about the necessary revisions. New plans were received on October 11. On November 5, Palin ordered work ' It stated, in pertinent part: "After a detailed examination of the drawings, Mr. Palin, and Mr. Godfrey, and I arrived at the conclusion that because of confusion in reading the drawings, the maximum building height required by our code was misinterpreted when the drawings were approved. The error must be rectified to bring the building into conformance. " When questioned, during a deposition, about the "confusion, " . Palin replied, "It did not take long in our review of it to make a determination that the permits had been issued in error, that improper dimensions had been used." 3 stopped on the property until he could meet with the architect; \. PP P P Y that meeting occurred on November 7. Revised plans were submitted on November 13 . At a city council meeting on the 18th, Reince spoke against the continued construction; the council ordered a "study" of the situation. Reince had two meetings with the city administrator. One, on December 5, was attended by Palin, Hassan and Hartfelder in an attempt to solve the problem. And, on December 91 Palin requested a legal opinion from the city attorney as to whether the zoning ordinance prevailed or whether the city could employ the height definition contained in the Uniform Building Code2 2 The zoning code provides: "The maximum building height shall not exceed thirty (30) feet, except as provided herein." Under a separate section, "Building height" is defined as "the vertical distance from the lowest elevation of the ground immediately adjacent to the building to the highest point of the roof. " The- code further provides: "Where, however, this code imposes a greater restriction of regulation upon buildings or structures, and the use of them, or the use of land or premises . . . than are imposed or required by other ordinances, rules or regulations, the provisions of this code shall govern. " The UBC, on the other hand (which the state housing authorities require cities to include) , was adopted in the building code "for the purpose of regulating" the construction of all buildings in the city "and repealing all ordinances and parts of ordinances in conflict herewith. " It provides: "Height of Building is the vertical distance above a reference datum measured to the highest point of the coping of a flat roof or to the deck line of a mansard roof or to the average height of the highest gable of a pitched or hipped roof. The reference datum shall be selected by either of the following, whichever yields a greater height of building: (1] 1. The elevation of the highest adjoining sidewalk or ground surface within a 5-foot horizontal distance of the exterior wall of the building when such sidewalk or ground surface is not more than 10 feet above lowest grade. [1) 2 . An elevation 10 feet higher than the lowest grade when the sidewalk or ground surface described in Item 1 above is more than 10 feet above lowest grade. (1] The height of a stepped or terraced building is the maximum height of any segment of the (continued. . . ) 4 (UBC) , adopted by reference in the city building code. Use of the latter could make a difference of several feet on sloped _terrain. The attorney's reply stated, "the regulations must be interpreted to best express the legislative intent. As is noted below we do not find that the regulations conflict." It continued, "The codes should be interpreted together to complement one another, and the U.B.C. definition is obviously better thought out, is more comprehensive in that it covers more of the possible variations of the terrain and topography than does the city ordinance and therefore should control. That is, the U.B.C. definition expands upon, explains and interprets the ordinance. . . . (F]ollowing the rule that each regulation must be given credence and weight, the better analysis is that there is no conflict and that the UBC calculation of 30 feet is correct. " In conclusion, "The single most controlling factor is what is called 'administrative interpretation. "' In any event, "once having taken a position by issuing -a permit, the city is in no position to red-tag the project or recall the permits . . . . " At trial, Palin testified he did not consider whether the UBC definition had been used for single family residences on other occasions. In fact, it had seldom, if ever, been employed. Palin then visited the site again, compared actual measurements with the plans, and determined the edifice was one foot eight inches higher than shown on the plans. By letter to 2 ( . . .continued) building. " 5 the architect, the city informed Hassan the UBC measurements would be used and he was in violation of the code, i.e. , one foot, eight inches over the 30-foot restriction. Hartfelder was requested to again revise the plans. Following two more submissions of revised plans, approval was given. Meanwhile, in mid-December, Reince was informed by phone of the decision to use the UBC measurement method. He objected, by letter, to the city council but received no response. In January 1986, the city council's staff report on the Hassan problem was submitted. At the February council meeting, Reince and his attorney again spoke during the open session in opposition to continued construction of the Hassan residence. Fine and Hassan defended the project. The council took no action. On February 19, Reince filed suit against, inter alia, Huntington Beach and Hassan, seeking (1) -an injunction, (2) a writ of mandamus to compel enforcement of the zoning code height limitation and abatement of Hassan's unlawful use in violation of that code, and (3) declaratory relief. A temporary restraining order was issued, with hearing set for March 11. The preliminary injunction was denied without prejudice. The minute order provides: "No showing of reasonable probability of success on the merits. " Reince insists further attempts to obtain an injunction "would have been useless, since work had essentially been 6 completed on the residence. " The declaratory relief action was voluntarily dismissed by Reince who concluded that "no valid or adequate remedy at law was available to him. " Nearly finished at that point, the Hassan home construction continued. Certificates of completion and occupancy were issued by the city. At a hearing in November 1988, evidence was presented on Reince's writ petition, his only remaining cause of action, which the court denied. Reince's expert stated only the zoning code measurements could be employed in this situation. It was his understanding the UBC height limitations were "concerned with fire protection and was a function of the size and height of a building, the ability to safely exit the building in fire emergencies, the ability to rescue. " While a building official for the City of Huntington Beach from 1972 to 1978, he was unaware of any use of the UBC height definition being applied to decide if a zoning provision had been complied with. He had not, however, been responsible for applying the planning and zoning codes to Huntington Beach projects. Nor had he remained conversant with adaptations of the codes since that time. Hartfelder, as well, was qualified as an expert in the building field. He had served on the architectural review board for Huntington Beach and was presently sitting on the appeals board. He testified he used the UBC when preparing the original plans as "a methodology to show how the 30-foot height should be measured. " During his meetings with Palin and Martinez, they 7 discussed both codes. He eventually lowered the roof by one foot and eight inches to fully conform with the UBC method. Although he had designed many homes in the area, he had not previously used the UBC. That, however, was because the others were built on flat ground, negating any need for an alternative measurement. Hartfelder stated the majority of Huntington Beach is on flat ground, but the Hassan lot sloped downward approximately nine feet from the street: "This is unique to that area. " It was for this reason he employed the UBC method of measuring height. Palin, in a deposition, admitted the UBC could and should be used where there is severe sloping. The court found the original building permit was valid, using the UBC "as a methodology in conjunction with the City's Zoning Code definition of height" due to the topography of the site. The UBC's "height definition and the Zoning Code definition are not in conflict with each other as the U.B.C. is merely a 'methodology' or guide' to the Zoning Code definition for use on severe topographical features. " II Reince contends city officials failed to perform their required duty in allowing completion of the Hassan residence through the expedient of sanctioning the UBC measurement procedure.3 He insists the city council had no discretion to do 3 Reince insists principles of statutory construction preclude application of the UBC method of measurement. First, he states the more specific regulation should control, which he asserts is the zoning code description of height. However, the (continued. . . ) 8 anything other than order abatement of the nuisance. The zoning code forbids erection of buildings in excess of the stated height limit. Other sections charge those issuing building permits with the responsibility for enforcement of the code and declare any permit issued in conflict with the code to be null and void. Moreover, any building which is constructed but is not in compliance with the code is "unlawful and a public nuisance, and the City Attorney shall, upon the order of the City Council, immediately commence action or proceedings for the abatement and removal" of the offending structure. (Art. 902, S 9022 . ) The court found the original building permit was issued using the UBC definition and was valid. It further stated the UBC had been used "on numerous occasions. " However, the evidence is that all personnel involved felt "the permits had been issued in error. " Only months later, when the residence was virtually finished, was the more lenient UBC definition accepted, in an 3 ( . . .continued) UBC description is much more detailed, taking into account as it does varying degrees of slope on a lot. Second, Reince asserts the more recently adopted regulation should control: "In light of the fact that the UBC in its entirety was adopted by mere reference for many years, the Zoning Code definition which was adopted in 1975 was more recently adopted." However, both have been readopted and renumbered on several occasions, diluting the thrust of this argument. Third, Reince points to the city attorney's written opinion on the matter, which stated the most important factor was past administrative interpretation. He states Palin "completely ignored this factor in deciding to apply the UBC." Past history does indicate the zoning code method was most consistently, if not always, used. 9 attempt to retroactively validate the original permit. More- over, the uncontradicted evidence shows the UBC had been used only one or two previous times, and never for a residence. The court also concluded the city was estopped to enforce its zoning code because Hassan had obtained a "vested right" to build based on issuance of the valid permit. But the permit was invalid at its inception; and "the City cannot be estopped to deny the validity of a permit or other representations respecting the use of property issued or made in violation of the express provisions of a zoning ordinance." (Pettitt v. City of Fresno (1973) 34 Cal.App.3d 813 , 819. ) Additionally, we note the height-measurement provisions of the building code and zoning code are decidedly at odds. The latter has a flat outside limit of 30 feet. As a consequence, it is difficult to imagine, absent an amendment to the zoning code incorporating the building code definition in prescribed circumstances, how they can be deemed "not in conflict with each other. " This is particularly true because "(a) lthough building codes and zoning regulations are traceable to the police power, building codes are designed to protect the public welfare from a wholly different standpoint than that of zoning laws. Building codes deal with the safety and structure of buildings; they regulate details of construction, use of materials, and electrical, plumbing and heating specifications, all contingent I upon the type of occupancy. The purpose of the State Housing Law I is to provide for statewide uniformity in such regulations. 10 I I Zoning ordinances, on the other hand, regulate use of buildings, structures and lands as between various purposes; the location, height, number of stories and structures; the size of lots and open space requirements, etc." (Taschner v. City Council (1973) 31 Cal.App.3d 48, 60, emphasis added. ) Riggs v. City of Oxnard (1984) 154 Cal.App.3d 526 is instructive. There, the appellant operated his transmission business under a five-year variance granted to him by the city in 1968. In 1982, the city suddenly announced the original variance was questionable and now could not be renewed; appellant relocated. Meanwhile, in that same year, Oxnard Transmission was erroneously given zoning clearance. Appellant complained and Oxnard Transmission threatened litigation against the city if it took any action. In response, the city deferred prosecution of Oxnard Transmission while examining the possibility of amending the code to allow transmission activity in the area under special permit. The amendment passed; Oxnard Transmission could continue its operation only if it applied for and received a special permit. "The respondent city is not . . . mandated to [order the city attorney to prosecute] for a zoning violation, but may logically resolve a violation in other ways, as it did in this case. " (Id. at p. 530. ) Because the Hassan design was in violation of the zoning code and Reince threatened suit, the city was "required to exercise discretion. " (Riggs v. City of Oxnard, supra, 154 Cal.App.3d 526, 531. ) It was empowered to resolve the issue by 11 ordering the removal of the offending portion of the Hassan residence or other measures. It could have entertained a request for a variance. We remain unconvinced any action was ever taken by the council. For this reason, and because the council must be allowed latitude in monitoring the city's affairs, we feel official resolution of this matter must first be made by that body. The judgment is reversed. The trial court shall enter an order directing the Huntington Beach City Council to order the city attorney to proceed with suit to abate Hassan's violation of the zoning code, unless a timely request for a variance by Hassan is granted. The council should be cautioned that findings are necessary to justify the special circumstances required for a variance. (Gov. Code, S 65906; Topanga Assn. for a scenic r Community v. County of Los Angeles (1974) it Cal.3d 506, 517. ) i SONENSHINE, ACTING P. J. WE CONCUR: CROSBY, J. MOORE, J. 12 4471 LCM rarm RCIMPCR � P[1'Q IRS1ooRC n.77-7 --------------- ------ ' 440 tm ram raieaa eumploEL s:s .w xer to tcRQ.a�. _...� EL MA FL OerT in u i - ----a---„�----------- r- --------�' -----------�-_j- - -- ------------------------- LOS PATOS AVE. m . r� a EL eaO• 1 EL. ea.a ED Q 0 U0 mD r El. 4T.A+ I I v EL Wr EL 3O. 4481 LOS PAT+OS RMENCE OnJft) i471 LOS PAM$ RESW CE +---•-�-IROICATES MIRE SIUCTURE MARINA VIEW PLACE ' � I •`� f `k�t;t t �if_fLtii � a 0� �;r t lllil { 1�1 i OT I-al T2--[o!w .l_�✓. -_ .� * 4 �•r_--- k__:se Mr. Hassan's Residence 4461 Los Patos Drive Huntington Beach This view of Mr. Reince's house was taken from inside the home under construction that is situated between Mr. Reince's and Mr. Hassan's houses. The camera's position is about 10 feet below the roofline of this new home; as you can see from this angle, most of Mr. Reince's view is blocked by this new home under construction. The wood and machinery in the foreground is sitting on a pad where another home will be. This second new home will be two storeys plus a roof line; it will almost completely obliterate Mr. Reince's view. ACOUSTICAL IMPACTS INTERNATIONAL P.O. Box 7426 - Newport Beach, CA 92658 Telephone (714) 549-4092 - Fax (714) 549-9423 L1/1581 November 18, 1991 Mr. Ali Hassan 4461 Los Patos Huntington Beach, CA, 92649 Dear Mr. Hassan: At your request, Acoustical Impacts International (All), visited your property-residence located at 4461 Los Patos, in the City of Huntington Beach California to analyze the noise reflections from your house on residences across Warner Avenue. The results of our research show that is impossible that your house would increase the noise at the residence across Warner Avenue. Simple acoustical ray tracing demonstrates your building was fortuitously placed to offer protection to the mentioned residences as compared to what could have occurred with other building arrangements. The plan view shows all sound rays are being deflected away from the residences across Warner, not back to it, (Refer to Exhibit 1). Please note, sound only travels along straight lines which reflects the same as light rays mirroring from planar surfaces with the angle of reflection being equal to the angle of incidence, where the angles a, and % are measured from the normal to the plane of reflection, (i.e., building surface). Refer to Exhibit 2. U/1581 2 Further examination of the sectional view shows that the sound rays are also being reflected upward and away from the residence across Warner Avenue. Same explanation for sound reflection from the former paragraph applies here. Refer to exhibit 3. For all these reasons we can determine that there is no substance for any claim of this nature. If you have any further question, please call us. Sincerely Ciro Elgue General Manager Acoustical Consultant Exhibits L1/1581 Exhibit 1 Warner Avenue Hassan's Residence Sound L1/1581 Exhibit 2 Incident ray ; Reflected ray \ocl a2 L1/1581 Exhibit 3 Hassan's Residence Warner Avenue —► Sound We the undersigned residence of Huntington Beach believe that the home of Mr. Ali Hassan located at 4461 Los Patos in the tity of Huntington Beach is a Jefinite asset to both the neighborhood and the community. he also believe that the height of this residence is not a negative factor in any way. This residence sits at the foot of Los Patos [fill with homes on both sides of it having no negative effect on the neighborhood whatsoever, on the contrary this home is an asset to its neighborhood, the community and to the city of Huntington Beach. NANIF ADDRESS 7 4. �•�,,7 ryf,I� _1 / J ,il�t�,-f-rT ��'�/��11 �/I�7._.h- (U/n!-!-(i- �Li� �`I � ( L. u aD ,T Ott 6. 14 12. t3y d y< 14 . Cyr;5e�dc�, F.. �/ 61 1 o S Pa o s A,. dUn4; no�'o is. >�" �r 1Ls sl�v� Vie Lds i°A-tos 16. 11 ��L? SSQ�.►. C(l/(o� �-OS P�LU [.1�� .-� Fias=c�-�Df� ���� 17. ) ' (o �-O 1 p�4 L.�hS ��1.����1 r+ ►. r '1 n 916�f 18. 19C_/ AkA mil `G 20. V V w-• • r r. en�•�.I V. OWNERSHIP LISTING SERVICE 917 Glenneyre Street, Suite 7 Laguna Beach, California 92651 714/494-6105 FAX: 714/494-7418 NAMF. ADDRESS DATE OF PORCEASE Charles & Susan Reince 17211 Marina View P1 04-27-83 Carolyn Young 17201 Marina View P1 10-19-89 Michael & Debra Tebrich 17202 Marina View P1 03-14-83 Susan & William Winn 17192 Marina View Pl 09-04-75 Floyd & Naomi George 17212 Marina View Pl 08-21-78 Gary & Judith Potter 17232 Marina View P1 07-25-74 Sandy Halpin 17182 Marina View P1 03-29-72 Rr!:ert Conway 17172 Marina View P1 04-14-67 John & Deborah Westermeyer 17142 Marina View P1 07-22-87 P.S. Cheng 17181 Marina View P1 04-24-90 Donna & Peter Clark 17121 Sandra Lee St 01-19-76 ;,oseph. Glenon- -__ -_ .- .1.7141, Sandra_Lee St. 1975. _..._.._. Elma & Donald Walter 17131 Sandra Lee St 06-03-81 Donald & Donna Klein 17186 Courtney Ln 07-25-86 F-nita Scrofani 17206 Courtney Ln 10-29-87 Jeanette & Ernest Ramirez 17192 Courtney Ln 08-05-91 " lliam Sosnowski 17198 Courtney Ln 01-09-76 Carol Wood 17226 Courtney Ln 06-05-86 ,joecte Koelsch 17214 Courtney Ln 07-13-90 Robert Lujan 17092 Courtney Ln 01-25-82 John & Pamela Cronn 17232 Courtney Ln 02-07-90 Robert O'Neill 17150 Courtney Ln 10-06-89 Dana Barton 17170 Courtney Ln 05-21-85 G PAGE 2 Ken Spiker 17130 Courtney Ln 03-13-90 Harold & Doris Lynn 17122 Courtney Ln 04-01-86 Jeffrev Statton 17072 Courtney Ln 12-19-83 Matt & Maureen Mitchell 17042 Courtney Ln 08-03-87 Tom Dalton 17032 Courtney Ln 08-07-73 Geraldine Bennett 17164 Courtney Ln 08-09-71 Katherine Kramer 17041 Courtney Ln 01-11-89 William Matheus 17091 Courtney Ln 01-08-90 Bi.11 Morrison 17121 Courtney Ln 03-27-89 Max ( Can't read last name) 17101 Courtney Ln 08-20-87 RENTER P P Klein 16971 Courtney Ln 05-21-85 RENTER Donna George 17178 Courtney Ln 06-06-91 Pat Roseberry 17051 Courtney Ln 10-10-89 Celeste Whipple 16991 Courtney Ln . _07-08-83 Mary Poy 17022 Courtney Ln 01-05-89 Lisa Shafer 17181. West Westport Dr p _ . ..... 1I-18-8 Dianna Haddock 17152 Westport Dr 05-01-87 Narmanjean & Eric Janssen 17087 Westport Dr sold home 06-18-91 to Norma Gibbs she didn't sion petition Mary Ann Thaxton 17141 •Westport Dr 07-11-72 Douglas Engum 17101 Westport Dr 1975 Anne La Conde 17062 Westport Dr 05-31-79 John Erickson 17072 Westport Dr 01-14-82 Mr Kuraoka 17122 Westport Dr 03-13-90 S Schoenfeld 17105 Westport Dr 02-05-86 John Kerkes 17111 Westport Dr 09-28-87 off map PAGt 3 Sally s Larry Price and 17191 Marina View Pl 02-02-87 Lisa S Daniel Denny R.E. 6 Marilyn Willsie 17187 Roundhill Dr 04-01-76 Catherine Steuber 17071 Courtney Ln 11-03-78 Terry Nielsen 17001 Courtney Ln 10-07-86 Michael Cavallo (renter) 17220 Courtney Ln 1975 Kenneth Jackson 17111 Westport Dr 09-25-80 Stuart Shorr 17179 Roundhill Dr 10-26-84 Diane Skelton 17131 Roundhill Dr 02-25-91 Sandy Nincum(renter) 17171 Roundhill Dr 10-13-77 Joseph Falcon 17155 Roundhill Dr 12-17-85 Gail Stoter 17147 Roundhill Dr 08-02-89 Jack Smiley 17139 Roundhill Dr 05-19-89 George 6 Carole Garrett 17163 Roundhill Dr 02-08-72 Theodore Patten - 17127 Roundhill Dr =- 11-17-82 Thomas Skelton --.-- _. _1.7131.Roundhill..Dr._.-.. ._•._.. ._... . _. ..02-25-91. Jay Jeffries 17161 Westport Dr 04-10-84 Loc Nguyyen 17132 Westport Dr 02-21-91 Robert 6 Christina Yates 17112 Westport Dr 07-15-76 Theresa Winfrey 17092 Westport Dr 10-09-81 Ron Stiles 17021 Malta Cir 10-21-76 Chris Libs (renter) 17001 Malta Cir 08-21-73 Samantha Good 17051 Malta Cir 10-18-85 Robert Mc Gee 16991 Malta Cir` 11-14-86 R C Crooks 17101 Malta Cir 12-05-75 J 0 Leverenz 17071 Malta Cir 03-27-89 Peter & June Economakos 17031 Malta Cir 06-26-76 PAGE 4 ' Gladys & J L Schwartz 17188 Edgewater Ln 02-20-91 Edr:a=d & Barbara Devlin 17156 Edgewater Ln 1975 John Szot 17180 Edgewater Ln 05-31-91 Anne Woodward 17124 Edgewater Ln 09-06-78 Glayds Klarin 17164 Edgewater Ln 05-13-88 Can't read name 17172 Edgewater Ln 05-30-75 Daniel Martin Jr 17164 Edgewater. Ln 05-13-88 Jeanette & Terry Stelzer 17148 Edgewater Ln 12-29-86 i �Y a: Z�Q nt N W ; IL o w¢ i Zd J /. ..' ' �{ r1'K J tl 4�,_l t �a .R � �'�Nr`•ot-, crZ.[cY , `7 �/"iy� P 5 _N'S({i i lannit1�;;z � C�sfi' "� ."Yi�l`l+"�"' 1�,� f�3' �\••l�tr-�I 2•t. 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Phone : 714-968-7287 JHa 21 N `92 January 20 , 1992 Mayor Jim Silva and Members of the City Council City of Huntington Beach is 2000 Main Street Huntington Beach , CA 92648 Dear Mayor Silva and Councilmembers , A4-- Regarding : Renewal of the entertainment license for Out Of Bounds , located on the southeast corner of Atlanta and Brookhurst , Huntington Beach . As a concerned citizen and neighbor of the Out Of Bounds bar , I wish to express my opinion regarding the renewal of their entertainment license . The business has , in my opinion , always had a negative impact on this area and is not compatible with a residential neighborhood . Historically , the establishment was approved as a 7-Eleven and was part of a small corner office complex . Over the years , there has been a stream of restaurants that have been reasonably compatible with the neighborhood , but there has been continuous and increasing problems since liquor and later live entertainment were introduced at Out Of Bounds . There is almost an inverse correlation . . . . . . the better their businss , the greater the negative impact on the neighborhood . Some of the problems that have resulted in a negative impact j include: 1 . Loud noises , squealing brakes , and revving up of car and motorcycle motors at closing time . 2 . Helicopters flying overhead , lights scanning the neighborhood , sirens , and police giving directions over loud speakers to people in the area . This happens too often and late at night . 3 . Patrons often walk home , leaving the establishment drunk , carrying on the conversations or fights as they walk past our home . 4 . Patrons have on occasion pulled their cars in behind the Brookhurst Street wall south of Sprit to continue partying , leaving trash , beer cans , etc . in the street . Some have been seen urinating on the wall . S . There has been an influx of people with questionable standards from all over the county , especially on the weekends . 6 . Pedestrians and bicyclists face serious safety hazards as they cross both the Atlanta and Brookhurst entrance . Day or night , people have been seen leaving the bar under the influence . 7 . The police records should indicate a dramatic increase in crime and accidents in the area , specifically the corner of Atlanta and Brookhurst . I have heard gun shots ( from one block away ) , 'and there have been many "disturbing the peace" calls . Car accidents , late at night , are almost "routine" . Last year there was a child kidnapped from Key Market ( across the street ) , and over the holidays . the same market was robbed by the "Jingle Bell " thieves . The same night the cleaners in the complex with the Out Of Bounds was burgularized . Page 2: Out Of Bounds Cont . As you review this application for renewal of the entertainment license for Out Of Bounds Bar , please examine the records carefully and consider the implications of your decision on the Huntington Beach citizens who live in the surrounding neighborhoods . This establishment limits the freedom of our children to move safely around the area . Bicyclist coming off or going on the bike trail are faced with safety considerations . Neighbors are concerned regarding increasing crime , traffic hazards and the type of clients that are attracted by the entertainment . . Thank you in advance for your consideration of this issue . Sincerely , Shirley Carey Concerned Citizen 146 A DRUMMY KING b. WHITE .- A PROFESSIONAL CORPORATION ATTORNEYS AT LAW AREA CODE 714 A T[PHlN C.DRUMMY .L 3200 PARK CENTER DRIVE, TENTH FLOOR TELEPHONE 050-1800 JOHN P.KING,JR. 'C'OSTA MESA, CALIFORNIA 92626 - ALAN 1.WHIT! TELECOPIER (714) 050-4500 DIRECT ALL MAIL TO: P.O. BOX 5000 CHARLES W.PARRET MICHAEL. G.JOEROER COSTA MESA, CALIFORNIA 92628 IN REPLY REFER TO 5304 . 001 JEFFREY M.RICHARO KEVIN M.TRIPI LISA A.STEPANSKI GREGORY E.ROBINSON MARK R.BECKINOTON _ DOUOLAS F.RUBINO LAWRENCE H.SUREK GEOFFREYS.►AYNE - KENNETH W.CURTIS ^LAN A.GREENBERG' June 30, 1993 ROBERT M.OEFEO MARC K.CALLAHAN Robert C. Sangster, Esq. 2000 Main Street Post Office Box 2740 Huntington Beach, California 92647 Mark C. Bailey, Esq. Bailey & Schultz, A.P.C. 19800 MacArthur Boulevard, Suite 1450 Irvine, California 92715 Re: Hassan vs. Huntington Beach; Administrative record for hearing on mandamus petition Dear Messrs. Sangster and Bailey: I have reviewed the copy of the administrative record which was provided to my co-counsel at the last status conference. It appears to have several omissions. First, it is my understanding that the City videotapes its Council sessions. The videotape of the cg�� hearing on the variance application should probably be part of the administrative record. Secondly, the record contains no minutes of the City Council meeting of January 21, 1992 . Those minutes would reflect the presentations made by various members of the public, including the parties to this case, for purposes of the Council ' s consideration. The minutes should be part of the record. My file also reflects several other items which are not included in the record but which I believe are part of the City's file. First, there was a Notice of Public Hearing pertaining to the JMR\COR\.35382.] i v Robert C. Sangster, Esq. Mark C. Bailey, Esq. June 30, 1993 Page 2 --JanU6ff-=21 ==1992�C6uncil- session. There is also an agenda===of= the: ,, C tya-Codncih-meeting;: for_:January 21;--1992' which includes a brief description of the appeal by Mr. Hassan of the planning commission's denial of his applications including new staff recommendations at the City council stage. - I also ha_yeR,al,copy of_-._-a=.'_'Mayor.!s- Memo.!--_dated. November;:7_,, ? /.-19 91:. from' Peter- Green'to' Mike-Uberuaga;--which+requests that 4 copy of the building code which was in effect at the time and a copy of the UBC be part of the Council package. I do not see the==memo- or- the- referenced codes in the administrative record. There were also certain photographs presented to the planning commission and to the Council. If such photographs were p considered by the Council, shouldn't they be submitted to the Court as part of the administrative record? Once we have resolved whether the administrative record is complete, then we can circulate the stipulation concerning the record as suggested by the Court. I would appreciate your prompt attention to determining whether these items should be made part of the record or whether we have a disagreement over the scope of the administrative record. erely yours, �F.d1EY" M. RICHARD of RUMMY KING & WHITE JMR:cyn cc: Richard C. Carson, Esq. 7/3 � 93 7 1MR\COR135382.1 J, CITY OF HUNTINGTON BEACH 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK CONNIE BROCKWAY CITY CLERK INDEX OF RECORDS ON FILE IN THE CITY CLERK'S OFFICE REGARDING WRIT OF MANDATE 1. Letter with attachments from CITY OF HUNTINGTON BEACH to HASSAN dated February 21, 1992. 2 . Request for City Council action dated February 18, 1992 . 3 . Request for City Council action dated January 21, 1992 including attachments 2 through 15 as follows : 2 . Alternative Findings for Denial (Planning Commission Recommendation) 3 . Alternative Findings and Conditions for Approval (applicant' s request-includes third floor addition) 4 . Draft Minutes from November 5, 1991 Planning Commission Meeting 5 . Applicant' s letter of appeal dated November 14, 1991 6 . Area Map 7. Reduced floor plan, site plan, and elevations 8 . Building Height Definition Illustrations 9 . Illustrations of adjacent structure/existing structure building height comparison 10 . Applicant' s narrative 11. Petition in opposition to applicant ' s request 12 . Letter in opposition to applicant ' s request dated 10-3-91 13 . Letter in opposition to applicant ' s request dated 10-18-92 14 . Letter in opposition to applicant ' s request dated 12-17-91 15 . Miscellaneous letters in opposition to applicant ' s request 4 . CITY OF HUNTINGTON BEACH Notice of Action dated January 27, 1991. 5 . Letter to HASSAN from City Clerk regarding Government Code Section 1094 . 6 dated February 21, 1992 . 6 . Copy of Public Notice of Hearing appealing Planning Commission' s denial of conditional use permit dated January 9 , 1992 . 7. Amended Notice of Public Hearing appealing Planning Commission' s denial of conditional use permit dated January 16, 1992 . 1350K (Telephone:714-536-5227) CITY OF HUNTINGTON BEACH 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK CONNIE BROCKWAY CITY CLERK CERTIFICATION Conditional Use Permit No. 91-35 Conditional Exception (Variance) No. 91-28 Coastal Development Permit. No. . 91-15 Property Owner: Emad Ali Hassan Location: 4461 Los Patos Avenue Huntington Beach, California I am the duly elected City Clerk of the City of Huntington Beach. The attached records, described in the index, constitute the record of the proceedings of the City Council public hearing for the referenced applications and are true and correct copies of the originals on file in the Office of the City Clerk. Dated• 02 Connie Brockway, City/ Clerk 1350K (Telephone:714.536.5227) REQUEST FOR CITY COUNCIL ACTION 1 Date Submitted to: IT OR AND MEMBERS OF TH I CITY COUNCIL APPROVED BY CITY COUNCIL Submitted by: GA L HUTTON, CITY ATTOR EY a - 192M Prepared by: MIL HUTTON, CITY ATTORNEY Subject: HASSAN CONDITIONAL EXCEPTION CE 91-28 Ci Y CLE K Consistent with Council Policy? W Yes { ] New Policy or Exception , Statement of Issue, Recommendation,Analysis, Fu!Ving Source,Alternative Actions,Attachments: ISSUE• Should the city adopt the attached findings in support of its denial of CE 91-28, CUP 91-35, and CDP 91-15? RECOMMENDATION• Adopt the attached findings . ANALYSIS: At the meeting of January 21, 1992, City Council denied the application for a variance from the height limit on the property at 4461 Los Patos Avenue. The attached findings are presented for Council ' s consideration. Attachment : Proposed Findings j<Vo Plo 5/85 t CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION HUNTINGTON BEACH TO: Honorable Jim Silva, Mayor, and Members of the City Council FROM: Gail Hutton, City Attorney DATE: January 31, 1992 SUBJECT: Hassan Variance, 4461 Los Patos Avenue Proposed Findings CE 91-28 CU)P 91-3 5 CDP 91-15 We submit the following proposed findings for the consideration of the City Council in support of its action denying the referenced applications. Conditional Exception (variance) No. 91-28 1. The City was directed by the Court of Appeals in Reince v. City of Huntington Beach (No. G007973) to abate Hassan' s violation of the zoning code unless a timely request for a variance is granted. The court ruled that the structure was in violation of the zoning code, and that the 1985 building permit was invalid. 2 . Hassan filed a timely application for a variance (called a conditional exception in the City' s zoning code) . 3 . The structure is located at 4461 Los Patos Avenue. 4 . Although .there is a severe grade differential on the site, the property can and at all times could be fully developed within the existing development standards . a. The property can be developed as a two-story structure; construction of a third story is impossible without a variance or other zoning exception. b. The structure on the property exceeds the maximum height by 6 . 1 feet. 5 . The granting of a conditional exception (variance) for building height would constitute a special privilege as the property can and could be fully developed within the existing development standards. 6 . The granting of a conditional exception for building height would be detrimental to the welfare of the adjacent conforming properties in the v-icinity. The excessive height of the structure blocks views and may reduce the value of the, adjacent properties . Honorable Jim Silva, Mayor, and Members of the City •Council January 31, 1992 Page 2 7. There are not sufficient exceptional or extraordinary circumstances or conditions applicable to the land, buildings, or premises involved, or to the intended use of same, that do not apply generally to the property or class of uses in the same district to justify a conditional exception. Although the property has a grade differential of approximately ten (10) feet, the property can be fully developed within the existing development standards . 8 . The conditional exception is not necessary for the preservation and enjoyment of substantial property rights as the property can be fully developed within the existing development standards. 9 . The granting of a conditional exception would be materially detrimental to the public health, safety, and welfare or injurious to the conforming land, property, or improvements in the neighborhood of the property for which such conditional exception is sought. The additional height of the structure would adversely impact the privacy of the adjacent properties to the west and east and would block the views of the- properties to the east, thereby potentially reducing their property value. I Conditional Use Permit No. 91-35 1. The proposed use has a detrimental effect upon the general health, welfare, safety and convenience of persons residing or working in the neighborhood, or is detrimental to the value of the property and improvements in the neighborhood, in that: a. The proposed three (3) story single family home will have a detrimental effect on the privacy of the adjacent property to the west, east, and north across Warner. b. The proposed three (3) story home blocks the views of properties to the east and may result in a reduction of those properties ' value. 2 . The proposed use is not compatible with existing or other proposed uses in the neighborhood. The proposed three (3) story home is incompatible with adjacent properties which are two (2) stories in height. The adjacent properties to the west and east are two (2) story structures and conform to the current development standards I Honorable Jim Silva, Mayor, and Members of the City Council January 31, 1992 Page 3 Coastal Development Permit No. 91-15 1. The proposed three (3) story home does not conform to the applicable zoning and development standards contained in the City' s Local Coastal Program and Implementing Ordinances . The structure violates the city' s zoning code by exceeding the height limit. These findings are based upon the staff report prepared for the meeting on January 21, 1992, and the factual matters stated therein, to the extent they are not inconsistent with these findings, and on the testimony at the public hearing. The Writ of Mandate issued by the Superior Court on August 28, 1991, orders the City Council to direct the City Attorney to proceed with suit to abate the existing violation of the height limit in the zoning code and bring the residence into compliance with the zoning. code unless a timely variance is granted. The City Attorney is directed to bring a civil action in the name of the People of the State of California to abate the violation as a public nuisance. Gail Hutton City Attorney Reviewed fda Approved i W Mike Adams, Director Community Development cc: Michael T. Uberuaga, City Administrator Mark Bailey, Esq. Jeff Richard, Esq. V STATE OF CALIFORNIA County of Orange I am a Citizen of the United States and a resident of the County aforesaid; I am over the (amended publication) ache of eighteen years, and not a party to or interested in the below entitled matter. I am a principal clerk of the HUNTINGTON BEACH INDEPENDENT, a newspaper of general cir^.Ual on, printed and published in the City of Huntington Beach, County of Orange, State of REQUEST, cuP To e`r- CafifOmia.and that attached Notice Is a trite and FIIBLIC NOTICE •. to I and an exlstin'g' thirtli`s'to.rya NOTICE OF/t`:. tore _Cas'well fas toy complete CO as was printed and published in PUBLIC HEARING alloan approxlmatel"gx500' P pAPPEAL OF'PLA+NNING square foot adddwnon the the Huntington Beach and Fountain ValleyCOMMISSION'Sg sto -third Tstory. permit the existi ; DENIALS,,, . 91 third :story' structure'=and issues of said newspaper to wit the issue(s)of: CONDITIONAL USE the `proposed additwrito- PERMIT NO. the MUM floor- to exceed 9t,35/CONDITIONAL^ the 'minimumbuilding; EXCEPTION eighf,+t'pe,mitted_in Shoe Rtt (VARIAN.CE)NO zgnq ,assifi_cation (36.11 81=28%COASTAL ` r tfeetrin lieu of 30tteet).r� - DEVELOPMENT CDg: AA coastal(de4gp,-; 1992 me'nt`piermiR is rrequired,,as, January` 9, PE_RMITNO 91.15 the prop y�T I'Q16`cated January 16, 1992 (amended) (ToPermlc witnin�the non�appealablve an;exlsting portiont off the I -ooa`stall ' fhtr`d afory on 'jr Zone: g a single ENVIRONMENITAL,SST TUS Categoncaily exempt efamlli�nrelling .yc pursuant tox$eition,�lb,303 to7emalnywtth Class�3 ,of,x!ipr Calilornla 21500 square CE v, onmont'I Oua ity Act: r i foot eddltlon) s CyOAST,AIA STA U No�dn, NOTICE IS,,HEREBM Appealable *'j GIVEN that the Huntington OyN, FIL ,copy�othe Beach City Council w,ill1. PPioposed request is.on..file hold a public heanng,In the 'in h-9TCommunit,Develop- Council Chamber at;the �ment;DepartinentFZ.2Q00. HuritingtonaBeachClvia Main- Street, `Hunting`ton Cent"en�2000 MSIN Streefl Beach Califorma926`48; Huntington Bea �Califo`r� rlfor,•-lnspectlonby the pub- nia ion thee ate and�atthse IQcopyAoft�hstaff re"� Ume hcated belowAo,re- port.will'be available'to 111_ calve, ;andraconsider_ the. terested partie§aA it y Flail statement§13of Fall persons or the Main City Library who wish to be heard rela that the hve to the application de PUBLIC NOTICES.' I declare, under penalty of perjury, scribed below- C. .. D A T ,IME: Tuesday (Z111r� IberWAvdh- e)aft p" foregoing is true and correct. January 1992 7 00 PW 4Sa-:NreiA%t , g }Janu 7 1992 APPLICATION NUMBER r e - ...� ALIERESTED PER- Cond+honal Use Permit No�, .r►• SONed to attenExecuted an 91 35%Condrtfonal� Except said heann and ex ress J an uar 16, '9�? lion (Variance) No 1 28/ j p '� y r Coastal''Develo menu Me opinlohs or submlt evl, m'iteNo91 15 P a dance for or agamsf�'ttie at Costa Mesa, C91lomia. , apPIIcat1bn as outllned APPLICANT: James Gart Nabove: It,the[e,:are an fur- ❑ei ,;: y* that questions please call PROPERTY OWNER/Aj Tho"mas Rogers, Assistant PELLQNT Emad All Has IPlanoer at 5,36-5271 �» s:LOC-ATION. 4461 Los' Connie Brockway, -Signature Palos,:' , Clty;Clot ZONE'R1•CZ (Low Den =Published-Hunhng"ton sity 'Residential Coastal Beach/Fountain Valley.;ln- Idepe4 dent 4anuary,9,1992 ,Amended Publication Jan. •nary 16,1992 `012.047 PROOF OF PUBLICATION STATE OF CALIFORNIA County of Orange I am a Citizen of the United States and a : Pt1BLiC Yo resident of the Cou aforesaid; I am over the 94'. ,oTICE of t rrty �PUBLICHE/\IRING age of eighteen years, and not a party to or ;APPEAL O�!L�� ANNING �; COMMISSION S x ` interested in the below entitled matter. I am a CONDITIONAL,USE principal clerk of the HUNTINGTON BEACH 0. 35'/CONDIT ONALi INDEPENDENT, a newspaper of general EXCEPTION circulation, n. {` (VARIANCE); .A printed and published In the City Of z 91.28/COASTAL r 7 DEVEL OPM ENT Huntington Beach, County of Orange, State Of PERMITNO=91 15'y California,and that attached Notice is a true and fro Permit anti existing complete copy as was printed and published in tn',aiaa ifigl on .. the Huntington Beach and Fountain Valley Tamil$dwelling to remain with issues of said newspaper to wit the issue(s) of: a 500 square foot addition.) NOTfCE 'IS I{EREBY GIVEN:thaVthe-Huntmgfori 18each`,014nning Commis- !lion withhold a public hear- 1 January 9, 1992 ;ing he -burcil Chamber at the;:Huntington -Beach ;Civic=.Center, .2000 Main Street', Huntington Beach, jCalifornia,.:on.lhe date and at the time indicated below fd'receive atiq.consider the t statements of all. persons who wish to be-heard rela,: i x '.c"" t five to the applicationde PUBLIC NOTICESI scribed below :DATE/T.I;ME Tuesday" tENVIRONMENTiALtSTT�A= January 2t,1992 Z°00 PM TUS Categoricailye exempt :APPLICATION NUMBER€ pursua i%'tgA' ectic '15303 Conditional Use Peim 'N ito; Class 3ofrftheCaliforna 91-35/Conditional.` Excep-1 Envuonme0al Qualrty�Act. 'I lion (Variance) No. 91 28/ 'COA"STAL,'ST US 1�ENon=' Coastal Development Per.Appealable, mit No.91-15 l ON FILE Aycopyy of 6 APPLICANT..James Gart_- roposed request'Isxon.file ner in the,Community'.Develop- `PROPERTY%*OWNER/AP, ment-Qepartment -2000I PELLANT: Emad`.Ali Has= Mam =Street Huntington sari, Beach;' Califoinia :92648 j LOCATION: 4461 Los for inspection by.the pub-I Patos lic A copy of the staff re- declare, under penalty of perjury, that the ,.ZONE: R1-CZ (Low Den= port willYbe°available to in sity :Residential-Coastal terested partes`at City Hall foregoing is true and correct. Zone)'• or the,Jvlam City Libi REQUEST CUP:.To:per- (711'I Talbert Avenue) after mil an.exlstmg third story. January:.17<1992_ '= to remain asl well. as to ALL `INTERESTED PER- Executed an January 9, 19��? allow an approximately 500 SONS.are mvtted to attend square foot addition.on the said hearing and express at Costa Mesa, California. third story: opinions or submit -evi- CE:-To permit-th'e existing Bence for or against the Thud 'story 'structure and appl4cafiom as"`outlined_ the proposed. .addition to above. I�there__.a�resany,,fur- the third floor-to exceed ther<questtons,:•pI ase call fhe minlmu"m building_ Thoma`s':Rogers;AAssistant Sinature height permitted in the R1 Planner at 536 5271 g zoning classification (36.1 Connie Brockway, feet in lieu.of 30 feet). City Clerk CDP coastal A deyelopr Published Huntington ment permit.is-required as Beacfi(Fountain .Valley .In the property is located. de endent Janua 9,1992 within the non-appealable P... ry portion of the Coastal , 012-047 Zone. PROOF OF PUBLICATION REQUEST - FOR CITY COUNCIL ACTION January 21, 1997..- Date Submitted to: Honorable Mayor and City Council Members Submitted by: Michael T. Uberuaga, City Administrator (� Prepared by: Michael Adams, Director of Community Developm nt Subject: APPEAL OF PLANNING COMMISSION'S DENIAL OF CONDITIONAL USE PERMIT NO. 91-35/CONDITIONAL EXCEPTION (VARIANCE) NO. 91-28/COASTAL DEVELOPMENT PERMIT NO. 91-15 Consistent with Council Policy? PQ Yes [ ] New Policy or Exception Statement of Issue, Recommendation,Analysis, Funding Source,Alternative Actions, Attachments: STATEMENT OF ISSUE• Transmitted for your consideration is an appeal by Emad Ali Hassan to the Planning Commission' s denial of Conditional Use Permit No. 91-35, Conditional Exception (Variance) No. 91-28, and Coastal Development Permit No. 91-15, which is a request to permit an existing three (3) story home which exceeds the maximum permitted building height by 6 . 1 feet to remain and to add 500 square feet of living area to the existing third story. RECOMMENDATION• Staff Recommendation: Motion to: "Deny the appeal, but approve Conditional Use Permit No. 91-35, Conditional Exception (Variance) No. 91-28, and Coastal Development Permit No. 91-15, this will deny the request for additional living area on the third floor with findings and suggested conditions of approval . " (Attachment No. 1) Planning Commission Recommendation: Motion to: , "Deny Conditional Use Permit No. 91-35, Conditional Exception . (Variance) No. 91-28, and Coastal Development Permit No. 91-15 with findings. " (Attachment No. 2. ) � 3 Plo 5/85 r + Planning Commission Action on November 5. 1991: A MOTION WAS MADE BY RICHARDSON, SECOND BY NEWMAN, TO DENY CONDITIONAL USE PERMIT NO. 91-35, CONDITIONAL EXCEPTION (VARIANCE) NO. 91-28 AND COASTAL DEVELOPMENT PERMIT NO. 91-15 WITH FINDINGS FOR DENIAL, BY THE FOLLOWING VOTE: AYES: Richardson, Newman, Shomaker, Dettloff, Leipzig NOES: Kirkland ABSENT: None ABSTAIN: Bourguignon MOTION PASSED ANALYSIS• Background In 1985, the City issued a building permit for the existing three (3) story home. During construction, the City realized that the structure would not conform to the height limitation of 30 feet contained in the Zoning Code in effect at the time. In November, 1985, a stop work order was issued and revised plans were submitted. Construction then resumed on the structure. Again it was determined that the structure exceeded the Zoning Code height limitation, due to the fact that the Zoning Code did not address severe slope site conditions. At that time, the City determined that the Uniform Building Code definition of building height would be used. The Uniform Building Code definition has previously been used by the City to measure structures on severely sloped lots . Using this method of measuring building height, the structure was then determined to be within the 30 foot height limitation. Illustrations of the 1985 Zoning Code, current Zoning Code, and Uniform Building Code definitions of building height are included in this report as Attachment No. 8 . In response to the City' s decision, Charles Reince, the owner of a home situated three (3) properties to the east fronting on Marina View Place, sued the City to require that the Zoning Code be enforced and that the subject house be altered to conform to the height limitation contained within the Zoning Code. The State of California Court of Appeals has recently ruled that the City acted improperly in issuing the building permit for the structure in that the City did not have the legal basis to apply the Uniform Building Code definition as to height. Therefore, the Court has ordered the City to abate the zoning violation, unless a timely request for a variance to the maximum building height is granted. A detailed chronology of the events is included in Attachment No. 11. It is in response to the Court ' s ruling that this application is before the Council. RCA -2- (1860d) r Applicant ' s Request In addition to permitting the existing structure to exceed the 30 foot height limit by 6 . 1 feet, the applicant is proposing to enclose existing decks on the third floor to add 491 square feet of additional living area. The proposed addition would be within the existing building height; however, the third floor would project an additional 13 feet to the south over the existing second story. C nditional Exception (Variance) Before a decision can be made as to whether or not the conditional use permit can be granted, a determination on whether or not sufficient "special circumstances" exist on the property to grant a conditional exception (variance) for maximum building height must be made. Both State Law and Huntington Beach Ordinance Code have mandatory findings for granting a conditional exception (variance) . Analysis The first finding required is that "there are exceptional circumstances or conditions applicable to the land, buildings or premises involved. . . .that do not apply generally to the property in the same district. " Although the property is generally regular in shape, a severe grade differential exists on the site. The difference between the Los Patos grade at curb and the lowest point on the property (prior to original grading) is 10 . 5 feet. Since building height is measured from the lowest grade on the property, the extreme difference in grade makes the construction of a third story impossible. It should be noted that the existing structure, if constructed- on a level lot, would fit within the 30 foot building envelope permitted subject to a conditional use permit. I£ the Council determines that the findings for a conditional use permit can be made, staff believes that special circumstances, namely topography, exist on the property to justify the granting of a conditional exception (variance) to allow 6 . 1 additional feet in building height. Another finding that is required is that the granting of the conditional exception (variance) is not a special privilege. Again, once the conditional use permit findings for a third story are determined to be appropriate, staff believes it would not be a special privilege in that exceptional circumstances are applicable to the property. Further, several other three (3) story homes are located in the vicinity. Finally, properties with similar grade differentials could apply for a conditional exception (variance) to building height. RCA -3- (1860d) The third finding required is that the conditional exception (variance) is required for the preservation and enjoyment of property rights. Staff believes that if the conditional use permit findings for a third story apply, a conditional exception (variance) is required to permit the property owner to fully exercise their right to construct a third story as permitted through the conditional use permit process contained in the Huntington Beach Ordinance Code. Lastly, it must be determined that the granting of the conditional exception (variance) will not be detrimental to the public health, safety and welfare or injurious to conforming land, property or improvements in the immediate neighborhood. As in the conditional use permit analysis, staff does not believe that the third floor is injurious to the public health, safety or welfare. Additionally, no verifiable information has been submitted that shows a reduced property value existing as a direct result of the existing third floor. A site visit by staff shows that nearby properties that are most affected by the third floor still have substantial views of Huntington Harbour, the Pacific Ocean and the Bolsa Chica area. The view, however, would be further impacted by any additional square footage on the third floor. Again, it is for this reason that staff is recommending that the plans be modified to remove any additional living area on the third floor. Conditional Use Permit In reviewing third stories in the R1 zone, the Planning Commission is required to consider the following guidelines : 1. The proposed building shall not have a detrimental effect on the general health, safety, welfare or privacy of surrounding residents, or on surrounding property values; 2 . The location, site plan and building design shall be harmonious and compatible with the streets, driveways, property lines and surrounding neighborhood; 3 . The age and anticipated permanence to buildings on adjacent properties; and 4 . The Commission shall consider any other criteria it deems necessary to preserve the health, safety, welfare and convenience of the neighborhood. RCA -4- (1860d) Analysis Staff does not believe that the three (3) story structure is detrimental to the health, safety or welfare of the surrounding residents . The structure is built in compliance with the Uniform Building Code and therefore, does not pose an unreasonable health and safety risk to residents within the vicinity. The existing decks and windows of the existing as well as proposed structures do afford views into the adjacent westerly property' s yard. Although this does affect the privacy of that property, the same view can be seen from the second floor of the structure as a result of the close proximity of the structures to each other and the grade differential between the properties . The properties to the east are on a grade higher than the subject property. Additionally, the windows that currently exist on the third floor on the east elevation are setback approximately 25 feet from the side yard property line behind a roof top deck. Therefore, the third story does not affect the privacy of the easterly properties because of grade differences and setbacks that exist. Two (2) windows are proposed as a part of the 491 square foot addition to the third story. These windows could be conditioned to be removed or be made of a "frosted" material to assure the privacy of the owners to the east. The privacy issue does not affect the properties to the north or south as Warner Avenue is adjacent to the property on the north (the single family homes across Warner Avenue are approximately 150 feet from the third floor balcony) and the Bolsa Chica area is to the south. Finally, although several people testified that an appraisal has been done that documents the loss in property values, no information has been presented to the City that illustrates that the third floor has lowered property values in the vicinity. To the contrary, the additional square footage adds value to the subject property which will generally increase the value of surrounding properties . Another issue to be considered in reviewing third floors in the R1 zone is the compatibility of the design with the adjacent properties . The location, site plan and building design are required to be compatible with the streets, driveways, property lines and surrounding neighborhood. The existing structure' s footprint is in conformance with R1 standards in regards to open space, setbacks and site coverage. Although the_ architecture of building is unique, the use of similar building materials stucco and roof tile can be seen throughout the vicinity. Further, many custom homes of various architectural styles are in the immediate vicinity. RCA -5- (1860d) The third floor is set back from the Los Patos (south) elevation so as to eliminate excessive bulk from the residential street. Additionally, several other homes in the vicinity have third. stories to take advantage of the view. The proposed new addition would project an additional 13 feet towards Los Patos and would further impact views of the ocean and wetlands from adjacent properties. It is for these reasons that staff is recommending that the project be modified to maintain the existing decks and eliminate the proposed addition. This will help to maintain better compatibility with adjacent properties. It should be noted that while several properties in the vicinity are developed with a substantially lower building height, view easements have been recorded on those properties limiting building height. Those easements were known at the time of purchase by the property owners . No such view easement exists on the subject property. The age and anticipated permanence of the adjacent properties is also required to be considered. All structures in the immediate vicinity are relatively new and in good condition. It is not likely that these properties will recycle in the near future. Finally, the Council may use any other criteria it deems necessary to assure that the health, safety and welfare of the neighborhood are preserved. Given the previous discussion,. staff believes that findings can be made to approve the existing-- third floor; however, staff is recommending that the plans be modified to remove the proposed addition from the third floor. Coastal Development Permit The proposed project is within a non-appealable portion of the Coastal Zone. Prior to any action on Conditional Use Permit No . 91-35, it is necessary for the City Council to review and act on Coastal Development Permit No. 91-15 . Coastal Development Permit No. 91-15 may be approved or conditionally approved only after it has been found to be in conformance with the Coastal Element by making the following findings : (a) Land Use Plan. That the development project proposed by the coastal development permit application conforms with the plans, policies, requirements and standards of the Coastal Element Land Use Plan; (b) Zoning Regulations. That the coastal development permit application is consistent with the CZ suffix, the base zoning district or specific plan as well as other provisions of the Huntington Beach Ordinance Code applicable to the property; RCA -6- (1860d) (c) Adequate Services . That at the time of occupancy the proposed development can be provided with infrastructure in a manner that is consistent with the City' s Coastal Element; and (d) California Coastal Act. That the development conforms with the public access and public recreation policies of Chapter 3 of the California Coastal Act. Analysis The single family dwelling does conform to the Coastal Element ' s Land Use Plan which designates the subject property as Low Density Residential . If the conditional use permit and conditional exception (variance) findings can be made, the project will comply with the subject zoning regulations applicable to the property. The property already is serviced by adequate infrastructure consistent with the City' s Coastal Land Use Plan. Finally, the project conforms with Chapter 3 of the California Coastal Act as no public access on public recreation relating to coastal resources are affected by the third floor. ENVIRONMENTAL STATUS: The proposed project is categorically exempt pursuant to Class 3 , Section 15303 of the California Environmental Quality Act. Additional Information: At the November 5, 1991 public hearing before the Planning Commission, a speaker stated that a sitting member of the -Planning Commission had been the general contractor for -the construction of the home and had possibly voted in favor of the project. For the record, Frank Mirjahangir was the general contr-actor for the' project and was a Planning Commissioner at the time the house was built. However, Mr. Mirjahangir did not vote on the project as the home was never brought before the Planning Commission. In fact, building permits were issued without any formal discretionary action being taken by the City. It was also asserted at the Planning Commission public hearing that the home currently under construction directly adjacent to the east of the subject home would block most of the view that the subject third story currently blocks. This is not entirely true. As shown on Attachment 9 , the subject third story will remain visible above the Hassan residence to the properties located on Marina View Place. RCA -7- (1860d) Summary: Staff believes that adequate findings can be made to support Conditional Use Permit No. 91-35, Conditional Exception (variance) No. 91--28, and Coastal Development Permit No. 91-15 as modified by staff to remove any additional living area on the third floor. Other three-story homes are located in the immediate vicinity, many of the homes in the vicinity are "custom" and vary in architectural style, and the structure meets open space, setback, as well as other R1 development standards . In addition, the structure, if built on a level lot, would meet the 30 foot height requirement specified in the Zoning Code. If the Council determines that adequate findings cannot be made to allow the house to remain and denies the appeal, the City will be required to take action to have the property owner remove those portions of the structure that exceed the maximum building height of 25 feet to the .midpoint of the roof and 30 feet to the peak. FUNDING SOURCE: N/A ALTERNATIVE ACTION: Motion to: "Approve the appeal and approve Conditional Use Permit No. 91-35, Conditional Exception (variance) No. 91-28, and Coastal Development Permit No. 91-15 as requested by the applicant (includes the 500 square foot addition to the third floor) with findings and suggested conditions of approval. ATTACHMENTS: 1. Suggested Findings and Conditions of Approval (Staff recommendation) 2 . Alternative Findings for Denial (Planning Commisison Recommendation) 3 . Alternative Findings and Conditions for Approval (applicant ' s request-includes third floor addition) 4 . Draft Minutes from November 5, 1991 Planning Commission Meeting 5 . Applicant ' s letter of appeal dated November 14, 1991 6 . Area Map 7. Reduced floor plan, site plan , and elevations 8 . Building Height Definition Illustrations 9 . Illustration of adjacent structure/existing structure building height comparison 10 . Applicant ' s narrative 11. Petition in opposition to applicant' s request 12 . Letter in opposition to applicant ' s request dated 10-3-91 13 . Letter in opposition to applicant' s request dated 10-18-91 14 . Letter in opposition to applicant' s request dated 12-17-91 15 . Miscellaneous letters in opposition to applicant ' s request MTU:MA:TR: lp RCA -8- (1860d) SUGGESTED FINDINGS AND CONDITIONS OF APPROVAL (Applicant ' s Request) FINDINGS FOR APPROVAL - CONDITIONAL USE PERMIT NO. 91-35 : 1. The proposed three (3) story single family home and 491 square foot addition does not have a detrimental effect on the general health, safety, welfare or privacy of surrounding residents, or on surrounding property values . The structure is constructed in compliance with the Uniform Building Code and does not pose an undue health and safety risk to the surrounding properties or residents . Although the subject property has a view from the third story onto the property to the west, the same view is available from the second story and is a result of the close proximity of the structures to each other and the difference in grade between the two (20 properties . No windows are on the third story of the easterly elevation. No privacy issue exists as a direct result of the third story for the subject single family home. No information has been presented to demonstrate that the third floor has or will lower the property values of the adjacent properties. 2 . The location, site plan and building design are compatible and harmonious with the streets, driveways, property lines and surrounding neighborhood. The subject structure is made out ,of stucco and has a tile roof, both features are common to the vicinity. Numerous other three (3) story homes are located within the immediate vicinity. Additionally, the third story is set back to the rear of the home, thus reducing the building bulk visable from Los Patos Avenue. The structure also conforms to R1 development standards with regard to setbacks, open space and site coverage. 3 . The surrounding properties are developed with single family homes which are in good condition. It is unlikely that the area will experience significant recycling in the near future. FINDINGS FOR APPROVAL - CONDITIONAL EXCEPTION (VARIANCE) NO 91-28 : 1. There are exceptional or extraordinary circumstances or conditions applicable to the land involved that do not apply generally to other property or uses in the district. The topography of the site includes a grade differential that exceeds 10 feet. Since the lowest portion of the property is used to measure building height, the topography constitutes a substantial hardship on the development of the property. ATTACHMENT NO. � 2 . The granting of a conditional exception (variance) for building height is necessary in order to preserve the enjoyment of one or more substantial property rights. Subject to determining that a conditional use permit for a third story is appropriate, a conditional exception (variance) is required to exercise those property rights. 3 . The granting of Conditional Exception (Variance) No. 91-28 for building height will not be materially detrimental to the public health, safety and welfare, or injurious to the conforming land property or improvements in the neighborhood. Several other three (3) story homes are within the immediate vicinity. The structure is built in compliance with the Uniform Building Code and does not pose an undue health and safety risk to residents in the vicinity. Further, the structure is built of stucco with a tile roof which is compatible with other homes in the vicinity. 4 . The granting to the conditional exception (variance) for building height will not adversely affect the General Plan of the City of Huntington Beach. The existing and proposed use of the structure is for a single family dwelling and conforms with the Low Density Residential Land Use Designation and the City' s Housing Element. 5 . The granting of a conditional exception (variance) for the building height is not a special privilege. Subject to the approval of a conditional use permit for the third story, .a conditional exception (variance) is -required as exceptional circumstances exist on the property (topography) which make the granting of a conditional exception (variance) necessary to allow the third story. Additionally, several other three (3) story homes exist in the immediate vicinity. FINDINGS FOR APPROVAL - COASTAL DEVELOPMENT PERMIT NO 91-15 : 1. The proposed single family home and 491 square foot addition conforms to the Coastal Element' s Land Use Plan which designates the subject property as Low Density Residential . 2 . Subject to the approval of Conditional Use Permit No. 91-35 and Conditional Exception (Variance) No. 91-28, the project complies with the zoning and development standards applicable to the subject property. 3 . Adequate infrastructure is present to service the site in a manner consistent with the City' s Local Coastal Program. Sewer, electrical, water and street services presently serve the property. 4 . The project conforms with Chapter 3 of the California Coastal Act. The proposed single family home does not impact coastal access or recreation opportunities . 5 . Approval of the Conditional Exception (Variance) No. 91-28 will result in no modification of the requirement of the C-LUP. CONDITIONS OF APPROVAL - CONDITIONAL USE PERMIT NO. 91-35: 1. The site plan, floor plans, and elevations received and dated September 24, 1991 shall be the conceptually approved layout with the following modification: a. All windows on the third floor easterly elevation shall be frosted to protect the privacy of adjacent properties . 2. The development shall comply with all applicable provisions of the Ordinance Code, Building Division, and Fire Department. 3 . All building spoils, such as unusable lumber, wire, pipe, and other surplus or unusable material, shall be disposed of at an off-site facility equipped to handle them. 4 . Construction shall be limited to Monday - Saturday 7: 00 AM to 8: 00 PM. Construction shall be prohibited Sundays and Federal holidays . 1866d ALTERNATIVE FINDINGS FOR DENIAL (PLANNING COMMISSION RECOMMENDATION) FINDINGS FOR DENIAL - CONDITIONAL USE PERMIT NO, 91-35 : 1. The proposed three (3) story single family home will have a detrimental effect on the privacy of the adjacent property to the west. 2 . The proposed three (3) story home blocks the views of properties to the east and may result in a reduction of those properties ' value. 3 . The proposed three (3) story home is incompatible with adjacent properties which are two (2) story in height. FINDINGS FOR DENIAL - CONDITIONAL EXCEPTION (VARIANCE) NO. 91-28: 1. Although there is a severe grade differential on the site, the property can be fully developed ithin the existing development standards . 2 . The granting of a conditional exception (variance) for building height would constitute a special privilege as the -property can be fully developed within the existing development standards. 3 . The granting of a conditional exception for building height would be detrimental to the welfare of the adjacent conforming properties in the vicinity. The excessive height of the structure blocks views and may reduce the value of the adjacent properties . FINDINGS FOR DENIAL - COASTAL DEVELOPMENT PERMIT NO 91-15: 1. The proposed three (3) story home does not conform to the applicable zoning and development standards contained in the City' s Local Coastal Program and Implementing Ordinances . 1867d ATTACHMENT NO.� . SUGGESTED FINDINGS AND CONDITIONS OF APPROVAL (Applicant ' s Request) FINDINGS FOR APPROVAL - CONDITIONAL USE PERMIT NO. 91-35 : 1. The proposed three (3) story single family home and 491 square foot addition does not have a detrimental effect on the general health, safety, welfare or privacy of surrounding residents, or on surrounding property values . The structure is constructed in compliance with the Uniform Building Code and does not pose an undue health and safety risk to the surrounding properties or residents . Although the subject property has a view from the third story onto the property to the west, the same view is available from the second story and is a result of the close proximity of the structures to each other and the difference in grade between the two (20 properties. No windows are on the third story of the easterly elevation. No privacy issue exists as a direct result of the third story for the subject single family home. No information has been presented to demonstrate that the third floor has or will lower the property values of the adjacent .properties . 2 . The location, site plan and building design are compatible and harmonious with the streets, driveways, property lines and surrounding neighborhood. The subject structure is made out of stucco and has a tile roof, both features are common to the vicinity. Numerous other three (3) story homes are located within the immediate vicinity. Additionally, the third story is set back to the rear of the home, thus reducing the building bulk visable from Los Patos Avenue. The structure also conforms to R1 development standards with regard to setbacks, open space and site coverage. 3 . The surrounding properties are developed with single family homes which are in good condition. It is unlikely that the area will experience significant recycling in the near future. FINDINGS FOR APPROVAL - CONDITIONAL EXCEPTION (VARIANCE) NO. 91-28 : 1 . There are exceptional or extraordinary circumstances or conditions applicable to the land involved that do not apply generally to other property or uses in the district . The' topography of the site includes a grade differential that exceeds 10 feet . Since the lowest portion of the property is used to measure building height, the topography constitutes a substantial hardship on the development of the property. ATTACHMENT NO. 3 . 2 . The granting of a conditional exception (variance) for building height is necessary in order to preserve the enjoyment of one or more substantial property rights . Subject to determining that a conditional use permit for a third story is appropriate, a conditional exception (variance) is required to exercise those property rights . 3 . The granting of Conditional Exception (Variance) No. 91-28 for building height will not be materially detrimental to the public health, safety and welfare, or injurious to the conforming land property or improvements in the neighborhood. Several other three (3) story homes are within the immediate vicinity. The structure is built in compliance with the Uniform Building Code and does not pose an undue health and safety risk to residents in the vicinity. Further, the structure is built of stucco with a tile roof which is compatible with other homes in the vicinity. 4 . The granting to the conditional exception (variance) for building height will not adversely affect the General Plan of the City of Huntington Beach. The existing and proposed use of the structure is for a single family dwelling and conforms with the Low Density Residential Land Use Designation and the City' s Housing Element. 5 . The granting of a conditional exception (variance) for the building height is not a special privilege. Subject to the approval of a conditional use permit for the third story, a conditional exception (variance) is required as exceptional circumstances exist on the property (topography) which make the granting of a conditional exception (variance) necessary to allow the third story. Additionally, several other three (3) story homes exist in the immediate vicinity. FINDINGS FOR APPROVAL - COASTAL DEVELOPMENT PERMIT NO, 91-15 : 1. The proposed single family home and 491 square foot addition conforms to the Coastal Element' s Land Use Plan which designates the subject property as Low Density Residential . 2 . Subject to the approval of Conditional Use Permit No. 91-35 and Conditional Exception (Variance) No. 91-28, the project complies with the zoning and development standards applicable to the subject property. 3 . Adequate infrastructure is present to service the site in a manner consistent with the City' s Local Coastal Program. Sewer, electrical, water and street services presently serve the property. 4 . The project conforms with Chapter 3 of the California Coastal Act. The proposed single family home does not impact coastal access or recreation opportunities. 5� r • CONDITIONS OF APPROVAL - CONDITIONAL USE PERMIT NO. 91-35 : 1. The site plan, floor plans, and elevations received and dated September 24, 1991 shall be the conceptually approved layout with the following modification: a. All windows on the third floor easterly elevation shall be frosted to protect the privacy of adjacent properties . 2. The development shall comply with all applicable provisions of the Ordinance Code, Building Division, and Fire Department . 3 . All building spoils, such as unusable lumber, wire, pipe, and other surplus or unusable material, shall be disposed of at an off-site facility equipped to handle them. 4 . Construction shall be limited to Monday - Saturday 7: 00 AM to 8 : 00 PM. Construction shall be prohibited Sundays and Federal holidays . 1866d Fn uRAF 7�r B-1 CONDITIONAL USE PERMIT NO, 91-35/CONDITI69AL EXCEPTION VARIANCE) NO, 91-28/COASTAL DEVELOPMENT PERMIT NO. 91-15 (CONTINUED FROM THE OCTOBER 22, 1991 PLANNING COMMISSION MEETING) • APPLICANT: James Gartner LOCATION: 4471 Los Patos Conditional Use Permit No. 91-35, Conditional Exception (Variance) No. 91-28 and Coastal Development Permit No. 91-15 is a request to permit an existing three (3) story home which exceeds the maximum zoning height to remain and to add 500 square feet to the third story. Pursuant to Section 9110 .4(a) , a conditional use permit is required for all single family homes which include a third story. A coastal development permit is required since the property is located within the non-appealable portion of the Coastal Zone. A conditional exception (variance) has been initiated because the proposal exceeds the maximum height for third stories (36 . 1 feet in lieu of 30 feet) . Per the applicant ' s request, this item was continued from the October 22, 1991 Planning Commission meeting to the November 5, 1991 meeting . STAFF RECOMMENDATION: Staff recommends that the Planning Commission approve Conditional Use Permit No. 91-35, Conditional Exception (Variance) No. 91-2-8 and Coastal Development Development Permit No.. 91-15 as modified by staff (removal of any additional square footage on the third) with findings and suggested conditions of approval as contained in the Planning Commission staff report dated October 22, 1991. The Commission questioned how the height measurement of the house was achieved and if the zoning code was used as the standard. THE PUBLIC HEARING WAS OPENED. Jim Gartner, applicant, said he was not the original architect on the project, but he was there to answer any questions the Commission may have. George Armstrong, original developer of the tract, stated the home was in accordance with the orginal CC&R' s . He also stated that the home is an asset to the communi-ty and felt it was important to have different architectural styles. Donna George, spoke in opposition to the request. She stated her property is directly and negatively impacted by the building. Ms. George was concerned with invasion of privact, noise pollution caused by a retaining wass and loss of property value. Donna Klein, spoke in opposition to the request . She said she felt the building height had been handled with special treatment. PC Minutes - 11/5/91 -2- (1492d) Al 1AUH V ENT NCB. -.q 1 DRAFT,,' Jeffrey Richards, representing Chuck Re.ince, stated that the third story was built illegally, with permits issued wrongly. Mr. Richards stated the courts had ruled that the house should not have been built. Chuck Reince, spoke in opposition to the request. He stated that he had paid a premium for his ocean view, which was now non-existent.. He stated that even though it was realized that a permit was issued wrong the stop work order was lifted. He also said that an appraiser had stated that the house had lowered adjacent residents property values. Larry Price, spoke in opposition to the request_. He stated he was concerned with the lowering of property values and the blockage of his view of Catalina. Daniel Denny, spoke in opposition to the request. He stated that all adjacent property owners have complied with the City standards and this house should also comply. Don Hartfielder, original architect, stated he did not intentially or knowingly do anything illegal. He stated that the zoning code at that time was very gray. He also explained how he had derived the building height by UBC standards and said it was well outside the view corridors. He feels it is a legal structure. Terrance Ray, spoke in opposition to the request. Marc C. Bailey, Attorney for -the property owner, -stated the variance was not necessary five (5) years ago and is .not necessary now. He stated current construction on other bu-ildings will obstruct the opposing neighbors views more the this project. He stated the house was built legally. Emad Hassan, stated he felt his home was beautiful and enhanced the neighborhood. THERE WERE NO OTHER PERSONS PRESENT TO SPEAK FOR OR AGAINST THE REQUEST AND THE PUBLIC HEARING WAS CLOSED. A discussion ensued among the Commission regarding the courts decision, and which code to use in their decision. They were also concerned with the fact that the project was okayed five (5) years ago and now is considered illegal. PC Minutes - 11/5/91 -3- (1492d) DRA[_ A MOTION WAS MADE BY RICHARDSON, SECOND BY NEWMAN, TO DENY CONDITIONAL. USE PERMIT NO. 91-35, CONDITIONAL EXCEPTION (VARIANCE) NO. 91-28 AND COASTAL DEVELOPMENT PERMIT NO. 91-15 WITH FINDINGS FOR DENIAL, BY THE FOLLOWING VOTE: AYES: Richardson, Newman, Shomaker, Dettloff, Leipzig NOES: Kirkland ABSENT: None ABSTAIN: Bourguignon MOTION PASSED FINDINGS FOR DENIAL - CONDITIONAL USE PERMIT NO 91-35: 1. The proposed three (3) story single family home will have a detrimental effect on the privacy of the adjacent property to the west. 2. The proposed three (3) story home blocks the views of properties to the east and may result in a reduction of those properties ' value. 3 . The proposed three (3) story home is incompatible with adjacent properties which are two (2) story in height. FINDINGS FOR DENIAL - CONDITIONAL EXCEPTION (VARIANCE) NO 91-28: 1. Although there is a severe grade differential on the site, the property can be fully developed ithin the existing development standards. 2 . The granting of a conditional exception (variance) for building height would constitute a special privilege as the property can be fully developed within the existing development standards. 3 . The granting of a conditional exception for building height would be detrimental to the welfare of the adjacent conforming properties in the vicinity. The excessive height of the structure blocks views and may reduce the value of the adjacent properties . FINDINGS FOR DENIAL - COASTAL DEVELOPMENT PERMIT NO 91-15 : 1. The proposed three (3) story home does not conform to the applicable zoning and development standards contained in the City' s Local Coastal Program and Implementing Ordinances. PC Minutes - 11/5/91 -4- (1492d) RECEIVES, CITY CLERK BAILEY & SCHULTZ ''�'II`:''`,'`' - ': ;, e:.1 IF. LAWYERS / (( R"i ;rti A PROFESSIONAL CORPORATION `�)_ � ` i S,} I 't i BRINDERSON TOWERS 19800 MAcARTHUR BOULEVARD SUITE 1450 IRVINE, CALIFORNIA 92715 (714) 724-4519 FAX (714) 833-9275 November 14, 1991 City Clerk Civic Center 2000 Main Street Huntington Beach, CA 92649 Re: Conditional Use Permit No. 91-35; Conditional Exception (Variance) No. 91-28 Coastal Development Permit No. 91-15 Applicant: James Gartner Property Owner: Emad Ali Hassan 4471 Los Patos Avenue Huntington Beach, CA 92649 Dear Sir/Madam: This letter shall serve to formally advise you that Emad Ali Hassan, owner of the above-referenced property does hereby appeal to the full City Counsel of Huntington Beach from the decision of the Planning Commission denying my clients application for variance on the above-referenced matter. Mr. Hassan requests that the City Counsel review the Planning Commission's decision in this matter for the following reasons: 1. The Planning Commissions decision is contrary to applicable State law; 2 . The resulting hardship upon Mr. Hassan is such that the decision should be fully reviewed; 3 . The Planning Commission was not fully informed of all relevant material facts prior to making its decision; and 4 . The City Attorney was unable to fully advise the Commission members of the legalities of its decision. Our check in the amount of $200. 00 was submitted earlier today with my letter dated November 12 , 1991. Kindly advise us as to when this matter will be set for hearing. �.TrrvA link ��,s City Clerk November 14, 1991 Page 2 Thank you for your anticipated courtesy and cooperation in this matter. Very truly yours, BAILEY & SCHULTZ r Mark C. Bailey Attorney for Emad Ali Hassan MCB: ln Enclosure I Cc z _ J 0 J WARNER AVE I L- j RI-CZ RI• a RI-CZ CC, 1a--w--- WESTPORT N RI-CZ J J 3 )!JR( 5x,0)( I' ¢ RI-C W N R o� R3( R3 e c Iida R I-CZ 3 R30 R I-CZ RI-CZ J R3 RS „allc R3 R3 C4; I — P2 ,F R RI- � R 2 � R 2 ° R2 R3-19 Q .IA1+E5 CR KING 8•6C2=TI10 I (/` I N %FATHERLY BAY N N R:R, WR-CZ FP2 R I HR. Q _ R3 HUNTINGTON HARBOR `� '� RaRI-CZ WRI-CZ� BAY CLUB SPECIFIC PLA ,� Q s � 5EySNE ``\ EAPINE CR. C� RI-CZ Ri =_ CZ RI ° AVE . k RI-CZ 9S Pa G~ ! P e� ;\ 7t e 1 II'REZON(J) RA- "J � pZON 1 '.�,RI 0 1000 c'i� I SCALE IN FEET �.:P I CUP 1. 3 51C F 1 8 CDP 91- 15 J' ' HUNTINGTON BEACH HUNTINGTON REACH PLANNING DIVISION j i I Z7"P7 'ON 1N3WH0VUV Lt —4,- "xz o I I 1 { Q I, Q I I 99Z fi F F C V V V D V j y■1 ; O.i IY a. - JAMES GARTNER nw�l - t •l a ,-A %-S A M �t�c•�0 0 E'L i . �I h ASSOCIATES r,• .. II1I�I� A R C H I T E C T S eA.«ulr 6 1 A o l u-e- I L A-n 5 1•f t l o•M _ 1�1!i'll ;_t .•.••r O.nw t 11 l a p � z o _. �t I II I II \/.�•I is :. it S�nwc ln. '� / .. ;, — ' Al 1 1 I bl <tj Ct, i IL 11 SAK elsle�!\(L 'A5T12 tUl'F_—___ _ .. ' � �q(:ern �.°Y•t 7� i °L�' 1 \ •r I� < i �- LwSI - :RIIT.wG __- _ L+aGTNG us••w 1p ICYyN 1 NW Q>.7rIWnoT � Ll r wws+r s..Y A•1 1 IS4 a a 9'O 510 8 Ca }p I lV rj �FiY O II nttnr crntaI nnntlndn ont t❑ in 211- I •a. µ . � I _ � I I• Y I I - jw � rEJ13 U I]LI KE I 0. CC _ Z � O JAMES GARTNER 1�I+ a ASSOCIATES A R !'- H " 1 T E C T. S - ll,M,mr - M.O.R•t.N.•.1.O.y..1.N. .'-L•l.l.Y.�.1.1.O.N. 1 I i > (IIII!(I� _ - L,r. _ -''m.wm.w.urcr•�w�.c�uw•wu..w, " ri. M R. ftlqli ��• „ r,.um oaw .j.".�.C.I'. .N.�.\.I.�.y. b•a 0 > a i Ib'o I r I I .�I�Iy! CCCyi u I• C u y - _I •vI .I i I z � I o 8 • • I ' I EEE I 30•-0 e0 O - 'S 0 R O � I;III�Ii nn ::• hASSOCIATESAMES GATET N t. .N.�.�.1.A W. .A.t.W.O'O-Z-L- A R \C H 1 T E C T S en.a ulr W,t-I'T E. .E,L.E.V.A.T.,.O.N. J. �IIIII�� IAM t MMrA A JIf!.AI.MWA AMA.ulno.MA.IIMI 1 � 1 III.MI.MAs Owr -MIL: •['W :.=;.4111.'.M.A•t'f'A•M• , UNIFORM BUILDING CODE DEFINITION OF BUILDING HEIGHT "The vertical distance above a reference datum measured to the highest point of a coping of a flat roof .... The reference datum shall be selected by the elevation of the highest adjoining sidewalk or ground surface within a 5-foot horizontal distance of the building when such sidewalk or ground surface is not more than 10 feet." To P OF f=LAT ROOF* d = w 0 0 �--- m �c -.li` ;'71.V'dql 1 ( M.,1 ^ .;LLY Y J' •i 1.,j xt..: �'� y - �_.y 1 S� sJl —DAT U 114 a. , LOWEST GRADE �- (less than ten feet difference) 1955 ZONING CODE DEFINITION OF BUILDING HEIGHT "The vertical distance from the lowest elevation of the ground immediately adjacent to the building to the highest point of the roof." TOP OF FLAT ROOF � l l(; W 0 -. 4 � Z ...:.. . .... OL CURRENT ZONING CODE DEFINITION OF BUILDING HEIGHT "The vertical distance above a reference datum measured to the highest point of the coping of a flat roof or to a deck line of a mansard roof.... The reference datum shall be...an elevation four (4) feet higher than the lowest grade when the sidewalk or ground surface...is more than four (4) feet above lowest grade." TOP OF FLAT ROOF I.II � LU i 7 M D v --� ----— — - a OL 77 Q HASSAN RESIDENCE/ADJACENT RESIDENCE BUILDING HEIGHT COMPARISON HASSAN RESIDENCE (BEHIND) _. .::.: ..........____.-.•....,, r ADJACENT RESIDENCE (UNDER CONSTRUCTION) j I }�— N � Z c5 � I. •,. ^{i 'ea:t ..,. a �— Si m EASTERLY ELEVATION Z Z 0 JAMES GAR TNER & ASSOCIATES A rz c I-I I E c T S September 24, 1991 F1 E C E I @�r D N-1r. "I'honlas Rogers SEP L, City of Huntington Beach 1'lannlnc Department Dept. of 2000 M<;In St. lluntinLton Beach, CA 92648 RE: HASSAN RESIDENCE:, 4471 LOS PATOS AVL., LOT 2 TRACT 7743 Dear Mr. Rogers: Please find attached our completed initial drawing package for the Planning ComillisS1011 ;Ird for .he Coastal Development Perinit. Listed below is a narrative of the proposed usc: T11c reason for submitting this application is to apply for a height variance on the existing property located at the above address as well as approval to infill the existin;i, recessed roof decks with additional living space for the Master Bedroom. The caciosed package includes six sets of the original permitted set of ConstrtlCtIMI Docum cnts as well as six sets of the proposed remodel of the Master Bedroom. The area surrounding this project is residential and consists of other large hoines. The proposed use of this project is a private residence for one individual OW11CI. All surrounding uses are residential. Conditional Exception Due to the sloping topography of the lot the height had to he determined differently than a home on a flat lot, normally typical of Huntington Beach. The planning staff and the original architect followed the 1985 UBC to determine height because of the special conditions that this site had. It is this special circumstance that lead to the height determination. The structure is existing and built with a permit granted by the City of Huntington Beach in 1985. The home was constructed according to the attached Construction Documents that were approved by the City of Huntington Beach Building and Planning Departments. ATTACHMENT NO. 10 901 F.. SANTA ANA BOULEVARD, SUITE 103 • SANTA ANA CALIFORNIA 92701 71-i • 647 • 116o September 24, 1991 City of Huntington Beach rj3 Page 2 The Master Bedroom addition is requested in order to solve some technical leaking problems with the existing recessed roof decks as well as allow the owner to utilize his upper story consistent with the remaining balance of the home. This addition will not exceed the current height of the home. We do not feel the request for the lieight variance will grant any special privilege as the home was constructed according to approved plans and is built according to the approved plans. The Master Bedroom will not affect height or appearance. This request is necessary for the preservation and enjoyment of the owners property rights. here is not any reason why the granting of the height variance or Master Bedroom addition will affect the public welfare. -The Master Bedroom addition is not a detriment to the public welfare. Please call me if you have any questions regarding this application, "Thank you. Sincerer,, JA1vIES GARTNER & ASSO.CIATES, ARCHITECTS James.R. Gartner, AIA i DRUMMY KING .& WHITE A PROFESSIONAL CORPORATION ATTORNEYS AT LAW AREA CODE 714 S TEPHEN C. ORUMMY 3200 PARK CENTER DRIVE, TENTH FLOOR TELEPHONE 550-I800 ' JOHN P. KING, JR. COSTA MESA, CALIFORNIA 92626 ALAN I. WHITE TELECOPIER (714) 850-4500 DIRECT ALL MAIL TO: P.O. BOX SOBO C HARLES W. PARRET MICHAEL G. JOERGER COSTA MESA, CALIFORNIA 92628 IN REPLY - REFER TO 5304 . 001 JEFFREY M. RICHARD GREGORY E. ROBINSON KEVIN M. TRIPI LISA A. STEPANSKI MARK S. FAULKNER MARK R. BECKINGTON ., .. v {+ D OUOLAS F. RUBINO tl°`` �', ,bry i•� - LAWRENCE M. BUREK October 14 , 1991 ( M.E. DANIEL SHASTEEN GILT KENNETH W. CURTIS ALAN A. GREENBERG KERMIT D. MARSH f r`, r 0P111 nt - r 1. Seri.o. .. Mr. Thomas B. Rogers, Assistant Planner Department of Community Development City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Re: Conditional use permit and variance applications of Emad Ali Hassan; Hearing date - October 22 , 1991 Dear Mr. Rogers: Enclosed for inclusion in the Planning Commission packet concerning the above-referenced applications of Emad Ali Hassan is a Petition of homeowners in the neighborhood of the Hassan residence. These signatures represent 122 neighbors residing in 92 homes in the area surrounding Hassan ' s property, who oppose the application on the bases stated in the Petition. We will submit the original petition for the Commission' s review upon request. Among those who signed the petition are residents of 60 of the 63 homes which are located within a 500 foot radius of Hassan ' s structure. Two of the other three were not home after several attempts to contact them. Only one of the residents in those 63 homes within that radius was reluctant to sign the Petition. I believe this Petition demonstrates the overwhelming public opposition to Mr. Hassan ' s application and the general consensus that granting the application would be a continuation of the past preferential treatment of Hassan on this issue. JMR\COR\10794.1 ATTACHMENT NO. Mr. Thomas B. Rogers, Assistant Planner Department of Community Development City of Huntington Beach October 14 , 1991 Page 2 Please circulate copies of this Petition among the members and staff of the Planning Commission. Thank you for your attention to this matter. Sincere -y yours, J FFREY M. RICHARD of RUMMY KING & WHITE JMR:cyn Enclosures cc: Scott Hess, Zoning Administrator Howard Zelefsky, Director of Planning Department, Planning Commission Robert Sangster, Esq. Connie Brockway, City Clerk Mark Bailey, Esq. James Gartner, AIA Richard C. Carson, Esq. J MR\COR\10794.1 PETITION OF HOMEOWNERS NEIGHBORING RESIDENCE OF EMAD ALI HASSAN IN OPPOSITION TO ISSUANCE OF VARIANCE WHEREAS the California Court of Appeal has found that the residence owned by Emad Ali Hassan located at 4471 Los Patos, Huntington Beach, California, was constructed pursuant 'to an invalid building permit and was built to a height substantially exceeding the zoning code height limit that was applicable to that residence and to all surrounding single family residences; WHEREAS no special circumstances affect the Hassan property that would deprive such property of any of the privileges or uses enjoyed by other properties in the vicinity if the Hassan residence is brought into conformity with the applicable zoning code height limit; WHEREAS permitting the Hassan residence to remain in place as presently constructed would constitute a continuing violation of the zoning code height limit that applied to construction of the Hassan residence and would be tantamount to granting of an impermissible special privilege to Emad Ali Hassan and to his property. WHEREAS issuance of a variance to Emad Ali Hassan to permit his continuing use of his property for a single family residence that exceeds the applicable zoning code height. limit by about nine (91 ) feet - would be wholly inconsistent with the limitations imposed upon surrounding-.property owners; and WHEREAS Emad Ali -Hassan's use of- his property for a -three story, thirty-nine (391 ) foot structure is objectionable and unfair to surrounding property owners: THEREFORE, the signatories below, who are owners of property near the Hassan residence, hereby petition and request the City of Huntington Beach to deny any application for a variance or conditional exception submitted by Emad Ali Hassan for the purpose of allowing him to retain his impermissibly high single family residence, and further petition and request the City of Huntington Beach to take all appropriate steps to require Emad Ali Hassan to end his unlawful use of the property at 4471 Los Patos, Huntington Beach and to remove the unlawful portion of the structure. 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G/ti FQ, a Qc ,M- Ij - A -,� If -- 11'i e v n �'1 !1 G a , L L� 1 17,2 - � Ij Al J 1711) SIGN TUBE NAME ADDRESS DATE (Print) LG�i S c` J 7� � COU ii✓d� 7 ��, �S S � �SG�' � v � c��G� � a ..:� .ram✓ DAL AIA2 al ono 0 1703 GA) , �?/YL UYL� r- 1 a 3 2, 0 1 A3 C� q /70 9i C ,t3. ;z4f f o�r2 /7/7 //� 9-��9 u l / 7c�s7 7j lane sk, I oWl `1,l� a �Z�� I SIGNATURE NAME ADDRESS DATE (Print) -ros, P - -�, -�, C�c� fi Ij 17 / 11-27 1-71 71klp 164,MM-, Z21�1, 117107 , - r- ZIAez t ��dui 1 SIGNATURE NAME ADDRESS DATE (Print) 2-1 tfi J 1 ►�ovl �SIl 1 . W 9a�� 1 y 4232- 9,A 7�b LIL4dl7)0 1-44 � 7v �•�=,�'�V.. � I� l �r�'�� j j'�" ,�;��,.r ;�;cam'� �,i����`:'',�;,�� {--f�: ;��: ��' DRUMMY KING & WHITE A PROFESSIONAL CORPORATION ATTORNEYS AT LAW AREA CODE 714 3200 PARK CENTER DRIVE, TENTH FLOOR TELEPHONE 850-I800 STEPHEN C. CRUMMY JOHN P. KING, JR. COSTA MESA, CALIFORNIA 92626 ALAN 1. WHITE TELECOPIER (714) 850-4500 DIRECT ALL MAIL TO: P.O. BOX SOBO CHARLES W. PARRET MICHAEL G. JOERGER COSTA MESA, CALIFORNIA 9 1N REPLY 6?„� REFER TO 5034 . 001 JEFFREY M. RICHARD GREGORY E. ROBINSON (� • 1 KEVIN M. TRIPI fir LISA A. STEPANSKI MARK S. FAULKNER /f 199, MARK R. BECKINGTON UI D OUGLAS F. RUBINO October 3 , 1991 (� L� � 0evelor., nt LAWRENCE M. BUREK , H.E. DANIEL SHASTEEN KENNETH W. CURTIS ALAN A.GREENBERG KERMIT D. MARSH Mr. Thomas B. Rogers, Assistant Planner Department of Community Development City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Re: Reince vs. City of Huntington Beach; Opposition to applications filed by Emad Ali Hassan for variance and conditional use permit for 4471 Los Patos, Huntington Beach; CE 91-28 Dear Mr. Rogers: As you know, we represent Charles Reince, the homeowner who recently obtained a. Court of Appeal decision in his favor requiring the City of Huntington Beach to take steps to remove Mr. Hassan ' s unlawful use of his property. Mr. Hassan ' s property is being used unlawfully for a thirty-nine foot high, three-story house. The Court of Appeal has ruled that the building permit issued to Mr. Hassan in 1985 was invalid and therefore cannot be used as a basis to prevent the City from enforcing the zoning code which applied to construction of that residence. The Court of Appeal ruled that the City must abate that unlawful use of property, unless a timely variance can be issued. The Court of Appeal cautioned the City as to the special circumstances which must be i present for the issuance of any variance. 1MR\C0R`.10121.1 ATTACHMENT NO. _ I� Mr. Thomas B. Rogers, Assistant Planner Department of Community Development City of Huntington Beach October 3 , 1991 Page 2 We oppose the issuance of any variance or conditional use permit to Mr. Hassan for a number of very important reasons. The facts described below show that it would be unjustifiable and an act of utter unfairness to Chuck Reince for the City now to permit Mr. Hassan to retain his structure at the height originally built. I apologize for the length of this letter but this matter has a long history which must be explained and understood. Chronology of Events Leading to Violation of Zoning Code In May, 1985, when the invalid building permit. was issued, Mr. Hassan was represented by a contractor, Frank Mirjahangir, who was also a sitting Planning Commissioner at the time. Mr. Hassan was also represented by an architect, Don Hartfelder, a long- standing member in the past of City boards on architectural matters . When Mr. Mirjahangir presented building plans for the residence to the planning department ' s plan checker in late 1;ay, 1985, the plan checker recognized that the plans called for height exceeding the zoning code height limit by as much as eight or nine feet. Mr. Mirjahangir responded that it was his understanding that everything had been taken care of and that he was expecting prompt approval of the plans. The plan checker then took the plans to his supervisor, Mr. Godfrey, who also recognized the height problem. They then took the plans to James Palin, the Director of the AMCOR\10121.1 Mr. Thomas B. Rogers, Assistant Planner Department of Community Development City of Huntington Beach October 3 , 1991 Page 3 Planning Department who, for reasons which I will probably never determine, directed the plan checker to approve the plans so that a building permit could be issued. This resulted in the issuance of the May 23 , 1985 building permit which the Court of Appeal has now ruled was invalid. That erroneously issued building permit now apparently forms the basis for Mr. Hassan ' s present claim of "special circumstances" as asserted in his architect' s cover letter applying for a conditional use permit and variance. We can provide the City with ample authority that an invalidly issued building permit. cannot be used by a property owner to prevent the City from enforcing its zoning .code. I cannot imagine that a court would ever recognize a prior issuance of an invalid building permit as a "special circumstance" justifying the later issuance of a conditional use permit or variance (if we are ever forced to bring a new legal challenge in the event of the City ' s issuance of a special entitlement in this situation) . In September, 1985 , Chuck Reince saw the rough framing of Mr. Hassan ' s residence and recognized that it was being built to an excessive height. He went to the City and talked to Bob Franklin who recognized the excessive height called for by the plans when he said, "We have a problem here. " This complaint led the City to issue several repeated requests to Mr. Hassan for revised plans to comply with the zoning code definition of height, in which the City admitted that the JMMOR\10121.1 Mr. Thomas B. Rogers, Assistant Planner Department of Community Development City of Huntington Beach October 3 , 1991 Page 4 permit was issued in error and required Mr. Hassan to lower the height called for by the plans. At no time did Mr. Hassan ever seek a variance prior to or during construction of his residence to permit additional height, despite the fact that he and his architect were informed repeatedly that the height of the structure as planned and as framed was excessive under the Zoning Code ' s express method of measuring height. Instead, Mr. Hassan and his architect pushed forward. In response to the City ' s requests, they submitted several sets of revised plans which did not meet the City' s requests for compliance with the zoning code height limit. A stop work order was issued on November 6 , 1985 . Mr. Palin then went on vacation and new revised plans were submitted. In his absence, his assistants lifted the stop work order and construction proceeded. Mr. Palin returned from vacation and found that the revised plans were not suitable. Nevertheless, no new stop work order was ever imposed. Therefore, by late November, 1985 , despite the fact that the City had repeatedly requested revised plans to comply with the zoning code building height and the zoning code definition of building height, Mr. Hassan ' s house had continued in construction to the point where windows had been installed on the offending third story of the house and roof work was even taking place. Although still not imposing a new stop work order, Mr. Palin on November 20, 1985 wrote another letter to Mr. Hassan ' s architect informing him that the structure still had to be built "at 1MR\COR\10121.1 Mr. Thomas B. Rogers, Assistant Planner Department of Community Development City of Huntington Beach October 3 , 1991 Page 5 a maximum height of thirty feet from the top of the roof to finish grade outside and adjacent to the building to satisfy the code. " However, Mr. Hassan did not accept those requirements and construction proceeded as originally planned. Finally, on December 9 , 1985 , bowing to insistent pressure from Mr. Hassan' s architect, Mr. Palin requested a legal opinion from the City Attorney ' s office as to whether or not it would be permissible in the Hassan situation to switch to the Uniform Building Code definition of measuring building height. In response, the City Attorney sent a memo to Mr. Palin stating that the City ' s past administrative interpretation would be "the single most controlling factor" as to whether the UBC could properly be applied. The evidence at trial showed that the Uniform Building Code definition of measuring building height had never been applied to any single family residence in the past. The City was unable to find any previous example where the City had departed from the Zoning Code definition of measuring building height for any other single family residence. Nevertheless, despite the fact that the City Attorney called past administrative interpretation "the single most controlling factor, " Mr. Palin failed to consider whether the UBC definition of height had ever been applied in the past when he decided to apply the UBC definition of measuring building height retroactively so that the total height of Mr. Hassan ' s residence could be deemed in compliance with the height limit. The total JMR\COR\10121.1 Mr. Thomas B. Rogers, Assistant Planner Department of Community Development City of Huntington Beach October 3 , 1991 Page 6 height of the house was never altered or lowered (although an internal non-visible portion of the roof structure was lowered by one foot, eight inches so that it would be technically in compliance with the UBC definition of building height. However, that lowering did not affect the total height of the structure whatsoever. ) By applying the Uniform Building Code definition of building height retroactively, Mr. Palin essentially gave Mr. Hassan a nine foot forgiveness of height -- nine feet which would not have been allowed under the Zoning Code height definition then applicable. When the Zoning Code was amended in 1986 , the permissible height for single family residences went from thirty feet to twenty-five feet and the maximum number of floors was restricted to two. ' Therefore, Mr. Hassan' s house could never have been built to the height as it now stands; nor could it have been built to three stories without a showing of special circumstances warranting a variance. The only "circumstances" which now lead Mr. Hassan to seek a variance at this time are : ( 1) In 1985 , he, his contractor, and his architect pushed the City to allow construction of a non- 'As you know, an effort in the Huntington Harbour area to obtain approval for three-story houses is meeting much resistance. It is my understanding that the present proposal would limit a third floor to square footage of less thirteen percent of the first floor area. Mr . Hassan ' s plans show that his third floor is close to fifty percent as large as his first floor area. JMMCOW10121.1 Mr. Thomas B. Rogers, Assistant Planner Department of Community Development City of Huntington Beach October 3 , 1991 Page 7 conforming structure without seeking a variance, based upon an invalid building permit; (2) He now wishes to avoid the expense of altering his structure which the Court of Appeal decision will result in (but which is actually a direct result of his own stubborn, insistent conduct in 1985) and to retain what amounts to a special privilege of using a three story home on a piece of land which does not require three stories in order to be fully usable. Failure to Seek a Timely Variance The evidence developed in our lawsuit showed that in 1985 Mr. Hassan and the City' s representatives had discussed the idea of seeking a variance but rejected the idea. Mr . Hassan therefore did not seek a timely variance in 1985 which could and should have been considered and ruled upon by the Planning Commission before construction proceeded. By continuing with construction and persuading the City to apply retroactively a definition of building height which had never been used in any comparable situation in the past (and which has now been discredited and rejected by the Court of Appeal) , Mr. Hassan took the risk that completion of construction on his house would have to be undone in order to comply with the Zoning Code. By failing to pursue the proper administrative procedure of a variance or a conditional use permit at that time, Mr. Hassan ' s actions forced my client to pursue a lengthy and enormously expensive lawsuit to enforce the zoning code. My client ' s ]MR\COR\10121.1 Mr. Thomas B. Rogers, Assistant Planner Department of Community Development City of Huntington Beach October 3 , 1991 Page 8 entitlement and standing to bring the lawsuit were recognized. His property was and continues to be diminished in value by the presence of Mr. Hassan' s non-conforming residence which blocks 25 to 30 percent of his previously unobstructed ocean view. Mr. Hassan should not now be allowed to seek a belated variance or conditional use permit which he could and should have sought in 1985 if one would have been justified at that time. I would submit that he failed to seek a variance at that time because there would have been (and continues to be) no legal basis for the issuance of a variance. Mr. Hassan should be barred from now seeking a variance because it cannot be considered timely when sought nearly six years after construction. Furthermore, my client would be severely prejudiced by the tardy issuance of a special entitlement at this point in light of his lengthy and expensive pursuit of a favorable decision from the Court of Appeal . It should be noted that the Court of Appeal expressed no opinion as to whether or not a variance could now be issued but instead cautioned the City that any variance must be based upon a required showing of special circumstances and must be timely. Otherwise, the zoning code which applied to construction of the house must be enforced and the unlawful upper nine feet of the structure must be removed. Jh1R\C0R\10121.1 Mr. Thomas B. Rogers, Assistant Planner Department of Community Development City of Huntington Beach. October 3 , 1991 Page 9 Absence of Special Circumstances Mr. Hassan' s application asserts that the slope of his lot constitutes a special circumstance calling for the issuance of a variance. (I must point out that the Court of Appeal did not expressly give the City the option of granting. a conditional use permit but limited the City to a variance if it is timely and if a showing of special circumstances can now be made. ) As to the topography of Mr. Hassan ' s lot, the evidence at trial showed that a two-story structure could have been built on the lot despite the somewhat sloping nature of the lot. (It is noteworthy that in improperly applying the UBC, Mr. Palin applied the portion of_ the UBC' s definition of building height which pertains to less severely sloping lots, because the difference in elevation from the high point to the low point of elevation beneath the house did not exceed ten feet. ) Mr. Palin ' s testimony was that in his opinion it would be permissible to apply the UBC definition of building height "where there is a severe topographic slope across a piece of property, and the person would be highly restricted from building any height unless it was used. " He said that if a "normal" two=story house could not be built on a lot due to the sloping of the lot, then the UBC should be applied. However, Mr. Hartfelder conceded in his testimony that a two-story height structure could have been built on the Hassan site, JMMCM10121.1 Mr. Thomas B. Rogers, Assistant Planner Department of Community Development City of Huntington Beach October 3 , 1991 Page 10 - despite the topography. Thus, even applying Mr. Palin' s asserted "test" of when it would be appropriate to apply the UBC, this was not an appropriate situation. Mr. Palin' s after-the-fact attempt to apply the UBC was rejected by the Court of Appeal as being impermis- sible. Therefore, there is no special topographical feature of Mr. Hassan' s property which makes his three-story structure necessary or which justifies the continued unlawful use of the .property in non- conformity with the Zoning Code height limit applicable to his construction in 1985 . 7FREYUMMY ly yours, M. RICHARD of KING & WHITE JMR: cyn cc: Scott Hess, Zoning Administrator Howard Zelefsky, Director of Planning Department, Planning Commission Robert Sangster, Esq. Connie Brockway, City Clerk Mark Bailey, Esq. J James Gartner, AIA Richard C. Carson, Esq. ]MR\CO R\10121.1\100391.4 i DRUMMY KING WHITE A PROFESSIONAL CORPORATION `Y`y� YIV ATTORNEYS AT LAW AREA CODE 714 STEPHEN C. DRUMMY 3200 PARK CENTER DRIVE, TENTH FLOOR TELEPHONE 850-1800 JOHN P. KING, JR. CO.STA MESA, CALIFORNIA 92626 ALAN I.-WHITE TELECOPIER (714) 850-4500 DIRECT ALL MAIL TO: P.O. BOX 5080 CHARLES W. PARRET IN REPLY MICHAEL G. JOERGER COSTA MESA, CALIFORNIA 92628 REFER TO 5304 . 001 JEFFREY M. RICHARD GREGORY E. ROBINSON KEVIN M, TRIPI r1 ^ �� r j ,_•- - LISA A. STEPANSKI MARK 5. FAULKNER I - -- r MARK R. BECKINGTON V DOUGLAS F. RUBINO LAW REN E M. BUREK October 18 , 199.1 H.E. DANTEL SHA STEEN l:tom:�J(. l�� _..,.,,, .•.•.,., ,, KENNETH W. CURTIS ALAN A. GREENBERG KERMIT D. MARSH Mr. Howard Zelefsky Director of Planning Department, Planning Commission City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Re: Conditional Use Permit Application No. 91-35 ; Conditional Exception Application No. 91-28 ; 4471 Los Patos, Huntington Beach Hearing date: October 22 , 1991 Dear Mr. Zelefsky: On behalf of Charles Reince, who resides at 17211 Marina View Place, Huntington Beach, California, I am submitting the following memorandum of applicable law in opposition to the above-referenced applications submitted by James Gartner on behalf of the property owner, Emad Ali Hassan. A. STATUTORY AND LEGAL RESTRICTIONS ON THE ISSUANCE OF VARIANCES DO NOT PERMIT THE GRANTING OF APPLICATION NO. 91-28 . The purpose of variances has been described by the Court of Appeal in Hamilton vs. Board of Supervisors, 269 Cal .App. 2d 64 , 66 (1969) as follows: "They [variances] exist because it is recognized that, within a zone, there will be ATTACHMENT NO. Mr. Howard Zelefsky October 18 , 1991 Page 2 individual lots or tracts that . . . cannot be put to productive use if all the detailed requirements for that zone are to be strictly applied. . . . .The concept [of a variance] is that the basic zoning provision is not being changed but that the owner of the individualized lot is allowed to use it, in a manner basically consistent with the established zone, but with such minor variations as will put him on a par with other property owners in the same zone . . The procedures . . . are not created to give the applicant a better position than that enjoyed by his neighbors in the zone. " Id. at 66 . Thus, variances were created to allow a property owner to put his property to productive use, but not to put him in a better position than his neighbors. California Government Code §65906 restricts the issuance of variances as follows: "Variances . . . shall be granted only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification. " (Emphasis added. ) A variance cannot be granted unless the requirements of Government Code §65906 are meta Williams, California Zoning Practice, §7 . 17 , p. 235 (supp. 1989) . In addition to restricting variances to situations in which special circumstances make a variance necessary to make property useable; Government Code §65906 also requires: "Any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not J MR\M M\10929.1 Mr. Howard Zelefsky October 18 , 1991 Page 3 constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity . . " The variance applied for by Mr. Hassan and his architect, James Gartner, seeks a variance to allow 6. 1 feet of additional height on an existing third story (and a substantial addition of 500 square feet) . The variance application assumes that an accompanying conditional use permit application to allow a third story will be granted. (See discussion below. ) Nothing submitted in the application papers justifies the issuance of a variance or establishes any special need to have the Hassan house be 36 . 1 feet in height. The leading California case on variances is Topanga Association for a Scenic Community vs. County of Los Angeles, 11. Cal . 3d 506 (1974) . In that case, the Planning Commission ' s issuance of a variance was overturned by the Court of Appeal . The Court in Topanga found that the party seeking the variance had failed to show that a variance was necessary to bring -the property into substantial parity with other properties in the zone. Id.. at 520-521 . Significantly, the Court ruled that the party who seeks a variance has the burden of proving that a variance is necessary in order to make the property equally useable in comparison to other surrounding properties. The Court stated: "Speculation about neighboring land, however, will not support the award of a variance. The party seeking the variance must shoulder the burden of demonstrating before the zoning agency that the subject property satisfies the requirements therefor. . . . Thus, neither an administrative agency nor a reviewing court may assume without evidentiary basis that the character of neighboring properties is different from that. of the land for which the variance is sought. " Id. at 520 . Because the applicant in the Topanga case failed to show how his property differed from other parcels in the zone so as to make a variance necessary, the Court concluded that the variance JMR\MM\10929.1 Mr. Howard Zelefsky October 18 , 1991 Page 4 amounted to "the kind of ' special privilege ' explicitly prohibited by Government Code §65906 . 11 Id. at 522 . Similarly, Mr. Hassan and his architect have suggested in their application materials that the topography of Mr. Hassan' s lot makes it necessary that the structure be 36 . 1 feet and three stories high. However, they present no evidence or analysis of neighboring properties to show that his lot is any different than surrounding lots which were built in compliance with the Zoning Code. Mr. Hassan will be unable to show why his property requires a three-story, 36 foot structure while most other similar lots in the area (on the same bluff overlooking the Huntington Harbour area) are being used for conforming two-story structures. The Courts have generally struck down variances where a variance is sought not to make it possible to have effective use of the property but is instead sought to allow a more valuable use of the property. The Court in Hamilton vs. Board of Supervisors, 269 Cal.App. 2d 64 (1969) stated: "If the property can be put to effective use, consistent with its existing zoning, without the deviation sought, it is not significant that the variances sought would make the applicant' s property more valuable, or that they would enable him to recover a greater income, nor that they would leave him with undesired costs in compliance with the existing restrictions. " See also, Broadway, Laguna, etc. Association vs. Board of Permit Appeals, 66 Cal . 2d 767 (1967) . That is precisely what is happening in the present situation.. Mr. Hassan is belatedly attempting to obtain a variance in order to make his house more valuable and to avoid undesired costs in complying with the Zoning Code restrictions which should have been followed in 1985 . Mr. Hassan' s architect who designed the house, Don Hartfelder, testified at trial that a two story structure could have been built on the Hassan lot despite the topography. Therefore, the property could have been put "to effective use, consistent with its existing zoning, " if Mr. Hassan had chosen to JMR\MM\10929.1 Mr. Howard Zelefsky October 18, 1991 Page 5 build a two-story structure which complied with the 30-foot height limitation in effect at the time of construction. . (The existing structure is even less in conformity with the zoning code height limit as amended in 1986 which lowered the height restriction to 25 feet and established the maximum number of stories at two. ) Furthermore, the applicant must demonstrate as an independent requirement for the issuance of a variance that the variance is stified by "unnecessary hardship. " Zakessian vs. City of sadOelito, 28 Cal .App. 3d 794 (1972) . It is well established Yhat a self-induced hardship provides no basis for the granting of a variance, as .stated by the Court in Town of Atherton vs. Templeton, 198 Cal.App. 2d 146 , 154 (1961) . Similarly, hardship solely of a financial or economic nature is inadequate to satisfy the requirements for a variance under Government Code§65906 . This was stated by the Court in Broadway Laguna, etc. Association vs. Board of Permit Appeals, 66 Cal . 2d 767 , 775 (1967) . The only argument. which Mr. Hassan can make as to "hardship" is that he will be subjected to substantial expense in altering his structure in order to comply with the zoning code. Again, such economic hardship is not sufficient to meet the Government Code requirement. Once the structure is modified in compliance with the zoning code, the property will continue to be fully useable. Moreover, Mr. Hassan' s economic hardship was self-imposed. The evidence which we developed showed that Mr. Hassan made the conscious decision not to seek a variance in 1985 but instead took steps to convince Mr. Palin to allow construction to proceed by applying the inapplicable Uniform Building Code definition of building height. The Court of Appeal has found that application of the UBC was inappropriate. Thus, Mr. Hassan took the risk that by insisting on an improper method of measuring the height of the building, he might later have to spend substantial sums of money to alter his structure to make it conform to the code which applied. JMR\MM\10929.1 Mr. Howard Zelefsky October 18 , 1991 Page 6 B. NO JUSTIFICATION EXISTS FOR THE ISSUANCE OF A CONDITIONAL USE PERMIT AS REQUESTED BY APPLICATION NO. 91-35 . Huntington Beach Code §9841. 4 allows the Planning Commission to deny a conditional use permit application if it finds that the proposed use (1) is detrimental to property values in the neighborhood; or (2) is not contemplated under the master plan of land use; or (3) is not compatible with existing uses in the neighborhood; or (4) does not properly adapt the proposed structure to other adjacent structures and uses in a harmonious manner (among other grounds for denial of a CUP) . Those restrictions on the issuance of the conditional use permit for a third story are also incorporated into Zoning Code §9110 . 4 . The evidence developed at the trial in Reince ' s case against Hassan showed that Mr. Hassan ' s improper, . violative construction of a third story blocks 25 to 30 percent of Reince ' s previously panoramic view of the Pacific Ocean. Mr. Hassan now proposes to expand the third story on each side of the existing structure which will block an additional portion of the ocean view once enjoyed by Reince (and probably by others in the neighborhood) . Absolutely no justification can be suggested for the additional construction. Reince is willing to submit appraisal information showing that the Hassan structure resulted in a substantial diminution in his property value due to the obstruction of ocean view. This detrimental impact on surrounding property values constitutes a basis for denial of the conditional use permit. Furthermore, mere visual observation of the Hassan structure shows that due to . its immense size and characteristics, it is clearly incompatible and disharmonious with adjacent structures and uses. By requiring Mr. Hassan to restore his house to two stories, and to 30 feet in height (as required under the zoning code which applied to his construction in 1985 and 1986) , this will minimize the incompatibility of the structure and alleviate the adverse effect on surrounding property values. JMR\MM\10929.1 Mr. Howard Zelefsky October 18 , 1991 Page 7 Mr. Hassan will still be left with a two-story structure of substantial value, of the type which should have been built in the first place. Respectfully submitted, DRUMMY KING & WHITE FFREY M. RICHARD Attorneys for Charles Reince cc: Connie Brockway, City Clerk JMR\MM\10929.1 DRUMMY KING & WHITE A PROFESSIONAL CORPORATION I� ATTORNEYS AT LAW AREA CODE 714 I{ \ 3200 PARK CENTER DRIVE, TENTH FLOOR TELEPHONE 650-I600 S TEPMEN C. DRUMMY Y1J1 JOHN P. KING, JR. {` COSTA MESA, CALIFORNIA 92626 ALAN 1. WHITE / ` TELECOPIER (714) 650-4500 DIRECT ALL MAIL TO: P.O. BOX 5080 CHARLES W. PARRET - MICMAEL G, JOERGER COSTA MESA, CALIFORNIA 92628 N REPLYREFER TO 5304 . 001 JEFFREY M. RICHARD GREGORY E. ROBINSON KEVIN M. TRIPI . - ' c. i LISA A. STEPANSKI '^ MARK S. FAULKNER MARK R. BECKINGTON DOUGLAS F. RUBINO -�'•• ; LAWRENCE M. BUREK December 17 , 1991 ` H.E. DANIEL SHASTEEN - �f KENNETH W. CURTIS ALAN A. GREENBERG KERMIT D. MARSH Michael Uberuaga City Administrator City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Re: Variance application of Emad Ali Hassan; 4471 Los Patos; Conditional Exception Application No. 91-28 . Dear Mr . Uberuaga: I represent Charles Reince, the homeowner who received a favorable Court of Appeal decision which has now resulted in Mr. Hassan ' s variance application. When the Planning Commission denied Mr. Hassan ' s application for a variance and conditional use permit (by a vote of 5-1-1) they made a definitive ruling on the technical impropriety of the application from a zoning and land use standpoint. Prior to the Planning Commission hearing, I presented a letter describing the applicable law making the variance and conditional use permit sought by Mr. Hassan impermissible. A copy of that letter, which is also in the Planning Commission staff packet, is enclosed for your reference. Because the legal considerations overwhelmingly call for denial of the untimely application, the remaining factors apparently being considered by the City Council can only be characterized as political or practical in nature: 1. What are Mr. Hassan' s legal remedies and rights against the City if the variance application is denied? The answer to that question, as explained below, should be: "none. " The City should be protected by traditional governmental immunities against any damage claim brought by Mr. Hassan. JMR\COR\13900.1 ATTACHMENT NO. y Michael Uberuaga City Administrator City of Huntington Beach December 17 , 1991 Page 2 2 . On the other hand, if a variance application is denie what are Chuck Reince ' s remedies and what will the costs to City be in that event? As set forth in some detail in the accompanying letter concerning variances and conditional use permits, no legal basis exists for a variance or conditional use permit in this situation. Therefore, if such a special entitlement were issued, this would constitute the granting of a special privilege to Mr. Hassan. Chuck Reince would then continue his effort to enforce the zoning code by filing a writ of mandate proceeding against the City and Mr. Hassan seeking to reverse the issuance of the variance and conditional use permit. Unlike the previous lawsuit, this would be a quick proceeding since all of the facts are known, since the Court of Appeal has previously spoken, and since the legal restrictions on the issuance of variances are well known. I believe that the courts would see the issuance of a variance (six years after the fact and without any basis) as a clear abuse of discretion. On the other hand, if the variance application is denied, the City has no concern about any additional monetary claim or remedy held by my client, inasmuch as he has already prevailed in the courts and is entitled to. his court costs of around $6, 000 from the City and Mr. Hassan. If the variance is denied, he would acquire no greater rights or claims than he already has. Therefore, the City has nothing to fear from Chuck Reince if the applications are denied. I should point out that at no time has the City or Mr. Hassan ever made any offer to my client to resolve this matter by compensating him for his attorney' s fees and the diminution of his property value. We have always been open to such discussion but have never been approached along those lines. 3 . Will denial of the variance application and removal of the excessive height of Mr. Hassan ' s structure set a precedent in the City which developers or builders should be worried about? The answer to this question is "no. " This case involves a very special set of circumstances. My client complained during the very early stages of construction, appeared before several Planning Commission JMR\COR\13900.1 Michael Uberuaga City Administrator City of Huntington Beach December 17 , 1991 Page 3 and City Council meetings to protest the construction, received assurances from the City that the zoning code height limit would be enforced, and was finally forced to file a lawsuit in order to vindicate his position. The fact that my client was so diligent in bringing this matter to the attention of the City and to the attention of the Courts weighed heavily in his favor. He even obtained a temporary restraining order which the evidence at trial indicated was violated by Mr. Hassan. My client took action before construction was ever completed. On the other hand, if there are completed structures in the City which exceed height limitations without any timely opposition by neighbors, I believe that such neighbors would be hard-pressed to take legal action if they have waited until after construction was completed. Such inaction on their part would probably bar them from taking any action similar to the efforts which my client has made. Moreover, the Court of Appeal decision in our case is not a published opinion and .therefore cannot . be cited as precedent by any future litigants. Hence, I believe that the City should be able to calm the fears of any builders or financial institutions who are concerned about the future effect of the City Council ' s decision. Similarly, denying Mr. Hassan ' s application (which is six years too late and which is not justified by any special circumstances) , would certainly not prohibit the City from granting a variance in the future for additional height where the variance application is made in a timely manner (prior to construction) and where the circumstances justify a variance. The remainder of this letter will address question no. 1, above, concerning Mr. Hassan ' s probable legal rights if the variance application is denied. Traditional Governmental Immunities Should Apply to Protect the City from any Claim of Damages Brought by Mr. Hassan. Government Code Section 818 . 4 , in pertinent part, provides: 1MRICOR\13900.1 Michael Uberuaga City Administrator City of Huntington Beach December 17 , 1991 Page 4 "A public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order., or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked. " This and other statutes establish the traditional governmental immunities which should protect the City of Huntington Beach in this instance. The Court of Appeal has ruled that the building permit issued on May 23 , 1985 was invalid. As discussed below, because the building permit was invalid and because the City is authorized by law to determine whether variances or conditional use permits - should be issued, the City is protected from liability for any damages caused by the issuance of the building permit or the decision not to issue a variance or conditional use permit. Mr. Hassan has claimed in the past that he acquired "vested rights" to continue his use of the property for the house which presently exists. However, that issue has also been expressly ruled upon by the Court of Appeal . The Court of Appeal in our lawsuit ruled that Mr. Hassan acquired no vested rights. In the absence of vested rights, there is no exception applicable in this instance to the governmental immunities established by Section 818 . 4 et seq. The Courts have applied governmental immunities to protect public entities from damage claims. For example, in O'Hagan vs. Board of Zoning Adjustment, 38 Cal.App. 3d 722 (1974) , a property owner had been using his property for operation of a Burger King restaurant pursuant to a use permit. However, the Board of Zoning Adjustment revoked the use permit on the basis that the operation of the business was a public nuisance. The Court of Appeal denied any monetary remedy to the property owner for damages allegedly resulting from revocation of the use permit. The Court applied Government Code §§ 820 . 2 and 821. 2 to prohibit any claim of damages 1MR\COR\13900.1 Michael Uberuaga City Administrator City of Huntington Beach December 17 , 1991 Page 5 against public employees for such actions and applied Section 818 . 4 to protect the public entity from damages resulting from such licensing activities. In fact, the Court in O'Haaan said that even if a vested property right had been acquired based upon the use permit, "a vested right is far from being irrevocable. " Id. at 727 . In contrast to that case, Mr. Hassan never acquired any vested property right because the building permit pursuant to which he built his house was invalid. The issuance of a building permit is not a mandatory duty but is discretionary. In Slagle Construction Co. vs. County of Contra Costa, 67 Cal.App. 3d 559 (1977) , the County was held to be immune from a lawsuit for damages caused by an alleged wrongful refusal to issue a building permit. The Court noted that the builder had no absolute right to a building permit even after his final map had been approved. Id. at 563 . The refusal to issue a building permit is within the discretion of the public entity and therefore the entity is immune from any liability for damages resulting even from the wrongful exercise of .that discretion. See also Burns vs. City Council, 31 Cal.App. 3d 999 (1977) . In the present situation, the denial of a variance would not be wrongful but would be justified by the facts at hand and by the applicable law. Because the City has been ordered by the Court to take action, and because denial of the variance would be a proper exercise of the City' s powers, the City should have no fear of liability in light of well-established governmental immunities. W16COM 13900.1 J Michael Uberuaga City Administrator City of Huntington Beach December 17 , 1991 Page 6 If any recipient of this letter would like to discuss it with me, please feel free to call . Sixw-erely yours, M. RICHARD of UMMY KING & WHITE JMR: cyn cc: Gail Hutton Shirley Dettlowff Robert Sangster Jan Shomaker Mayor Jim Silva Suzie Newman Grace Winchell Ken Bourguignon Linda Moulton-Patterson Victor Leipzig Jack Kelly Roy Richardson Don MacAllister Howard Zelefsky Earle Robitaille Mike Adams Dr. Peter Green Chairman Kirk Kirkland J MR\CO R\13900.I 17191 Marina View Place Huntington Beach, Calif 92649 November 3, 1991 Planning Commission 200 Main Street Huntington Beach, Calif 92648 RE: CUP 91-35, CE 91-28 Emad Ali Hassan 4471 Los Patos, Huntington Beach, Calif 92649 Dear Planning Commissioners, I oppose the CUP as well as the CE. My home is east of the Hassan structure and my view has been significantly obstructed by the "illegal bulk" of the Hassan building. This loss of ocean view has resulted in a significant reduction of my property's value. The over height of the structure does have a detrimental effect on my property value. A Conditional Use Permit demands the planning commissioners DENY CUP 91-35 and 91-28 because of the existing detrimental effect on the surrounding property values . Thank You, Larry R. Pri e Sally J. Price ATTACHMENT NO. , I5 F. ILI i99i from: Wm Halpin 17182 Marina View Pl . Huntington Beach, Ca. 92649 Planning Commission 2000 Main St. Huntington Beach,Ca. 92648 Re; CUP 91-351 CE 91-28 Emad Ali Hassan 4471 Los Patos , H . B. Ca. 92649 Dear Commissioners : Myself and my wife want to express in the strongest terms possible our opposition to the CUP and the CE . Our view of the ocean and the beach has been blocked by the dimensions of the Hassan building . We live to the east of the structure and the obstruction caused by the building has affected the value of our home as well as those of our neighbors . When the original land developer came in on that land he asked for, and was granted a variance to divide into more lots than would have normally been allowed on the land. The planning commission rejected his appeal but the council overruled the commission. The division was so poorly planned that he could not even sell one .lot as it was unbuildable, so he incorporated it into another lot . In. order to further protect our view we bought and paid the developer for CC&R' s that guaranteed a height restriction. We carefully calculated the maximum height of any building that would go on the lot on which the Hassan building is on to insure our view. The building there now has robbed us of that which we took great pains to guarantee . My understanding is that a conditional use permit must not be detrimental to the surrounding property values and that is definitely not the case here. I request the planning commissioners to deny CUP 91-35 & CE 91-28 because they would have a clearly detrimental j affect on the value of my home. Sincerely, Wm. Halpin i I 1 . . MICHAEL TEBRICH 17202 Marina View Place •.Huntington Beach, CA 92649 (714) 840-0290 October 31 , 1991 Planning Commission CITY OF HUNTINGTON BEACH 2000 Main St. Huntington Beach, CA 92648 RE: CUP 91-35; CE 91-28 Emad Ali Hassan 4471 Los Patos Huntington Beach, CA Dear Planning Commissioners, I want to express my concerns and that I oppose the CUP and the CE. I live to the east of Mr. .Hassan's home and my ocean view has been obstructed by the illegal portion of his home. As I understand, a conditional Use Permit demands that the proposed building shall not have a negative or detrimental effect on the other proper— ties in the area in relation to value. The loss of ocean view significantly impacts and lessens the value of my property. Without the illegal and excessive height of Mr. Hassan's home my view would be unobstructed, or as it originally was when I purchased the home. That view is what I paid premium for. I request the Planning Commission DENY CUP 91-35 and CE 91-28 due to detrimental effect on otTTe—r property values in the area.- Sincerely, Michael J Tebrich MJT:a 17201 Marina View Place Huntington Beach, CA 92649-4365 U A October 30, 1991 Planning Commission City of Huntington Beach C: .of Cc::m. i)r 4, .e;rre,.. 2000 Main Street Huntington Beach, CA 92648 RE: CUP 91-35, CE 91-28 4471 Los Patos , Huntington Beach, CA Dear Members of the Planning Commission, I strongly oppose the application for CUP/CE for the Hassan structure. My home is east of the Hassan structure. My ocean/Catalina Island view has been significantly blocked by Hassan's illegal "bulk" . This loss of ocean view has resulted in a significant reduction of my property' s value. The excess and illegal height of the structure does have a detrimental effect on my property value. I am a real estate investor and property manager. Every real estate broker contacted by me or my neighbors agrees with the statement: Loss of ocean view detrimentally affects property value It is stated in the Staff Report (October 22 , 1991) , under the requirements for approval of a Conditional Use Permit section that: " . . . the proposed building shall not have a detrimental effect on the . . . surrounding property values" . Therefore, I respectfully request the Planning Commissioners deny CUP 91-35 and CE 91-28 for failing to meet this significant and pivotal requirement. Sincerely, Carolyn P. Young 1 17191 Marina View Place Huntington Beach, Calif 92649 November 3, 1991 Planning Commission 200 Main Street Huntington Beach, Calif 92648 RE: CUP 91-35, CE 91-28 Emad Ali Hassan 4471 Los Patos, Huntington Beach, Calif 92649 Dear Planning Commissioners, 'I oppose the CUP as well as the CE. My home is east of the Hassan structure and my view has been significantly obstructed by . the "illegal bulk" of the Hassan building. This loss of ocean view has resulted in a significant reduction of my property's value. The over height of the structure does have a detrimental effect on my property value. A Conditional Use Permit demands the planning commissioners DENY CUP 91-35 and 91-28 because of the existing detrimental effect on the surrounding property values . Thank You, Daniel J. Denney ` Lisa R. De iney is U � :.....ow C(4p _.. pc6e- b(AAe `- W NCO b ��� �'�� �,5�'�-�V• � - ; Col)Q,�'cav�- aho eA 5 f 5 J Job- to h p cc se 15 c� 6 CeAp V 6 L 64.� , X R� V,,f L Ue5 CITY OF HUNTINGTON BEACH Ira 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK CONNIE BROCKWAY CITY CLERK February 21, 1992 Emad Ali Hassan 4471 Los Patos Huntington Beach, CA 92647 Dear Mr. Hassan: The City Council of the City of Huntington Beach at its regular meeting held Tuesday, January 21, 1992 denied your application relative to Conditional Use Permit No. 91-35 and Conditional Exception (Variance) No. 91-28 based on attached findings. At its meeting held Tuesday, February 18, 1992, the City Council adopted additional findings for denial; copy attached. This is a final decision. You are hereby notified that pursuant to provisions of Section 1094.6 of the Code of Civil Procedures of the'State of California you have ninety days from February 21, 1992, to apply to the courts for judicial review. If you have any questions regarding this matter, please contact this office at 536-5227. Sincerely yours, e e't�z� , G Connie Brockway, CMC City Clerk CB:me Enclosure CC: City Administrator City Attorney Community Development Director Tom Rogers, Community Development Mark C. Bailey, Attorney 1051 K (Telephone:'»4-sa6-szz7) . d �I@ CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION HUNnNGTON BEACH TO: Honorable Jim Silva, Mayor, and Members of the City Council FROM: Gail Hutton, City Attorney DATE: January 31, 1992 SUBJECT: Hassan Variance, 4461 Los Patos Avenue Proposed Findings CE 91-28 CUIP 91-3 5 CDP 91-15 We submit the following proposed findings for the consideration of the City Council in support of its action denying the referenced applications . Conditional Exception (variance) No. 91-28 1. The City was directed by the Court of Appeals in Reince v. City of Huntington Beach (No. G007973) to abate Hassan' s violation of the zoning code unless a timely request for a variance is granted. The court ruled that the structure was in violation of the zoning code, and .that the 1985 building permit was invalid. 2. Hassan filed a timely application for a variance (called a conditional exception in the City' s zoning code) . 3 . The structure is located at 4461 Los Patos Avenue. 4 . Although there is a severe grade differential on the site, the property can and at all times could be fully developed within the existing development standards. a. The property can be developed as a two-story structure; construction of a third story is impossible without a variance or other zoning exception. b. The structure on the property exceeds the maximum height by 6 . 1 feet. 5 . The granting of a conditional exception (variance) for building height would constitute a special privilege as the property can and could be fully developed within the existing development standards. 6 . The granting of a conditional exception for building height would be detrimental to the welfare of the adjacent conforming properties in the vicinity. The excessive height of the structure blocks views and may reduce the value of the adjacent properties . Honorable Jim Silva, Mayor, and Members of the City Council January 31, 1992 Page 2 7. There are not sufficient exceptional or extraordinary circumstances or conditions applicable to the land, buildings, or premises involved, or to the intended use of same, that do not apply generally to the .property or class of uses in the same district to justify a conditional exception. Although the property has ' a grade differential of approximately ten (10) feet, the property can be fully developed within the existing development standards . 8 . The conditional exception is not necessary for the preservation and .enjoyment of substantial property rights as the property can be fully developed within the existing development standards. 9 . The granting of a conditional exception would be materially detrimental to the public health, safety, and welfare or injurious to the conforming land, property, or improvements in the neighborhood of the property for which such conditional exception is sought. The additional height of the structure would adversely impact the privacy of the adjacent properties to the west and east and would block the views of the properties to the. east, thereby potentially reducing their property value. Conditional Use Permit No. 91-35 1. The proposed use has a detrimental effect upon the general health, welfare, safety and convenience of persons residing or working in the neighborhood., or is detrimental to the value of the property and improvements in the neighborhood, in that: a. The proposed three (3) story single family home will have a detrimental effect on the privacy of the adjacent property to the west, east, and north across Warner. b. The proposed three (3) story home blocks the views of -properties to the east and may result in a reduction of those properties ' value. 2. The proposed use is not compatible with existing or other proposed uses in the neighborhood. The proposed three (3) story home is incompatible with adjacent properties which are two (2) stories in height . The adjacent properties to the west and east are two (2) story structures and conform to the current development standards. Honorable Jim Silva, Mayor, and Members of the City Council January 31, 1992 Page 3 Coastal Development Permit No. 91-15 1. The proposed three (3) story home does not conform to the applicable zoning and development standards contained in the City' s Local Coastal Program and Implementing Ordinances . The structure violates the city' s zoning code by exceeding the height limit. These findings are based upon the staff report prepared for the meeting on January 21, 1992, and the factual matters stated therein, to the extent they are not inconsistent with these findings, and on the testimony at the public hearing. The Writ of Mandate issued by the Superior Court on August 28, 1991, orders the City Council to direct the City Attorney to proceed with suit to abate the existing violation of the height limit in the zoning code and bring the residence into compliance with the zoning code unless a timely variance is granted. The City Attorney is directed to bring a civil action in the name of the People of the State of California to abate the violation as a public nuisance. Gail Hutton City Attorney Reviewed nd Approved 4v Mike Adams, Director Community Development cc: Michael T. Uberuaga, City Administrator Mark Bailey, Esq. Jeff Richard, Esq. i January 21, 1992 ALTERNATIVE FINDINGS FOR DENIAL (PLANNING COMMISSION RECOMMENDATION) FINDINGS FOR DENIAL - CONDITIONAL USE PERMIT NO, 91-35: 1. The proposed three (3) story single family home will have a detrimental effect on the privacy of the adjacent property to the west. 2 . The proposed three (3) story home blocks the views of properties to the east and may result in a reduction of those properties ' value. 3 . The proposed three (3) story home is incompatible with adjacent properties which are two (2) story in height. FINDINGS FOR DENIAL - CONDITIONAL EXCEPTION (VARIANCE) NO. 91-18: 1. Although there is a severe grade differential on the site, the property can be fully developed ithin the existing development standards. 2. The granting of a conditional exception (variance) for building height would constitute - a special privilege as the property can be fully developed within the existing development standards . 3'. The granting of a conditional exception for building height would be detrimental to the welfare of the adjacent conforming properties in the vicinity. The excessive height of the structure blocks views and may reduce the value of the adjacent properties . FINDINGS FOR DENIAL _ COASTAL DEVELOPMENT PERMIT NO, 91-15 : 1. The proposed three (3) story home does not conform to the applicable zoning and development standards contained in the City' s Local Coastal Program and Implementing Ordinances. 1867d ATTACHMENT NO. _,,, § 1094.5 SPECIAL. PROCEEDINGS: Part 3 Note 378 ' n•anded fnr ovw ►vial do nova. iIre,u•od c, rninvd eomo i .inner hurl ou jurisdielinn l`nlifornin l'ueutplmyou•ut lu . ,iii,l,enlpe Ild. nod did not dM,erntlme nwrits, Womtern Air (19711) 127 vid.faptr. 5•10, 57 C.A.ad 21). Lines ine. v. Sobieski (11)81) 32 Cal.ltptr. Trial court's jmlgroeul writ of 7111, 1111 C.A.241 300. mnnilate to compel director of agricultoro Iract that letter discharg(ug senior typ- to Het nsidr his decision revoking petltinn- ist clerk in office of couno clerk stated er's license as aircraft pilot in bumincom of tint site was guilty of mtisronduct in re- peat coalrol wns reversed and Vnse re moving puhlie records from tho files and mnncled in trial court with directions to muliluting and secreting them on various remand ease to director for purpose of dates, whereas is Itearing before county reconsidering the penalty previously inn- civil service vonunisslon evidence was ill' posed, where it was found Hint some of traduced only ns ro what took place on tho charges against petitioner were not nee of the dates• did not require the dis- supported h•v evidence. Wingfield v. t riot court of algteal on al•penl from judg- Director of Agriculture 0972) 11P3 Cal. tuent awarding senior typi..t clerk writ of Rptr.019,29 C:.A.3d 209. mundntc, nftet reversing tho judgment of Proceeding for review of denial by com- the superior eourt, to remand the matter missioner of corporations of permit to to the cmmmissiun for re,•onsideration, clmnge voting rights of shareholders wl'cre. there was n sinlilarit* of facts sur- would he remanded to superior court for rcomdimg removal of the dfic•unlents on all determination whether there cons substan= (of the dates. Pratt v. 1,os Angeles (Noun- tial evidence to support commiseiouer's ty Civil ',ervic i Conttnissio❑ (1952) 238 f iudings, where court improperly deter- P.2d'3,108 C.A 2d 114. § 1094.6. Judicial review; decisions of local agencies; petition; filing; time; record; decision and (tarty defined; or- dinance or resolution (a) Judicial review of any decision of a local agcmcY, other than school district, as the term local agency is defined in Section 54951 of the Government Code, or of any commission, board, officer or agent thi.roof, may be had pursuant to Section 1094.-5 of this code only if the petition for writs of mandate pursuant. to such section is filed `%Vithin the time limits:specified in this section. (b) Any such petition shall be filed not later than the 90th day following the date on which the decision becomes final. If there is no provision for reconsideration of the decision in any applicable provi- sion of any statute, charter, or rule, for the purposes of this section, the decisii> is final on the date it is made. If there is such provision for reconsideration, the decision is final for the purposes of this sec- tion upon the expiration of the period during which such reconsidera- tion can be sought; provided, that if reconsideration is sought pursu- arit to.any such provision the decision is final for the purposes of this section on the date that reconsideration is rejected. (c:) The complete record of the proceedings shall be prepared by Ill ! lo(.-,tl agellc'y of Its volllmis!.,ion, Imard, officer, or. agent which {made the decision and shall be c(r.liverecl to the petitioner within.90 Hays after he has filed a written request therefor. The local agency may recover from the petitioner its actual costs for transcribing or otherwise preparing the record. Such record shall include the tran- Script of the proceedings, all pleadings, all notices and orders, any proposed decision by a hearing officer, the final decision, all admitted 674 Title 1 iWRIT OF MANDATE § 1094.6 exhibits, all rejected exhibits in the possession of the local agency or its commission, board, officer, or agent, all written evidence, and any other papers in the case. (d) If the petitioner files a request for the record as specified in .slihilivisitm (c) wilhill 10 days after the Hale the decision becomes fi- nal as provided in subdivision (b), the time within which a petition pursuant to Section 1094.5 may he filed shall he extended to not later than the 30th day following the date on which the record is either personally delivered or mailed to the petitioner or his attorney of rec- ord, if he has one. (e) As used in this section, decision means adjudicatory admin- istrative decision made, after hearing, suspending, demoting, or dis- missing an officer or employee, revoking or denying an application for a permit or a license, or denying an application for any retire- ment benefit or allowance. (f) In making a final decision as defined in subdivision (e), the local agency shall provide notice to the party that the time within which judicial review must be sought is governed by this section. As used in this subdivision, "party" means an officer or em- ployee who has been suspended, demoted or dismissed; a person whose permit or license has been revoked or whose application for a permit or license has been denied; or a person whose application for a retirement benefit or allowance has been denied. (g) This section shall be applicable in a local agency only if the governing board thereof adopts an ordinance or resolution making this section applicable. If such ordinance or resolution is adopted, the provisions of this section shall prevail over any conflicting provision in any otherwise applicable law relating to the subject matter. (Added by Stats.1976,c.276,p.681, § 1.) Forms See West'x Valiforuin Code Forms, Civil Procedure. Library References Adniinietrntive Lilw' and Procedure C.J.S. Public Administrative Bodies and 0-722. Procedure 193. Notes of Decisions In general I hint poldic eniployrnent relations l,onrd Exhaustion of administrative remedies 2 had ex(-insivit jurixdiction to determine wheiher the unfair pruetiee charges were llstifie11; aud, in view of teadtera' failure to exhtntst their ndlniuintrntive retnedien 1. In general under the ftodda At-(, trial court erred in School hoard'x vnilatentl freezing of granting writ of nnuulute to compel xnpor- tenelmr,' xalaries after bet;inaing or new intend.•nt of district and others to ruixe s,•hunl yenr, while eonirnet nvgotintiuns xnlari., of vertnin tenehers. Atnndor Vul- wure pending, argaubly wtis an unfair Icy I?duentors Axs'u t. Newlin prueiice ill violutiuu of the ltudda Act NO (1970) 151 Cul,Rptr. 724, M U.A.3d 25-1. 675 tj d0CITY OF HUNTINGTON BEACH 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK January 27, 1991 CONNIE BROCKWAY CITY CLERK NOTICE OF ACTION APPEAL OF PLANNING COMMISSION'S DENIAL CONDITIONAL USE PERMIT NO. 91-35 CONDITIONAL EXCEPTION (VARIANCE) NO. 91-28 COASTAL DEVELOPMENT PERMIT NO. 91-15 APPLICATION NUMBER: Conditional Use Permit No. 91-35 - Conditional Exception (Variance) No. 91-28 - Coastal Development Permit No. 91-15 APPLICANT: James Gartner PROPERTY OWNER/APPELLANT: Emad Ali Hassan REQUEST: CUP: To permit an existing third story to remain as well as to allow an approximately 500 square foot addition on the third story. CE- To permit the existing third story structure and the proposed addition to the third floor to exceed the maximum building height permitted in the R1 zoning classification (36.1 feet in lieu of 30 feet). CDP: A coastal development permit is required as the property is located within the non-appealable portion of the Coastal Zone. LOCATION: 4461 Los Patos Avenue COASTAL STATUS: Non-Appealable You appeal was acted upon by the Huntington Beach City Council on January 21, 1992 and your application was: _ Approved X Denied _ Withdrawn Conditionally approved Sincerely yo C/ Connie Brockway, CMC City Clerk CB:me CC: Mark C. Bailey, Attorney City Administrator City Attorney Community Development Director Torn Rogers, Community Development 1057K (Telephone:714-536-5227) BAILEY & SCHULTZ LAWYERS / J A PROFESSIONAL CORPORATION J CC ir 3 (j QJ BRINDERSON TOWERS 19800 MACARTHUR BOULEVARD SUITE 1450 IRVINE, CALIFORNIA 92715 (714) 724-4519 FAX (714) 833-9275 i January 21, 1992 The Honorable Peter Green The Honorable Jim Silva Mayor, City of Huntington Beach 2000 Main Street 2000 Main Street Huntington Beach, CA 92648 Huntington Beach, CA 92648 The Honorable Grace Winchell The Honorable 2000 Main Street Don Mackllister Huntington Beach, CA 92648 2000 Main Street Huntington Beach, CA 92648 The Honorable Jack Kelly The Honorable 2000 Main Street Linda •Moulton Patterson Huntington Beach, CA 92648 2000 Main Street Huntington Beach, CA 92648 The Honorable Earl Robitaille Robert Sangster, Esq. 2000 Main Street Assistant City Attorney Huntington Beach, CA 92648 2000 Main Street Huntington Beach, CA 92648 Gail Hutton, Esq. Mike Adams City of Huntington Beach Planning Department 2000 Main Street 2000 Main Street Huntington Beach, CA 92648 Huntington Beach, CA 92648 Re: Conditional Use Permit No. 91-35 Conditional Exception (variance) No. 91-28 Coastal Development Permit No. 91-15 Applicant: James Gartner Property Owner: Emad Ali Hassan 4471 Los Patos Avenue Huntington Beach, CA 92649 Dear Huntington Beach City Council Members: Emad Ali Hassan hereby respectfully submits this factual and legal narrative for your consideration as you decide the issue relative to his request that you grant him a variance regarding the height of his present and existing six year old home. Assistant � �- :�x- "� " � ^ t I , i Re: Hassan January 21, 1992 Page 2 City Attorney Robert Sangster, who vigorously defended the City of Huntington Beach in full partnership with Mr. Hassan's counsel, requested that we submit both factual and legal information that may assist you in your decision making process. Mr. Hassan believes that once you consider the following information, along with Mr. Reince's position statement, you shall be convinced that there is no merit to forcing Mr. Hassan to expend in excess of $250, 000.00 to modify his home, particularly in light of the logically unsupportable complaints you have heard, and will hear, about the home. As such, Mr. Hassan respectfully requests you grant the variance as recommended by the Planning Department' Staff Report. Very truly yours, BAILEY & SCHOLT , A.P.C. MCB/md enc. as noted I 1 A• 2 FACTUAL BACKGROUND 3 4 Charles Reince ("Reince") built his present Huntington Beach 5 residence in 1983 . In January, 1985, Emad Ali Hassan ("Hassan") 6 applied for permits to build his home three lots downhill from 7 Reince. In late September, 1985, well after construction of 8 Hassan's home began, Reince began his efforts to force the City of 9 Huntington Beach to take action against Hassan relative to the 10 height of his home. 11 Since September, 1985, this matter has been at issue with the 12 Huntington Beach City Council, Orange County Superior Court, Court 13 of Appeal of the State of California, Huntington Beach Planning 14 Commission, and once again, the Huntington Beach City Council. 15 Reince has forced both the City and Hassan to expend hundreds of 16 thousands of dollars during this six year ordeal. 17 During the past six years, the facts have never changed, 18 despite Reince's occasional omissions of some key facts. The City 19 specifically and deliberately issued Hassan a building permit 20 based upon the plans submitted. Those same plans described a 21 three story home that was higher than the present existing 22 structure. After Reince's initial complaint in September, 1985, 23 while the home was still under construction, the City ordered 24 Hassan to modify the structure (Exhibit "A") . Hassan immediately 25 instituted the City's changes and, thereafter, completed his home, 26 receiving a final Certificate of Occupancy from the City. He has 27 2 28 I lived with his family in this home since completion. 2 No one at the City has ever contended that Hassan's permit 3 was issued in error. Rather, Mr. Palin stated there was confusion 4 at the City as to how to measure the height of the structure 5 because Hassan's lot was fairly unique in Huntington Beach due to 6 its sloped topography. The lot slopes downward from front to back 7 and right to left. 8 Although he had only used the Uniform Building Code 9 definition on height once before at 16672 Melville, Mr. Palin, Mr. 10 Godfrey, and Mr. Martinez determined it was appropriately applied 11 to Hassan's home because the City's own Zoning Code did not 12 provide for a method of measuring- the height of a home that was 13 not on level ground. If the Zoning Code were applied, the house 14 would be 30 feet high in front, but not in back because the lot is 15 at different levels. The Uniform Building Code provided a method 16 for measuring height of an entire structure from an objectively 17 set point. The Uniform Building Code as used in this case by Mr. 18 Palin, Mr. Godfrey, and Mr. Martinez, was incapable of 19 manipulation so as to favor either Reince or Hassan. Hassan's 20 home is presently 30 feet high using the U.B.C. measurement. 21 Notwithstanding the City's decision, including a vote by the 22 Huntington Beach City. Council to allow Hassan to' complete 23 construction on his home in its present form, Reince sued the City 24 of Huntington Beach in Orange County Superior Court. Reince 25 attempted to force the city, through court intervention, to pay 26 him damages and tear . down Hassan's home. Reince failed to 27 3 28 c i 1 convince the court of the merit in his position. However, Reince 2 chose to appeal Judge Turner's decision. On April 19, 1991, the 3 Appellate Court of the State of California reversed the trial 4 court and set forth its Order to the City of Huntington Beach as 5 follows: 6 "Because the Hassan design was in violation of the zoning code and Reince threatened 7 suit, the city was 'required to exercise discretion' . (Riggs v. City of Oxnard,. 8 supra, 154 Cal.App. 3d 526, 531. ) It was empowered to resolve the issue by ordering 9 the removal of the offending portion of the Hassan residence or other measures. 10 It could have entertained a request for a variance. 11 We remain unconvinced any action was ever 12 taken by the council. For this reason, and because the council must be allowed latitude 13 in monitoring the city's affairs, we feel official resolution of this matter must 14 first be made by that body. 15 The judgment is reversed. The trial court shall enter an order. directing the Huntington 16 Beach City Council to order the city attorney to proceed with suit to abate Hassan's 17 violation of the zoning code, unless a timely request for a variance by Hassan is granted. 18 The council should be cautioned that findings are necessary to justify the special circum- 19 stances required for a variance. 20 (Gov. Code, § 65906; Topanga Assn. for a Scenic Community v. County of Los Angeles 21 (1974) 11 Cal. 3d 506, 517) 22 The entire Appellate Court Opinion is attached hereto as Exhibit 23 "B" . The California Supreme Court never heard this case nor did 24 it render an Opinion. 25 As you can see from the Order of the Court of Appeal, the 26 City Council maintains its discretionary functions in this case. 27 4 28 1 As such, the City Council may approve a variance for Hassan 2 thereby. concluding this entire matter, provided the approval is 3 based on a finding of "special circumstances" as more fully 4 discussed below. 5 6 REINCE'S ARGUMENTS FOR DESTROYING HASSAN'S HOME 7 8 1. Reince's Principal Complaint is that Hassan's home Blocks 9 his View. 10 The City Attorney can confirm that Reince has no legal right 11 to a view, nor does he have a view easement. The courts have 12 firmly declined Reince on this theory of alleged hardship. 13 However, if one were to consider this to be a factor in 14 deciding whether to issue Hassan the subject variance, other 15 factors need be considered. First, the house located at 4481 Los 16 Patos, and immediately next door to Hassan, almost entirely blocks 17 Reince's view of Hassan's home (Exhibit "C") . The lot located 18 next to Reince, located at 4491 Los Patos will begin construction 19 of a new single family residence in Spring, 1992, that will 20 entirely block Reince's view of Hassan's home, and then some 21 (Exhibit "D") . This property is owned by George Armstrong. 22 In fact, Mr. Armstrong may actually be Reince's true target 23 in this dispute. Reince told Hassan that a victory over Hassan 24 will insure a future victory over Armstrong. This, coupled with 25 Reince's apparent hatred of Arab-Americans provides the motivating 26 force behind Reince's willingness to expend hundreds of thousands 27 5 28 i 1 � 1 of dollars of his own money to have Hassan's home torn down. 2 3 2. Reince Asserts that there was Fraud, Bribery, and/or 4 Payoffs within the City which resulted in Hassan's obtaining his 5 Building Permits and Certificate of Occupancy. 6 7 This is Reince's most outrageous claim. Interestingly, 8 during six years of bitterly fought litigation, Reince has never 9 made such an allegation. This allegation was first uttered at the 10 Planning Commission hearing on November 5, 1991. If his charges 11 have any basis in fact, then why has he never mentioned this 12 before? 13 Reince's assertions of wrong doing are offensive to the 14 entire City and its citizenry. It shows that nothing is beneath 15 Reince and what he will do to have Hassan's home torn down. He 16 has, without any apparent evidence,viciously attacked the 17 reputations of Mr. Palin, Mr. Godfrey, Mr. Martinez, the entire 18 Planning Department, and the City Council itself. But where is 19 the evidence to support his malicious charges? 20 This contention should not be considered in favor of Reince 21 when deciding whether Hassan should receive his variance. 22 23 3 . Reince Believes the Hassan Home is Unattractive 24 25 It has been said that beauty is in the eye of the beholder. 26 However, the fallacy of Reince's contention that the top nine feet 27 6 28 { 1 of Hassan's home should be torn off is irreconcilable with his 2 contention that the home is unattractive and looks like the "Taj 3 Majal". Even if Hassan's home were torn down, there is nothing to 4 prevent him from building a shorter version of the same house in 5 perfect compliance with all applicable codes, albeit at a cost 6 estimated to be $500, 000. 00. 7 This contention is weak, at best, and shows Reince's obvious 8 desperation. Clearly, this is not something that should be 9 considered in deciding the variance. 10 11 4 . Because of the Mass of Hassan's Home. the Noise Factor in 12 the Neighborhood is substantially increased. 13 14 At substantial cost, Hassan commissioned Acoustical Impacts 15 International to perform a study as to whether this allegation had 16 any merit. In it's report (Exhibit "E") , Acoustical Impacts 17 International clearly states that this allegation has no merit. 18 19 5. Reince Contends that Hassan's Application for a Variance 20 is Untimely. 21 This is an argument that defies all logic. The Court of 22 Appeal issued its Ruling on April 15, 1991. Thereafter, Hassan 23 requested the Court to review its decision. Within five (5) weeks 24 of the Court finalizing its Ruling, Hassan had timely applied for 25 his variance. 26 Any contention by.Reince that the application for a variance 27 28 1 should have been made. in 1985 is in contravention of the existing 2 facts. Hassan asked the City in 1985 if he should apply for a 3 variance once Reince began his complaining. However, Hassan was 4 told by the City he did not need a height variance because his 5 house complied with the City's code requirements. 6 This issue is, in fact, a non-issue and another of Reince's 7 "red herrings". 8 9 B. 10 11 THE APPLICABLE LAW SUPPORTS THE ISSUANCE OF 12 A HEIGHT VARIANCE TO HASSAN 13 14 Variances are methods by which a property owner may seek 15 relief from the strict terms of a comprehensive zoning ordinance. 16 A variance is a permit issued to a landowner by an 17 administrative agency (Zoning Administrator, Board of Zoning 18 Adjustment, Planning Commission or the City Council acting as an 19 administrative agency) to construct a structure or carry on an 20 activity not otherwise permitted under the zoning regulations. 21 The statutory justification for a variance is that the owner would 22 otherwise suffer unique hardship under the general zoning 23 regulations. (Govt. Code § 65906] 24 Variances sanction deviations from regulations applicable to 25 such physical standards as lot sizes, building height, floor area 26 ratios for buildings,off-street parking requirements, and similar 27 8 28 f 1 issues. The concept is not that the basic zoning provision is 2 being changed, but that the property owner is allowed to use his 3 property in a manner basically consistent with the established 4 regulations with such minor variations as will place him in parity 5 with other property owners in the same zone. Variances are, in 6 effect, constitutional safety valves to permit administrative 7 adjustments when application of a general regulation would be 8 confiscatory or produce unique hardship. 9 A case which is directly on point to Mr. Hassan's situation 10 is Anderson v. City of La Mesa, (1981) 118 CA 3d 657, 173 CR 572. 11 In Anderson, supra, the zoning ordinance required a five foot side 12 yard, and the city issued a building permit showing a dwelling 13 with a seven-foot side yard. When the owner applied for final 14 inspection, the city refused occupancy claiming that a specific 15 plan ordinance required ten-foot side yards. Compliance with the 16 side yard requirement would have cost more than $6, 000. When the 17 city denied a variance, the owner sought mandate to complete the 18 granting of a variance and an occupancy permit. Affirming the 19 trial court's decision, the court of appeal held that the city was 20 estopped from denying a variance. The court held that the owner 21 was entitled to a variance due to the owner's justified reliance 22 on the building permit, the building inspector's previous failure 23 to object, the sum of money required to comply with the specific 24 plan ordinance, and the fact that no injury would occur to 25 adjacent landowners from the owner's non-compliance. 26 27 9 28 J 1 1. OBLIGATIONS OF THE CITY OF HUNTINGTON BEACH 2 IN DETERMINING WHETHER TO ISSUE THE SUBJECT VARIANCE. 3 4 The Court of Appeal has referenced in its directions to the 5 City of Huntington Beach a California Supreme Court decision 6 entitled Topanga Assn. for a Scenic Community v. County of Los 7 Angeles, 11 Cal. 3d 506 (1974) , and Government Code S 65906. 8 Pursuant to Topanga and Government Code S 65906 the City must: 9 1. Utilise a framework for making principal decisions that preserve the integrity 10 of the administrative process (the City Council forum satisfies this request) ; 11 2 . Make a reasoned orderly analysis of the 12 application and available evidence there- by avoiding random leaps from evidence to 13 conclusion (the staff report analysis and findings satisfies this request) ; 14 3 . Serve a public relations function by en- 15 suring that the administrative decision- making process is careful, reasoned, and 16 equitable (the public council hearing and the staff report process and analysis 17 satisfy this requirement) ; 18 4 . Clearly define and explain the decision, and basis therefore, so as to enable the 19 parties to determine whether, and on what basis, they might seek judicial 20 review and remedy (the staff report pro- vides this information if the Council 21 follows the recommendations therein. Otherwise, the City Council must specifi- 22 cally explain each and every basis for its decision, together with the evidence relied 23 upon and support thereof) ; and 24 5. Apprise the reviewing court of the basis for the City Council's decision. 25 The applicable law goes on to state that there must be ample 26 evidence in the record to support the City Council's findings and 27 10 28 1 decision. This evidence can consist solely of STAFF REPORTS. A 2 city may rely upon the opinion of its staff in reaching decisions 3 and the opinion of staff has been recognized as constituting 4 substantial evidence. Browning-Ferris Industries v. City Council, 5 181 Cal.App. 3d 852 (1986) . 6 As you are aware, the staff report recommends that the City 7 Council approve Hassan's height variance. The staff detailed its 8 findings, including the fact that there are other homes in the 9 neighborhood which exceed 30 feet in height and contain three 10 stories. The Hassan home would comply with the City's zoning code 11 if it presently sat on a flat lot and, furthermore, the City 12 building officials issuing the permit had the right to use the 13 Uniform Building Code in place of the zoning code to determine 14 height. In other words, there exists substantial evidence to 15 support the issuance of the variance, but none to support not 16 issuing the variance. 17 18 2. LIABILITIES INCUMBENT UPON THE CITY OF HUNTINGTON 19 BEACH FOR ITS DECISION REGARDING THE REQUESTED VARIANCE. 20 21 A. If the City Council Approves the Requested Variance. 22 If the City Council approves Hassan's variance, Reince has no 23 legitimate legal recourse provided the City council follows the 24 obligations detailed above, and mandated by the California Courts. 25 In such a circumstance, a decision to approve the variance is 26 within the City's discretion and is solidly based on substantial 27 11 28 1 evidence, which may only be the staff report alone. 2 Reince is simply another complaining citizen without any 3 evidentiary justification to his complaint. Furthermore, to grant 4 the variance will end this matter for all time. 5 6 B. If the City Council fails to Approve Hassan's Variance. 7 In what Mr. Hassan prays is the unlikely event that the City 8 Council votes not to grant him a variance, the City of Huntington 9 Beach shall have substantial monetary liability to Hassan and more 10 costly years of litigation. California law supports Hassan in 11 this instance. 12 First, Hassan may file for his own Writ of Mandate against 13 the City for failing to grant the variance. Such a suit would be 14 based on the doctrine of Equitable Estoppel. 15 16 C. 17 EQUITABLE ESTOPPEL 18 19 The doctrine of equitable estoppel is founded on concepts of 20 equity and fair dealing. It provides that a city may not deny the 21 existence of a state of facts if he intentionally led another to 22 believe a particular circumstance to be true and to rely upon such 23 belief to his detriment. Five elements must be found to justify 24 the use of estoppel. These elements are set forth in La Canada 25 Flintridge Development Corp. v. Department of Transportation, 166 26 Cal. App. 3d 206, 219 .(1985) as follows: 27 12 28 1 11 (1) the party to be estopped must be apprised of the facts; 2 (2) he must intend that his conduct 3 shall be acted upon, or must so act that the party asserting the estoppel has a 4 right to believe it was so intended; 5 (3) the other party must be ignorant of the true state of facts; and 6 (4) he must rely upon the conduct to 7 to this injury. " (Driscoll v. City of Los Angeles, (1967) 67 Cal. 2d 297, 305 8 [61 Cal. Rptr. 661, 431 P.2d 245] ) . 9 The fifth element requires the plaintiff to demonstrate that the injury to his 10 personal interests if the government is not estopped exceeds the injury to the 11 pubic interest if the government is estopped. Thus an estoppel will not be 12 applied against the government if to do so would effectively nullify "a strong 13 rule of policy, adopted for the benefit of the public, . . . " (County of San 14 Diego v. Cal. Water, Etc. , Co. (1947) 30 Cal. 2d 817, 829-830. 15 Equitable estoppel may be applied against the government 16 where justice and right require it and "in the considered view of 17 a court of equity, the injustice which would result from a failure 18 to uphold an estoppel is of sufficient dimension to justify any 19 effect upon public interest or policy which would result from the 20 rising of an estoppel" City of Long Beach v. Mansell, 3 Cal. 3d 21 462, 496-497 (91 Cal. Rptr. 23, 476 P.2d 423) . 22 As a matter of common sense, a home builder should be able to 23 rely on the city division of land development to furnish accurate 24 information as well as valid building permits. These are among the 25 reasons for which the office was created and its agents employed. 26 It makes no sense to hold that a person may rely on the accuracy 27 13 28 I of information provided by a city official and at the same time, 2 hold that such a person cannot rely on the accuracy of a building 3 permit issued by the same agency. 4 If a home builder cannot rely on an official building permit 5 issued by the city, there is little .reason for requiring one, 6 unless it is viewed as merely another mechanism for gathering 7 taxes. Logic tells us, however, that the issuance of a building 8 permit is an official city action by which approval is given a 9 builder to erect a structure of the type and at the place 10 approved. 11 In this case, the City of Huntington Beach is the only 12 governmental body empowered to grant or deny building permits. 13 Thus, Hassan was forced to obtain such permits from the City's 14 designated agency. In addition, Hassan was required to have 15 inspections by a city building inspector before construction could 16 proceed beyond the "foundation stage" and before occupation. 17 Hassan had no other choice. If Hassan was to rely on anyone, it 18 must be upon the City agency. 19 The issuance of the building permit inherently implies that 20 the issuing agent has verified that the proposed structure is in 21 compliance with applicable code provisions. Moreover, in this 22 case, the subsequent inspection and approval by the City inspector 23 reinforced Hassan's reliance on the validity of the building 24 permit. Attached hereto as Exhibit "A " is a true and correct 25 letter from the City of Huntington Beach. 26 Hassan dealt directly with the City through its agents. By 27 14 28 1 so doing, the City agents undertook a duty to use reasonable care 2 in performing that service. 3 Further, the permit and inspection requirements do not create 4 a duty of care applicable merely to the public in general. 5 Rather, they apply to a limited class of citizens, the builders. 6 When a member of that class justifiably relies on the accuracy of 7 the permit and inspection and subsequently suffers an economic 8 loss due to the inaccuracy of the agents, the City has breached a 9 duty that demands redress. 10 "The liability of one who is under a public duty to give the information extends to 11 loss suffered by any of the class of persons for whose benefit the duty is created, in any 12 of the transactions in which it is intended to protect them. " 13 Restatement (Second) of Torts § 552 (3) at 127 14 (1977) . See also Wilber v. Western Properties, 22 Wash.App. 458, 463-64 15 16 The duty to provide accurate information should be no 17 different than the duty to issue a valid permit. 18 Hassan requested a building permit and an inspection from the 10 City. In responding to that request, the City had a duty to 20 Hassan to exercise reasonable care in issuing a permit. The duty 21 to issue a valid permit may be characterized as follows: 22 " [T]here is nothing discretionary about the 23 duty. The response is in the nature of a 24 'ministerial' or 'operational' function; one 25 of which each member of the public has a right 26 to expect will be made accurately. " 27 15 28 A-_„s•ri 1 See Gordon v. Holt, 65 A.D.2d 344 , 412 N.Y.S. 2 2d 534 (1979) 3 4 D. 5 THE CITY OF HUNTINGTON BEACH WOULD 6 BE LIABLE TO HASSAN FOR MONETARY DAMAGES. 7 8 The courts have strictly construed the broad immunity 9 provision of the Tort Claim Act and carved out exceptions to its 10 application. Despite the broad rule of immunity set forth in the 11 Tort Claim Act, Govt. Code S 910, etc. , the California Supreme 12 Court has adhered to the view that in governmental tort case, "the 13 rule is liability" and "immunity is the exception", and declared 14 that unless and to the extent that the Legislature has clearly 15 provided for immunity, the important societal goal of compensating 16 injured parties for damages caused by willful or negligent acts 17 must prevail. Ramos v. County of Madera (1971) 4 Cal.App. 3d 685, 18 692, 94 Cal. Rptr. 421, 484 P.2d 93 . 19 The court refused to apply the doctrine of estoppel but 20 nonetheless awarded compensation as a result of official action in 21 People ex rel Dept of Pub. Works v. Ryan Outdoor Advertising, 22 Inc. (1974) 39 CA 3d 804, 114 CR 499. The Department of Public 23 Works ordered a sign owner to move his signs outside the highway 24 right-of-way. The department issued a permit for the new 25 placement under its practice of considering such involuntary moves 26 as maintenance rather .than new placement. The department later 27 16 28 11 I`4& 1 changed its guidelines, concluded that the movement was a new 2 placement, and ordered removal on the ground that placement within 3 660 feet of the highway without a validly issued permit 4 constituted a nuisance. The court held that the department was 5 not estopped from requiring removal. However, because 6 compensation would have been required for termination of the signs 7 had they not been new placements, the department was required to 8 pay compensation for their removal. The result is in the 9 tradition of cases holding that a government entity cannot command 10 abandonment of a nonconforming use and then claim that the right 11 to continue the use has. been lost. 12 13 E. 14 CONCLUSION. 15 16 Based upon the foregoing facts and law, Mr. Hassan 17 respectfully submits the only reasonable and financially 18 responsible manner for the City Council to vote on this matter is 19 to GRANT the requested variance as to the height of Emad Ali 20 Hassan's existing six year old home. 21 Dated: January 21, 1992 22 BAILEY & SCHULTZ, A.P.C. 23 24 B � MARK C. BAIL 25 Attorneys r Emad Ali Hassan 26 27 17 28 I CITY OF HUNTINGTON BEACH P.O. BOX 190 CALIFORNIA 92648 DEPARTMENT OF DEVELOPMENT SERVICES BUILDING DIVISION(714)536.5241 PLANNING DI", 'RCN 014)536.5271 r ' December 13, 1985 Mr . Hassan 4471 Los Patos Huntington Beach, CA Dear Mr . Hassan: The Hasson residence located at 4471 Los Patos has been reviewed as to the overall height . _For the purpose of this height determination , the city will use the adopted definition within the 1982 Uniform Building Code to establish a datum plane. This datum plane will be an elevation of 37 feet within five feet of the front yard area between the existing garage and Los Patos St . The flat portion of the roofed area of the thrid story should be a maximum of thirty ( 30 ) feet in height . This will require the existing flat deck roof area to be lowered by one ( 1 ) foot eight ( 8 ) inches to comply with the maximum code provision of thirty ( 30 ) feet in height for a single family residential dwelling. The city will allow this modification to take place based upon the review and approval of revised plans . Construction may continue on all- other purl- ions of the structure. Should you wish additional clarification Ihis , do not hesitate to call Mr . Godfrey at 536-5271 . Cordially, Glen Godfrey . Deputy Director Development Services • JWP:GG: lp ( 3903d ) i r CHAPTER 4 • . i _rF Definitions and Abbreviations Section 408—GRADE Section 409—HABITABLE SPACE (Adjacent Ground Elevation) Sec,409. ' See. 401t. HABITABLE SPACE(ROOM)is it space in a structure for living. GRADE(Adjacent Ground Elevation)is the lowest point of eleva- sleeping•eating or cooking. Bathrooms.toilet conipartments,closets, tion of the finished surface of the ground,paving or sidewalk within the halls, storage or utility space, and similar areas, are not considered area between the building and the property line or,when the property habitable space. line is more than 5 feet from the building,between the building and a line 5 feet from the building. Q■ We typically have houses constructed which contain ■ unfinished basements or lower levels. Would these Q■ May a retaining wall be used for the purpose of raising basements or usable portions thereof be considered as habitable the effective elevation of finished grade? space? A■ The use of a retaining wall to raise the elevation of the /� ■ If the space had closets,floor covering,electrical wiring ■ finished surface of the ground would be permissible, A■ and other facilities in place which make the space usa- provided the outside face of the retaining wall is at least 5 feet from ble for living,sleeping,eating or.cooking,then thespace would be' the exterior wall line of the building, or a( the property line, if a considered habitable space. If the area or space has bare walls; , lesser distance. floors and ceilings(which is the common ebnditi'jn in which most Likewise, the finish tirade may be raised by the.use of built-up new homes are finished), we would not consider the space to be grade, provided the built-up areas are at least 5 feet wide. Case 1 habitable.The space most commonly is used for storage or utility. and Case 11 illustrate these two conditions. - ' J < < �. Section 409—HEIGHT OF BUILDING Sec.409. Or s•o MN. HEIGHT OF BUILDING is the vertical distance above a reference �\ OR IL IF CLOSER datum measured to the highest paint of the coping of a flat roof or to the z Z deck line of a mansard roof or to the average height of the highest gable of a pitched or hipped roof. The reference datum shall be selected by C either of the following•whichever yields a greater height of building: tZ t I. The elevation of the highest adjoining sidewalk or ground sur- face within a 5-foot horizontal distance of the exterior wall of the `< " building when such sidewalk or ground surface is not more than L. 10 feet above lowest grade. m 2. An elevation 10 feet higher than the loosest grade when the ASE I sidewalk or ground surface described in Item I above is more 9 than 10 feet above lowest grade. The height of a stepped or terraced building is the maximum height of any segment of the building. / ■ Could you graphically illustrate ho",to locate the refer ■ ence datum mentioned in Section 409 and used for . 5•0-MN.OR determining the height of a building? R IF CLOSER 5'-0-MN.OR R.IF CLOSER A■ In the following drawings, Case I corresponds to Item ■ No. I under the definition for"height of building"while Case II relates to Item No. 2. t t i In both Cases I and 11,elevation B represents the highest ele%ati;m f t within 5 feet of the exterior wall of a building, and elevation A represents the lowest elevation within 5 feet of the exterior wall of a building. CASE 11 When elevation A is less than 10 fee helow elevation B, the datum from which to measure the height of a building is elevation B • and should be determined as indicated in C ise f. When elevation A is more than 10 feet hefo%% elevation B. a datum which is 10 feet above elevation A�s fit.t•determined. The height of the building is then Measured from this last established elevation as indicated in Case II. .-- --�-� � ' \ -7 _ . ! .. .. _._k r � `` / �/- �` �C�► �� �. ��'�` � ':� �,� N ---- �-- �`_, . �� _ .�, �f r` J 7 =I W DATUM S 9 •- cI S MORE THAN 10"-11- LESS THAN 10' A CASE CASE DETERMINATION OF BUILDING HEIGHT IN FEET J � 2 G L !Y Section 420—STORY • In calculating the number of stories in a building, the z Q a rode makes reference to the 'total penmeter'• of the OSec- .420. building.What would be the total perimeter for the hill,ide dwell- tz STORY is that portion of a building included between the upper ing illustrated? '2 surface of any I110r and the upper surface of the fluor next above•except CL that the topmost story shall be that portion o( a building included ■ . The intent of the language"total penmea'r" is to define between the upper surface of the topmost floor and the ceiling or roof An the outer limits of any particular level under considera w . , above. If the finished floor level directly above a usable or unused lion. Therefore, in the case depicted, the total perimeter for the under-floor space is more than 6 feet above grade as defined herein for lowest level would be bounded by the relaining %%all. the down- 10 more than 50 percent of the total perimeter or is more than 12 feet above slope exterior wall and the east and west exterior%,,ills. I he dwell- grade as defined herein at any point,such usable or unused under-floor ing illustrated has two stories and basement tut the downslope space shall be considered as a story. segment. I i� COURT OF APPEpl.4TH F L € DDIST. OIV. 3 A PP 1 0 1991 Deputy Clerk NOT TO BE PUBLISHED IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE CHARLES O. REINCE, ) G0079.73 Plaintiff and Appellant, ) (Super.Ct.No. 48-17-04) ) V. ) O P I N I O N CITY OF HUNTINGTON BEACH, ) Defendant and Respondent. ) EMAD ALI HASSAN, ) Real Party in Interest. ) APPEAL from a judgment of the Superior Court of Orange County, James K. Turner, Judge. Reversed with directions. Drummy Garrett King & Harrison, Richard S. Ruben, Jeffrey M. Richard, Asaki & Carson and Richard C. Carson for Plaintiff and Appellant. Robert Sangster, Assistant City Attorney, for Defendant and Respondent. Reid, Schultz & Bailey, Bailey & Schultz, Mark C. Bailey and Robert Schultz for Real Part in Interest. Charles O. Reince appeals the denial of his request for \� a writ of mandate compelling the City of Huntington Beach to order Emad Ali Hassan to lower the height of his residence. We conclude the initial building permit was invalidly issued. Thus, the city council must order the city attorney to proceed with an action to bring the Hassan structure into compliance with the zoning code unless Hassan applies for, and is granted, a variance. I In 1978, Reince purchased an ocean view lot in Huntington Beach. He built his home with views extending over the existing roofs of the homes below him and those he anticipated would be built in the future. Thereafter, Hassan purchased a lot below Reince. With the aid of an architect, Don Hartfelder, and a contractor, Frank Mirjahangir, designs for a three-story home were prepared and presented to the city for a building permit in January 1985. Sergio Martinez, senior plan checker for Huntington Beach, raised the issue of the height of the building which appeared to exceed the 30-foot limitation, as defined in the zoning code. New drawings were submitted in May and were signed by the structural plan checker. Martinez, apparently still concerned with the elevation and overall height of the residence, conferred with his superior, Glen Godfrey, and the department director, James Palin. After several meetings, the plans were approved on the 23rd and a building permit issued to Mirjahangir. 2 r j Reince had noticed the home under construction, but not until September did he realize it appeared to extend beyond two stories and that it would obstruct his view. He measured the house himself, determining it was eight to nine feet over code. At the city building department, the counterperson pulled the Hassan plans and said, "Well, we have a problem here. " . Through his attorney, Richard Carson, Reince lodged a complaint with the city. Godfrey agreed to check further. On September 30th, Reince, Carson, Martinez, Godfrey and Robert Sangster, assistant city attorney, met at the city offices. They discussed the zoning height requirements; Godfrey said he would "get back" to Reince "with examples of similarly situated situations. " He did not. Carson demanded cessation of construction. Palin, Martinez and Godfrey again reviewed the approved plans. By letter of October 9 to Hartfelder, the city requested changes in the plans to bring the residence into compliance with the city code.l A meeting was held on October 16 with Hassan's attorney, Richard Fine, about the necessary revisions. New plans were received on October 11. On November 5, Palin ordered work 1 It stated, in pertinent part: "After a detailed examination of the drawings, Mr. Palin, and Mr. Godfrey, and I arrived at the conclusion that because of confusion in reading the drawings, the maximum building height required by our code was misinterpreted when the drawings were approved. The error must be rectified to bring the building into conformance. " When questioned, during a deposition, about the "confusion, " Palin replied, "It did not take long in our review of it to make a determination that the permits had been issued in error, that improper dimensions had been used." 3 *' stopped on the property until he could meet with the architect; that meeting occurred on November 7. Revised plans were submitted on November 13 . At a city council meeting on the 18th, Reince spoke against the continued construction; the council ordered a "study" of the situation. Reince had two meetings with the city administrator. One, on December 5, was attended by Palin, Hassan and Hartfelder in an attempt to solve the problem. And, on December 9, Palin requested a legal opinion from the city attorney as to whether the zoning ordinance prevailed or whether the city could employ the height definition contained in the Uniform Building Code2 2 The zoning code provides: "The maximum building height shall not exceed thirty (30) feet, except as provided herein." Under a separate section, "Building height" is defined as "the vertical distance from the lowest elevation of the ground immediately adjacent to the building to the highest point of the roof. " The' code further provides: "Where, however, this code imposes a greater restriction of regulation upon buildings or structures, and the use of them, or the use of land or premises . . . than are imposed or required by other ordinances, rules or regulations, the provisions of this code shall govern. " The UBC, on the other hand (which the state housing authorities require cities to include) , was adopted in the building code "for the purpose of regulating" the construction of all buildings in the city "and repealing all ordinances and parts of ordinances in conflict herewith. " It provides: "Height of Building is the vertical distance above a reference datum measured to the highest point of the coping of a flat roof or to the deck line of a mansard roof or to the average height of the highest gable of a pitched or hipped roof. The reference datum shall be selected by either of the following, whichever yields a greater height of building: (1] 1. The elevation of the highest adjoining sidewalk or ground surface within a 5-foot horizontal distance of the exterior wall of the building when such sidewalk or ground surface is not more than 10 feet above lowest grade. (1] 2. An elevation 10 feet higher than the lowest grade when the sidewalk or ground surface described in Item 1 above is more than 10 feet above lowest grade. (1] The height of a stepped or terraced building is the maximum height of any segment of the (continued. . . ) 4 y . j (UBC) , adopted by reference in the city building code. Use of the latter could make a difference of several feet on sloped terrain. The attorney's reply stated, "the regulations must be interpreted to best express the legislative intent. As is noted below we do not find that the regulations conflict. " It continued, "The codes should be interpreted together to complement one another, and the U.B.C. definition is obviously better thought out, is more comprehensive in that it covers more of the possible variations of the terrain and topography than does the city ordinance and therefore should control. That is, the U.B.C. definition expands upon, explains and interprets the ordinance. . . . [F]ollowing the rule that each regulation must be given credence and weight, the better analysis is that there is no conflict and that the UBC calculation of 30 feet is correct. " In conclusion, "The single most controlling factor is what is called 'administrative interpretation. "' In any- event, "once having taken a position by issuing -a permit, the city is in no position to red-tag the project or recall the permits . . . . " At trial, Palin testified he did not consider whether the UBC definition had been used for single family residences on other occasions. In fact, it had seldom, if ever, been employed. Palin then visited the site again, compared actual measurements with the plans, and determined the edifice was one foot eight inches higher than shown on the plans. By letter to Z ( . . .continued) building. " 5 • t 1 � the architect, the city informed Hassan the UBC measurements \ would be used and he was in violation of the code, i.e. , one foot, eight inches over the 30-foot restriction. Hartfelder was requested to again revise the plans. Following two more submissions of revised plans, approval was given. Meanwhile, in mid-December, Reince was informed by phone of the decision to use the UBC measurement method. He objected, by letter, to the city council but received no response. In January 1986, the city council's staff report on the Hassan problem was submitted. At the February council meeting, Reince and his attorney again spoke during the open session in opposition to continued construction of the Hassan residence. Fine and Hassan defended the project. The council took no action. On February 19, Reince filed suit against, inter alia, Huntington Beach and Hassan, seeking (1) -an injunction, (2) a writ of mandamus to compel enforcement of the zoning code height limitation and abatement of Hassan's unlawful use in violation of that code, and (3) declaratory relief. A temporary restraining order was issued, with hearing set for March 11. The preliminary injunction was denied without prejudice. The minute order provides: "No showing of reasonable probability of success on the merits. " Reince insists further attempts to obtain an injunction "would have been useless, since work had essentially been 6 completed on the residence. " The declaratory relief action was voluntarily dismissed by Reince who concluded that "no valid or adequate remedy at law was available to him. " Nearly finished at that point, the Hassan home construction continued. Certificates of completion and occupancy were issued by the city. At a hearing in November 1988, evidence was presented on Reince's writ petition, his only remaining cause of action, which the court denied. Reince's expert stated only the zoning code measurements could be employed in this situation. It was his understanding the UBC height limitations were "concerned with fire protection and was a function of the size and height of a building, the ability to safely exit the building in fire emergencies, the ability to rescue. " While a building official for the City of Huntington Beach from 1972 to 1978,. he was unaware of any. use of the UBC height definition being applied to decide if a zoning provision had been complied with. He had not, however, been responsible for applying the planning and zoning codes to Huntington Beach projects. Nor had he remained conversant with adaptations of the codes since that time. Hartfelder, as well, was qualified as an expert in the building field. He had served on the architectural review board for Huntington Beach and was presently sitting on the appeals board. He testified he used the UBC when preparing the original plans as "a methodology to show how the 30-foot height should be measured. " During his meetings with Palin and Martinez, they 7 discussed both codes. He eventually lowered the roof by one foot and eight inches to fully conform with the UBC method. Although he had designed many homes in the area, he had not previously used the UBC. That, however, was because the others were built on flat ground, negating any need for an alternative measurement. Hartfelder stated the majority of Huntington Beach is on flat ground, but the Hassan lot sloped downward approximately nine feet from the street: "This is unique to that area. " It was . for this reason he employed the UBC method of measuring height. Palin, in a deposition, admitted the UBC could and should be used where there is severe sloping. The court found the original building permit was valid, using the UBC "as a methodology in conjunction with the City's Zoning Code definition of height" due to the topography of the site. The UBC's "height definition and the `Zoning Code definition are not in conflict with each other as the U.B.C. is merely a 'methodology' or guide to the Zoning Code definition for use on severe topographical features. " II Reince contends city officials failed to perform their required duty in allowing completion of the Hassan residence through the expedient of sanctioning the UBC measurement procedure.3 He insists the city council had no discretion to do 3 Reince insists principles of statutory construction preclude application of the UBC method of measurement. First, he states the more specific regulation should control, which he asserts is the zoning code description of height. However, the (continued. . . ) 8 anything other than order abatement of the nuisance. The zoning code forbids erection of buildings in excess of the stated height limit. Other sections charge those issuing building permits with the responsibility for enforcement of the code and declare any permit issued in conflict with the code to be null and void. Moreover, any building which is constructed but is not in compliance with the code is "unlawful and a public nuisance, and the City Attorney shall, upon the order of the City Council, immediately commence action or proceedings for the abatement and removal" of the offending structure. (Art. 902, § 9022 '. ) The court found the original building permit was issued using the UBC definition and was valid. It further stated the UBC had been used "on numerous occasions." However, the evidence is that all personnel involved felt "the permits had been issued in error. " Only months later, when the residence was virtually finished, was the more lenient UBC definition accepted, in an 3 ( . . .continued) UBC description is much more detailed, taking into account as it does varying degrees of slope on a lot. Second, Reince asserts the more recently adopted regulation should control: "In light of the fact that the UBC in its entirety was adopted by mere reference for many years, the Zoning Code definition which was adopted in 1975 was more recently adopted. " However, both have been readopted and renumbered on several occasions, diluting the thrust of this argument. . Third, Reince points to the city attorney's written opinion on the matter, which stated the most important factor was past administrative interpretation. He states Palin "completely ignored this factor in deciding to apply the UBC." Past history does indicate the zoning code method was most consistently, if not always, used. 9 Iattempt to retroactively validate the original permit. More- over, the uncontradicted evidence shows the UBC had been used only one or two previous times, and never for a residence. The court also concluded the city was estopped .to enforce its zoning code because Hassan had obtained. a "vested right" to build based on issuance of the valid permit. But the permit was invalid at its inception; and "the City cannot be estopped to deny the validity of a permit or other representations respecting the use of property issued or made in violation of the express provisions of a zoning ordinance. " (Pettitt v. City of Fresno (1973) 34 Cal.App.3d 813, 819.) Additionally, we note the height-measurement provisions of the building code and zoning code are decidedly at odds. The latter has a flat outside limit of 30 feet. As a consequence, it is difficult to imagine, absent an amendment to the zoning code incorporating the building code definition in prescribed circumstances, how they can be deemed "not in conflict with each other. " This is particularly true because "[a] lthough building codes and zoning regulations are traceable to the police power, building codes are designed to protect the public welfare from a wholly different standpoint than that of zoning laws. Building codes deal with the safety and structure of buildings; they regulate details of construction, use of materials, and electrical, plumbing and heating specifications, all contingent upon the type of occupancy. The purpose of the State Housing Law is to provide for statewide uniformity in such regulations. 10 zoning ordinances, on the other hand, regulate use of buildings, structures and lands as between various purposes; the location, height, number of stories and structures; the size of lots and open space requirements, etc." (Taschner v. City Council (1973) 31 Cal.App.3d 48, 60, emphasis added. ) Riggs v. City of Oxnard (1984) 154 Cal.App. 3d 526 is instructive. There, the appellant operated his transmission business under a five-year variance granted to him by the city in 1968. In 1982, the city suddenly announced the original variance was questionable and now could not be renewed; appellant relocated. Meanwhile, in that same year, Oxnard Transmission was erroneously given zoning clearance. Appellant complained and Oxnard Transmission threatened litigation against the city if it took any action. In response, the city deferred prosecution of Oxnard Transmission while examining the possibility .of amending the code to allow transmission activity in the area under special permit. The amendment passed; Oxnard Transmission could continue its operation only if it applied for and received a special permit. "The respondent city is not . . . mandated to [order the city attorney to prosecute] for a zoning violation, but may logically resolve a violation in other ways, as it did in this case. " (Id. at p. 530. ) Because the Hassan design was in violation of the zoning code and Reince threatened suit, the city was "required to exercise discretion. " (Riggs v. City of Oxnard, supra, 154 Cal.App.3d 526, 531. ) It was empowered to resolve the issue by 11 i ;rordering the removal of the offending portion of the Hassan residence or other measures. It could have entertained a request for a variance. We remain unconvinced any action was ever taken by the council. For this reason, and because the council must be allowed latitude in monitoring the city's affairs, we feel official resolution of this matter must first be made by that body. The judgment is reversed. The trial court shall enter an order directing the Huntington Beach City Council to order the city attorney to proceed with suit to abate Hassan's violation of the zoning code, unless a timely request for a variance by Hassan is granted. The council should be cautioned that findings are necessary to justify the special circumstances required for a variance. (Gov. Code, S 65906; Topanga Assn. for a scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517. ) SONENSHINE, ACTING P. jr. WE CONCUR: CROSBY, J. MOORE, J. 12 4471 LM 11ftQ!MOUDOM Mil us rmm PCIQOI 1 oURllb EL 72W _ ---- use or Garr to Mamas- —� ou EL QIA 1 EL GLX OEL♦7�' ------------------------ LOS PATOS AVE. i m n: EL G&W ' I El. ea.a 0 Q M0 - I EE. sY.ro 0 � I- EL3&lr EL J00 OnIffilp " MIMI 4461 LOS PAM RESIDENCE � nOQ N7) lOB PAiDC RESIDENCE --�INOICATES nnURE S1JMW- MARINA VIEW PLACE }�t-_ ��15[pej �. y ��i7- k`'h;:.h:_r_ J a.fie•- .. `y 9 ' ! �?` .1i�:3•3'l:' � ./Yft�[-r+ n1 34^171."'r E ' _ MI ai 0--le;-21d��?- •_�.8— -� .'AMU +..t�y_�1 •3�a.�iId� Mr. Hassan's Residence 4461 Los Patos Drive Huntington Beach I A 1 This view of Mr. Reince's house was taken from inside the home under construction that is situated between Mr. Reince's and Mr. Hassan's houses. The camera's position is about 10 feet below the roofline of this new home; as you can see from this angle, most of Mr. Reince's view is blocked by this new home under construction. The wood -and machinery in the foreground is sitting on a pad where another home will be. This second new home will be two storeys plus a roof line; it will almost completely obliterate Mr. Reince's view. ACOUSTICAL IMPACTS INTERNATIONAL P.O. Box 7426 - Newport Beach, CA 92658 Telephone (714) 549-4092 - Fax (714) 549-9423 L1/1581 November 18, 1991 Mr. Ali Hassan 4461 Los Patos Huntington Beach, CA, 92649 Dear Mr. Hassan: At your request, Acoustical Impacts International (AII), visited your property-residence located at 4461 Los Patos, in the City of Huntington Beach California to analyze the noise reflections from your house on residences across Warner Avenue. The results of our research show that is impossible that your house would increase the noise at the residence across Warner Avenue. . Simple acoustical ray tracing demonstrates your building was fortuitously placed to offer protection to the mentioned residences as compared to what could have occurred with other building arrangements. The plan view shows all sound rays are being deflected away from the residences across Warner, not back to it, (Refer to Exhibit 1). Please note, sound only travels along straight lines which reflects the same as light rays mirroring from planar surfaces with the angle of reflection being equal to the angle of incidence, where the angles a, and % are measured from the normal to the plane of reflection, (i.e., building surface). Refer to Exhibit 2, L1/1581 2 Further examination of the sectional view shows that the sound rays are also being reflected upward and away from the residence across Warner Avenue. Same explanation for sound reflection from the former paragraph applies here. Refer to exhibit 3. For all these reasons we can determine that there is no substance for any claim of this nature. If you have any further question, please call us. Sincerely Ciro Elgue General Manager Acoustical Consultant Exhibits L1/1581 Exhibit 1 Warner Avenue Hassan's Residence --► Sound U/1581 Exhibit 2 r r r r r r Incident ray ; Reflected ray r a 1 i a2 r r r L1/1581 Exhibit 3 Hassan's Residence Warner Avenue -► Sound lic'the undersigned residence of Huntington Beach believe that the home of �Ir. Ali Hassan located at 4461 Los Patos in the cite of Huntington Beach is a JeTinite asset to both the neighborhood and the commmity. h'e also believe that the height of this residence is not a negative factor in any way. "this residence sits at the foot of Los Patos Full with homes on both sides of it having no negative effect on the neighborhood whatsoever, on the contrary this home is an asset to its neighborhood, the comunity and to the city of Huntington Beach. KANIF ADDRESS z �2 1 .i. 7rvOd� 5. C_..tr k t - . 10. Pla(-L l 5 �I v ivy < <�r•=��'r'�.�.�'i� L�r � 11. 12. CA 1J. x6r �Ll�i,�� 6 ¢� L 14 ?r;_�e�cl�. e.s�� Fa. �I�161 1os PoJos Al. Min+; no on Be "CO'ni ail �IIt' LIYk Lds P91 Q4 ;14 � 16. yV(e/ Lot P4 s cdy� 17. < ' k IL 18. 19 2p Fj OWNERSHIP LISTING SERVICE 917 Glenneyre Street, Suite 7 Laguna Beach, California 92651 714/494-6105 FAX: 714/494-7418 NAME ADDRESS DATE OF PURCHASE Charles & Susan Reince 17211 Marina View P1 04-27-83 Carolyn Young 17201 Marina View P1 10-19-8.9 Michael & Debra Tebrich 17202 Marina View P1 03-14-83 Susan & William Winn 17192 Marina View P1 09-04-75 Floyd & Naomi George 17212 Marina View P1 08-21-78 Gary & Judith Potter 17232 Marina View P1 07-25-74 Sandy Halpin 17182 Marina View P1 03-29-72 Rctert Conway 17172 Marina View P1 04-24-67 John & Deborah Westermeyer 17142 Marina View P1 07-22-87 P.S. Cherg 17181 Marina View P1 04-24-90 Donna & Peter Clark 17121 Sandra Lee St -- 01-19-76 Joseph_- Glenon. ._„.._ .- 1.7141. Sandra..Lee St- ..._.... 1975. ... .......... _.._....,. ..... .. Elma & Donald Walter 17131 Sandra Lee St 06-03-81 Donald & Donna Klein 17186 Courtney Ln 07-25-86 Anita Scrofani 17206 Courtney Ln 10-29-87 Jeanette & Ernest Ramirez 17192 Courtney Ln 08-05-91 ' lliam Sosnowski 17198 Courtney Ln 01-09-76 Carol Wood 17226 Courtney Ln 06-05-86 joette Koelsch 17214 Courtney Ln 07-13-90 Robert Lujan 17092 Courtney Ln 01-25-82 John & Pamela Crenn 17232 Courtney Ln 02-07-90 Robert O'Neill 17150 Courtney Ln 10-06-89 Dana Barton 17170 Courtney Ln 05-21-85 PAGE 2 Ken Spiker 17130 Courtney Ln 03-13-90 Harold & Doris Lynn 17122 Courtney Ln 04-01-86 Jeffrey Statton 17072 Courtney Ln 12-19-83 Matt & Maureen Mitchell 17042 Courtney Ln 08-03-87 Tom Dalton 17032 Courtney Ln 08-07-73 Geraldine Bennett 17164 Courtney Ln 08-09-71 Katherine Kramer 17041 Courtney Ln 01-11-89 William Matheus 17091 Courtney Ln 01-08-90 Bill Morrison 17121 Courtney Ln 03-27-89 Max ( Can't read last name) 17101 Courtney L•n 08-20-87 y RENTER 1 P P Klein 16971 Courtney Ln 05-21-85 RENTER Donna George 17178 Courtney Ln 06-06-91 Pat Roseberry 17051 Courtney Ln 10-10-89 Celeste Whipple 16991 Courtney Ln 07-08-83 Mary Poy 17022 Courtney Ln 01-05-89 Lisa Shafer. 17181. West ort Dr 11-18-88 Dianna Haddock i7152 Westport Dr 05-01-87 Narmanjean & Eric Janssen 17087 Westport Dr sold home 06-18-91 to Norma Gibbs.she didn't •ion petition Mary Ann Thaxton 17141 •Westport Dr 07-11-72 Douglas Engum 17101 Westport Dr 1975 Anne La Conde 17062 Westport Dr 05-31-79 John Erickson 17072 Westport Dr 01-14-82 Mr Kuraoka 17122 Westport Dr 03-13-90 S Schoenfeld 17105 Westport Dr 02-05-86 John Kerkes 17171 Westport Dr 09-28-87 off map PAGE .3 Sally & Larry Price and 17191 Marina View P1 02-02-87 Lisa & Daniel Denny R.E. & Marilyn Willsie 17187 Roundhill Dr 04-01-76 Catherine Steuber 17071 Courtney Ln 11-03-78• Terry Nielsen 17001 Courtney Ln 10-07-86 Michael Cavallo (renter) 17220 Courtney Ln 1975 Kenneth Jackson 17111 Westport Dr 09-25-80 Stuart Shorr 17179 Roundhill Dr 10-26-84 Diane Skelton 17131 Roundhill Dr 02-25-91 Sandy Nincum(renter) 17111 Roundhill Dr 10-13-77 Joseph Falcon 17155 Roundhill Dr 12-17-85 Gail Stoter 17147 Roundhill Dr 08-02-89 Jack Smiley 17139 Roundhill Dr 05-19-89 George & Carole Garrett 17163 Roundhill Dr 02-08-72 Theodore Patten 17127 Roundhill Dr -- 11-17-82 Thomas Skelton .-.. _ _1:7131.Roundhil1._Dr.__.. .. 02-25-.9.1 Jay Jeffries 17161 Westport Dr 04-10-84 Loc Nguyyen 17132 Westport Dr 02-21-91 Robert & Christina Yates 17112 Westport Dr 07-15-76 Theresa Winfrey 17092 Westport Dr 10-09-87 Ron Stiles 17021 Malta Cir 10-21-76 Chris Libs (renter) 17001 Malta Cir 08-21-73 Samantha Good 17051 Malta Cir 10-18-85 Robert Mc Gee 16991 Malta Cir 11-14-86 R C Crooks 17101 Malta Cir 12-05-75 J 0 Leverenz 17071 Malta Cir 03-27-89 Peter & June Economakos 17031 Malta Cir 06-26-76 PAGE 4 _ t Gladys 6 J L Schwartz 17188 Edgewater Ln 02-20-91 Edward 6 Barbara Devlin 17156 Edgewater Ln 1975 John Szot 17180 Edgewater Ln 05-31-91 Anne Woodward 17124 Edgewater Ln 09-06-78 Glayds Klarin 17164 Edgewater Ln 05-13-88 Can't read name 17172 Edgewater Ln 05-30-75 Daniel Martin Jr 17164 Edgewater. Ln 05-13-88 Jeanette & Terry Stelzer 17148 Edgewater Ln 12-29-86 i r �DaDm 0 � �—� m O C. 9 v ' 9 z _ m r �o�m� m r,Dx2 < M z< z N n n � Z IJ z U) N C n n to 1__l m m m �{,_1)♦ J pp+A En M W tNJ O A N m FF, i rat �� Al Ln , '+ t (3� ! r4s' � {. � w une• s , Y. (�Z� t Wri CO y, 1 {'tti - - , ec�r - Qs�1'a A• r 'pia. ra fir T 1AN;-4rv` X v + kF r L'r'_i r 1•_ r'f� �4I"" I 1 � k Y Wl +e� '3�.�j � �art:- � �,• � :1P� _ err., ,� IS y /rrr f' •ASS 4 gam• .F 1r.�1,� �h�3rPs �!r�� �i I '� ,,;. - 'i rr - �ar f i� �I� 'SI �` fn•�Y� ?�Nt w.tl 1r. f J ��6 �F("#tk w. -I f,. - t u1 �. 1. .a��`"' ♦, -G �'tG.,�,, ��tt}' .�r�'t tr__ • �Yq P vc s m a • �s a N Vz T ' 30 BAILEY & SCHULTZ LAWYERS A PROFESSIONAL CORPORATION BRINDERSON TOWERS 19800 MACARTHUR BOULEVARD SUITE 1450 IRVINE, CALIFORNIA 92715 (714) 724-4519 FAX (7141 833-9275 Cn S rn e -o �<a September 22 , 1992 CA C3 ql Fn W r-:�y W R� Office of the City Clerk co Connie Brockway, City Clerk ' Cn CITY OF HUNTINGTON BEACH 2000 Main Street Huntington Beach, CA 92649 Re: My client: Emad Ali Hassan Dear Ms. Brockway: Attached, please find Original Copy of Transcript of January 21, 1992 , Regular Huntington Beach City Council/Redevelopment Agency Meeting. Please certify that the enclosed Transcript is a true, correct and complete Transcript of said proceeding on page 79 where indicated. Thereafter, please immediately return the Original Copy to my office in the self-addressed, stamped envelope provided for your convenience. Should you have any questions regarding the enclosure, please do not hesitate to contact my office. Thank you. Very truly yours, XSCHULTZ B iley Attorney for Emad Ali Hassan MCB/md Enclosures as noted BAILEY & SCHULTZ / LAWYERS A PROFESSIONAL CORPORATION BRINDERSON TOWERS ^ • 19800 MACARTHUR BOULEVARD SUITE 1450 IRVINE, CALIFORNIA 92715 9 FAX (714) 833-9275 June 15, 1992 Connie Brockway, City Clerk City of Huntington Beach 2000 Main Street P.O. Box 190 Huntington Beach, CA 92648 RE: HASAN Dear Ms. Brockway: Enclosed is the transcribed record of the proceedings regarding the above-referenced matter. As you have instructed, kindly review, correct and/or edit the transcribed proceedings and certify that they conform to the audio portion of the video tape. Therefore, kindly return the original so that we may have the indicated corrections made and arrange for you to certify the corrected original. If you require anything more, please do not hesitate to contact me at your convenience. Very truly yours, BAILEY & SCHULTZ Mark ey MCB:bk c:\city.ltr Enclosures cc: client C®rrP�i�ris, �ta� eyi -�i' i 1 Appeal required, and whether a variance is supported by a 2 showing a required showing of special circumstances. And 3 the evidence that we know about says that there is nothing 4 special about this piece of property that requires three 5 stories to make it usable in a way that' s comparable to 6 surrounding properties . That's what special circumstances 7 means. That requirement simply cannot be established. The 8 facts at trial showed that a two-story house could have been 9 built on this lot and made it completely usable. And Mr. 10 Hassan ' s own representatives stated that a two-story house deco/:tom C-9 11 could have been built on this lot -*cesp e the slope. Under 12 oath at trial this was stated. 13 The staff report speaks of the topography of 14 the lot. And I think it' s inaccurate and somewhat 15 misleading to talk about a ten-foot sloped differential 16 because even if that ' s accurate, and I 'm not sure it' s a 17 ten-foot differential I think it' s more like eight and a 18 half feet across the entire width of the property, that' s 19 irrelevant. What you look at is what is the slope 20 differential directly beneath the footprint of, the house. 21 And that' s much less than ten feet. I think it' s relevant 22 that Mr. Paylen when he made the llth hour retroactive 23 decision to apply the UBC to try to make this into a 24 conforming house, he applied the paragraph of the UBC which 25 applies to less severely sloping properties . CALIFORNIA SHORTHAND REPORTING SERVICE, INC. i I 65 i 1 or many of the facts. I don ' t know if they were all of the �I 2 facts . I 3 MR. KELLY: Let me continue, please. Thank you. i 4 Now, that Court that heard all of this I - 5 testimony in the much more formal environment than this }t 6 particular meeting tonight and said there was nothing wrong. 7 Now, it was brought to the Appellate Court in an appeal . i 8 The Appellate Court, as I understand it, for all intents and i 9 purposes basically went over the same bulk of information 10 and made a determination that the first judge was wrong. 11 And as a result, we are now hearing this from the standpoint 12 of one side, the successful side, of an adjudication. We 13 haven't heard anything about the unsuccessful side of the 14 adjudication. Would you say that' s a fair -- i i 15 MS . HUTTON: I think what we need to keep in mind is i i 16 the facts and the evidence was all adduced at the Superior 17 Court hearing and 'a record was made which was presented to 18 the Appellate Court. Without the benefit of the testimony, i 19 direct testimony of any of the parties or -- 20 MR. KELLY: The fact is one Court said "yes" ; the 21 other Court said 1'�10 , G� 22 MS . HUTTON: That is correct. 23 MR. KELLY: Thank you. 24 MS . HUTTON: The Appellate Court said based upon what 25, they viewed the law and the Superior Court views as the i :A= CALIFORNIA SHORTHAND REPORTING SERVICE, INC. 6a 1 connotations and other slur-like utterances , which I just 2 don't think belong in this kind of a discussion. It ' s 3 really quite unfair to put City Council through those kinds 4 of justifications. During some testimony this evening plus 5 some graphic illustrations that tend to dilu the intensity /rss c �P 6 that was kind of attached to this =a.,,�„_R view particularly 7 in as much as no one in that tract really has a vested view. 8 And I really believe that this two court bounce back and 9 forth with the Superior Court approving or rather saying 10 there was nothing that was wrong with the decision in the 11 City in handling it this way, then from a legal more highly 12 focused and sensitive legal opinion, the Appellate Court 13 wrote the logical script for tonight' s Council decision. I 14 think it said, "Hey, get on with it. You got the way to go, 15 and that is to approve the variance. " I don't see how we 16 can disregard what that judge said. 17 The testimony continually refers to an 18 impropriety an improperly permitted Hassan house the 19 illegality, and it seems to me that the only thing that we 20 could really do in trying to mitigate this neighbor spat is 21 to go with the recommendation that staff made on this, to 22 deny the appeal and approve the permit. I 'm sure you have 23 other likes, sir. I will not be voting in favor of what the 24 motion that is on the table right now. 25 MR. SILVA: Thank you, Mr. Kelly. CALIFORNIA SHORTHAND REPORTING SERVICE, INC. 70 1 it ' s totally protective of the City. There are always 2 circumstances that a Court will look at and decide that the 3 immunity is not applicable. So we cannot take 100 percent 4 comfort in this governmental immunity for our actions. 5 On the other hand, we have in the case of 6 Mr. Hassan acting upon permit granted by the City an 7 argument that detrimental reliance has developed. And as 8 pointed out there are cases that have held that detrimental 9 is enough to cause a Court to find for that person 10 ultimately where they have detrimentally relied to their 11 damage. I think one of the things that this quasi judicial 12 hearing should be considering is that you have before you 13 findings prepared by staff which support the grant of a 14 special or conditional exception to Mr.. Hassan, the 15 appellant. These findings appear to be legally adequate to 16 support that grant. It is in your discretion to adopt those 17 findings after receipt of all the supporting information 18 from this hearing. Usually such information is based upon 19 the staff report and statements of the public and the 20 participants. 21 On the other hand, if you do not find in 22 Mr. Hassan' s favor, you are required to adopt other findings 23 to support the denial of his request. Either way, the Court 24 may not interfere with your exercise of discretion in the 25 decision assuming the record could support either position CALIFORNIA SHORTHAND REPORTING SERVICE , INC. 75 ' 1 MR. GREEN: Oh, sure. 2 MR. SILVA: If you approach an intersection at a red 3 light, there' s a policeman in the intersection, and he gives 4 you the signal to go ahead, and you drive through and you' re 5 broad-sided by another car, my feeling is the City has a 6 certain amount of liability or responsibility in the 7 accident. And I look at the City as having a responsibility 8 in issuing a permit regardless of whether or not it ' s legal 9 or illegal because we base what we do upon authority, a 10 policeman is an authority, a building director has a certain 11 amount of authority. And I know that we were told we are 12 judges tonight. In a way we ' re judges, but we ' re not an 13 innocent party. . What we do tonight will be laying the City 14 open for exposure. We have to represent the taxpayers. I 15 really have a hard time with that. So I will be voting 16 against the motion. Seeing no further lights -- 17 MS . WINCHELL: May I just clarify that the finding 18 for denial were part of my motion also. They' re in the 19 staff report. 20 MR. SILVA: They' re in the staff report? G 21 MS . BROCKWAY: Yes, the motion is to deny the .-CF, the 22 conditional exception and the coastal development permit 23 with findings for denial is set forth in attachment 2 of the 24 RCA dated January 21st. 25 MS . WINCHELL: And denial of the appeal . AL CALIFORNIA SHORTHAND REPORTING SERVICE, INC. 77 1 MR. UNKNOWN: So, in other words , the findings that 2 the planning commission had which we are voting on 3 doesn' t -- is superfluous? 4 MS . WINCHELL: No. They' ll be a part of it. I think 5 the suggestion is that there may be other findings for 6 denial that came forth tonight that the attorney would like 7 to add to our denial . 8 MS . HUTTON: For your consideration to strengthen. 9 MS . WINCHELL: If there are none, we will go with 10 these which are here. 11 MS . HUTTON: That' s right. 12 MR. UNKNOWN: Okay. 13 MR. SILVA: Does call for question. 14 MS . BROCKWAY: ��_2obitaille, Moulton-Patterson, C%azp 15 Winchell , Green Silva, MacAllister, Kelly, no. Motion 16 carries. 17 MR. SILVA: Okay. Considering the hour, we have a 18 normal time that we end our meetings at 11: 00. I would like 19 to leave it open to the counsel whether to continue. . 20 COUNSELOR MAC ALLISTER: Yes, sir. We have another 21 meeting this coming Monday night which is part of our budget 22 session. Since the hour is bewitching our midnight, and I 23 know that the other issues we have will take some time, I 24 would move that we continue this Council meeting to next 25 Monday night. CALIFORNIA SHORTHAND REPORTING SERVICE, INC. BAILEY & SCHULTZ LAWYERS A PROMSSIONAL CORPORATION -_J J `- "• `UL BRINDERSON TOWERS 19800 MACARTHUR BOULEVARD - SUITE 1450 ' IRVINE, CALIFORNIA 92715 February 10, 1992 (714) 724-4519 FAX (714) 833-9275 Gail Hutton City Attorney N1r. Robert Sangster Deputy City Attorney CITY OF HUNTINGTON BEACH 2000 Main Street Huntington Beach, CA 92648 *VIA FAX* ORIGINAL BY MAIL City Clerk CITY OF HUNTINGTON BEACH 2000 Main Street Huntington Beach, CA 92648 RE: Emad All Hassan CE 91-28 To Whom This May Concern: Please accept this letter as our formal request for the City of Huntington Beach to designate its record with regard to the City Council decision denying my client a variance, as decided on January 21, 1992. We request that this record be designated and copied, including a video tape of the Hearing on or before February 14, 1992. Therefore, you are hereby requested by Emad Ali Hassan, a real party in interest in the above administrative proceedings, to prepare and deliver to the undersigned, in accordance with Government Code Section 11523 and Code of Civil Procedure Section 1094.6 the record in these proceedings, including, all correspondence, briefs, memoranda, photographs, drawings, reports, petitions, and as otherwise set forth in Government Code Section 11523 and Code of Civil Procedure Section 1094.6, which includes, but is not limited to, the following: 1. The pleadings; 2. All notices and orders issued by the agency and/or city; 3. Any proposed decision of the City Council; 4. The final decision; 5. A transcript of all proceedings; 6. All exhibits admitted or rejected; City Clerk-City of Huntington Beach February 10, 1992 Page 2 7. The written evidence and; 8 Any other papers in the case. We request that you contact our office when said record and transcript are available and advise of the cost so that we may arrange to have a check delivered, and receive the aforementioned record of the proceedings. Thank you for your anticipated prompt attention to this request. Very truly yours, BAILEY & SCHUL A.P.C. Mark C. Attorney at Law MCB/md ` DR,UMMY KING WHITE A PROFESSIONAL CORPORATION ATTORNEYS AT LAW AREA CODE 714 $TEPHEN C. ORUMMV 3200 PARK CENTER DRIVE, TENTH FLOOR TELEPHONE 850-I800 JOHN P.KING, JR. COSTA MESA, CALIFORNIA 92626 ALAN I. WHITE TELECOPIER (714) 850-4500 DIRECT ALL MAIL TO; R.O. BOX SOBO C HARLE$ W. PARRET IN REPLY MICHAEL G. JOEROER COSTA MESA, CALIFORNIA 92628 REFER TO 5304 . 001 JEFFREY M. RICHARD GREGORY F. ROBINSON KEVIN M. TRIPI LISA A. ST6PAN$KI MARK S.FAULKNER MARK R.BECKINOTON DOUGLAS F. RUBINO LAWRENCE M. BUREK October 14 1991 M.E.DANIEL $HA$TEEN KENNETH W. CURTIS ALAN A. GREENBERG KERMIT D. MARSH Mr. Thomas B. Rogers, Assistant Planner Department of Community Development City of Huntington Beach 2000 Main Street Huntington 'Beach, California 92648 Re: Conditional use permit and variance applications of Emad Ali Hassan; Hearing date - October 22, 1991 Dear Mr. Rogers: Enclosed for inclusion in the Planning Commission packet concerning the above-referenced applications of Emad Ali Hassan is a Petition of homeowners in the neighborhood of the Hassan residence. These signatures represent 122 neighbors residing in 92 homes in the area surrounding Hassan's property, who oppose the application on the bases stated in the Petition. We will submit the original petition for the Commission's review upon request. Among those who signed the petition are residents of 60 of the 63 comes which are located within a 500 foot radius of Hassan' s structure. Two of the other three were not home after several attempts to contact them. Only one of the residents in those 63 homes within that radius was reluctant to sign the Petition. I believe this Petition demonstrates the overwhelming public opposition to Mr. Hassan' s application and the general consensus that granting the application would be a continuation of the past preferential treatment of Hassan on this issue. JMMCOM10794.1 Mr. Thomas B. Rogers, Assistant Planner Department of Community Development City of Huntington Beach October 14, 1991 Page 2 Please circulate copies of this Petition among the members and staff of the Planning Commission. Thank you for your attention to this matter. Sincere y yours, ZRUMMYKING M. RICHARD of & WHITE JMR:cyn Enclosures cc: Scott Hess, Zoning Administrator Howard Zelefsky, Director of Planning Department, Planning Commission Robert Sangster, Esq. ✓Eonnie Brockway, City Clerk Mark Bailey, Esq. James Gartner, AIA Richard C. Carson, Esq. JMMOR\10794.1 PETITION OF HOMEOWNERS NEIGHBORING RESIDENCE OF EMAD ALI HASSAN IN OPPOSITION TO ISSUANCE OF VARIANCE WHEREAS the California Court of Appeal has found that the residence owned by Emad Ali Hassan located at 4471 Los Patos, Huntington Beach, California, was constructed pursuant to an invalid building permit and was built to a height substantially exceeding the zoning code height limit that was applicable to that residence and to all surrounding single family residences; WHEREAS no special circumstances affect the Hassan property that would deprive such property of any of the privileges or uses enjoyed by other properties in the vicinity if the Hassan residence is brought into conformity with the applicable zoning code height limit; WHEREAS permitting the Hassan residence to remain in place as presently constructed would constitute a continuing violation of the zoning code height limit that applied to construction of the Hassan residence and would be tantamount to granting of an impermissible special privilege to Emad Ali Hassan and to his property. WHEREAS issuance of a variance to Emad Ali Hassan to permit his continuing use of his property for a single family residence that exceeds the applicable zoning code height. limit by about nine (91 ) feet would be wholly inconsistent with the limitations imposed upon surrounding property owners; and WHEREAS Emad Ali Hassan's use of his property for a three story, thirty-nine (391) foot structure is objectionable and unfair to surrounding property owners: THEREFORE, the signatories below, who are owners of property near the Hassan residence, hereby petition and request the City of Huntington Beach to deny any application for a variance or conditional exception submitted by Emad Ali Hassan for the purpose of allowing him to retain his impermissibly high single family residence, and further petition and request the City of Huntington Beach to take all appropriate steps to require Emad Ali Hassan to end his unlawful use of the property at 4471 Los Patos, Huntington Beach and to remove the unlawful portion of the structure. SIGNATURE NAME ADDRESS DATE (Print) '7o1/ r/ �1 7r!l !�IGr;rr� �!;e�,�;N11 71q I C A L . iEVAtIA_ _ /7 6 N lac L SIGNATURE NAME ADDRESS DATE (Print) , lVe 001, W, N c: Vi-e 71Z S tom'5 a n C W . n n ► -7 ( 9 Z. M cc r n uy 1 QUJ�4 B 712 I OV4 C 0t- -�- a t- a l:3 w i 11�ctom i Cmeo lZV Qri V/etG/ P67/�i�l 17 2 3 Z 44j(i� Nvv�,- l -�B 92jY4 ZQ� -e. ,Lgpv f rice /7I % MaelAq Wew Y, 24 � C ,T, -Dan-el . . 'bt&kk)ey 171cl 45 Ili GL o ,141 ��03. 6�Y 9 GtJl� L A D "LPJ 9�X -O d tj a L D �3_ w j,r c�„ '1 3► $A �r n rt Y+ 4< < .0 9 ti 4 s �7/JP�QJ�n F fL 1�. CAW SIGNATURE NAME ADDRESS DATE (Print) 1 0� .�-a� ► Ic��.N r-7 lzt , gdl; I j �as-72 lam' Z, 11A- 1-Z"Lix CA2DL cuvd� G a G; 1171 or_ - l vF--USe- G.-plo 3. e 7 K �� ! f .� 1<120 .`' l' u r �h_ %� 1 Flo ` j ���L� ;� c- >✓ /�, %7 C - %cam=�, rt SIGN;TURE NAME ADDRESS DATE (Print) An � 1 alno ova 7'- _ _ _r_ - 9�&G i ,� � c�G� � a .� ,ram✓ �9z�y M T , W, l 44 ?2f.41X0 �l OaAlor— 1 ,10117 CL�fivlc�Z La I � Cu '` ` 2 Za /:S 9Z vy 17o 9 C f,� ,r3, fz6y9 16'f l r o7 r Sc� fC, J. ©• LCI�Fie�0 Z' 1707/ Q.(/ 'jJ�O`T T i-7a F N - ca6gy 7/ 4/1 land . � . r � 7 t7WAWI� s • i 1 40 1 ' - 1 . 1 SIGNATURE - NAME ADDRESS DATE (Print) 2-1 -rrt J 1 00l lU�� Cam. �� -7z aS — 9a�l 4232, u.A 92449 170-7 1, GIZ� a �v /�. � .;:' - �'� _ ,r � �• y��f u• .t. ! iol �° ills'9z�y� J 2v� ' 11 Z alzl ; ya0, yIC, :r DRUMMY KING & WHITE A PROFESSIONAL CORPORATION ATTORNEYS AT LAW AREA CODE 714 STEPHEN C. ORUMMY 3200 PARK CENTER DRIVE, TENTH FLOOR TELEPHONE 850-I600 JOHN P. KING, JR. COSTA MESA, CALIFORNIA 92626 ALAN I. WHITE TELECOPIER (714) 850-4500 DIRECT ALL MAIL TO: P.O. BOX SOBO CHARLES W. PARRET IN REPLY MICHAEL O. JOEROER COSTA MESA, CALIFORNIA 92628 REFER TO 5304. 001 JEPPREY M. RICHARD - GREOORY E. ROBINSON G� KEVIN M. TRIPI LISA A. STEPANSKI �� MARK S. FAULKNER �y 1��`'L MARK R. BECKINOTON / •�1 L)t!� DOUGLAS P. RUBINO / LAWRENCE M. BUREK "r M.E. DANIEL SHASTEEN KENNETH W. CURTIS February 4, 1992 - 9� ALAN A. OREENBERO I KERMIT D.MARSH Robert C. Sangster, Esq. Post Office Box 2740 2000 Main Street Huntington Beach, California 92647 Re: Emad Ali Hassan's Conditional exception application no. 91-28 Dear Mr. Sangster: I am writing to confirm our conversation of February 4, 1992 . I telephoned you to ask for a clarification of your letter of January 31, 1992 . You stated that the meeting of the Council will take place to, consider adopting findings of fact in support of the council 's earlier decision to deny Mr. Hassan's applications and that this will not be an opportunity for re-arguing or reconsidering the denial of those applications. You said that this matter will not be set for another public hearing and that your purpose in sending the letter was to make it clear that the 90-day time period for bringing a challenge to the City's denial of the conditional I J M R\CO R\15972.1 J Robert C. Sangster, Esq. February 4, 1992 Page 2 exception and CUP will not start to run until the findings of fact are adopted. Thank you for your continuing courtesy and cooperation. g ely yours, Y M. RICHARD of KING & WHITE JMR:cyn cc: Mike Adams, Director of Community Development ✓Connie Brockway, City Clerk Mark Bailey, Esq. J MR\COR115972.1 1flCITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION HUNTINGTON BEACH TO: Michael T. Uberuaga, City Administrator FROM: Connie Brockway, City Clerk SUBJECT: Los Patos/Reince/Hassan DATE: January 14, 1992 Attached are the Council minutes regarding Los Patos, Hassan and Reince. cc: Councilman Green Mike Adams Gail Hutton n� �v y i . Page 7 - Council Minutes - 11/18/85 Center, Inc. , for the preparation of a preliminary study of the economic and financial performance considerations for a Cousteau entertaining educational facility within the Main-Pier Redevelopment Project Area. Mike Adams, Principal Planner/Redevelopment presented a staff report. Following discussion, a motion was made by Bailey, seconded by Green, to auth- orize the preparation of a contract between the City and Cousteau Ocean Cen- ter, Inc. , to conduct a preliminary feasibility study, commencing on or about December 1, 1985, and concluding 90 days later in an amount not to exceed $19,950. The motion carried by the following roll call vote: AYES: Bailey, Mandic, Finley, Green NOES: Kelly, MacAllister, Thomas ABSENT: None ADJOURNMENT The Chairman adjourned the regular meeting of the Redevelopment Agency. PUBLIC COMMENTS Donald Troy addressed Council regarding a newspaper article and urged that federal funds be withheld from Commodore Circle property owners. He- presented the newspaper article to Council. The Mayor directed staff to contact Mr. Troy with further information regard- ing the matter. Charles Reince addressed Council regarding a construction project located at 4471 Los Patos which he believed violated height restrictions. The Mayor requested a report from staff regarding the matter. Don Davis, representing Atlantic Richfield, addressed Council regarding pro- posed Code Amendment No. 85-8 (Agenda Item F-2) pertaining to prohibition of the sale or consumption of alcoholic beverages. , He suggested the issue be monitored through the Conditional Use Permit process. He suggested an open forum with citizens on the issue. he stated that his company was willing to relocate the Arco gas station presently located at Slater Avenue and Golden- west Street. Carolyn Allen stated she was opposed to the sale of alcoholic beverages at gas stations. She showed slides of a beer bottle that had been improperly dis- posed of at the Arco gas station located at Slater Avenue and Goldenwest Street. Frank Gifford presented aerial photographs of property near Intrepid Lane (Agenda Item F-3). He supported the proposed parking permit district. Dan Higginbotham addressed Council in support of the proposed parking permit district. Gerald Jones addressed Council in opposition to the proposed parking permit h district. Y Page 13 - Council -Minutes - 11/18/85 COMMODORE CIRCLE - REPORT REQUESTED Councilwoman Finley referred to a newspaper article, provided by Donald Troy during the Public Comments portion of the meeting, regarding the proposed use of public funds for Commodore Circle and requested that staff provide her with further information regarding the matter. Later in the meeting Councilman Kelly suggested that Mr. Troy meet with Rich Barnard, Assistant to the City Administrator and in charge of the Commodore Circle Task Force. SB 1567 - SANTA ANA RIVER - LETTER TO BE SENT TO SENATORS Councilwoman Finley suggested that the Mayor send a letter to Senator Cranston and Senator Wilson regarding SB 1567 pertaining to the Santa Ana River. COUNCIL DELEGATION TO SEE OC SUPERVISORS - TALBERT VALLEY EIR Councilwoman Finley suggested that a delegation, headed by the Mayor, meet wtih members of the Orange County Board of Supervisors prior to the hearing on the Talbert Valley Environmental Impact Report which will be considered Novem- ber 27, 1985. HEIGHT LIMITATION - CONSTRUCTION LOS PATOS - REPORT REQUESTED - STAFF TO REVIEW ORDINANCE ALLOWING 10' ACROSS BOARD IN R-1 NEIGHBORHOODS Councilwoman Finley requested further information regarding the construction at 4471 Los Patos Drive that was referred to by Charles Reince during the Pub- lic Comments portion of the meeting as exceeding height limitations. She requested that staff review the ordinance allowing 10' additional height across-the-board in residential neighborhoods. Later in the meeting Council- man Kelly requested a report regarding the construction at 4471 Los Patos Drive. WINTERSBURG EVENING HIGH SCHOOL - STUDENTS' RESOLUTION PRESENTED TO COUNCIL Councilwoman Bailey presented a resolution passed by the student body at Even- ing High School at Wintersburg volunteering service to the City. ALLIED ARTS BOARD REQUEST'RE: HCP AMPHITHEATER - TO BE AGENDI LD 12/2/85 Councilwoman Bailey referred to a communication from the Allied Arts Board requesting that the currently budgeted $20,000 for the Central Park Amphithea- ter be used for an architect to design plans for construction of the amphi- theater and the remaining 1985-86 fund balance be used to initiate construc- tion of the project. She requested that consideration of the matter be placed on the December 2, 1985 agenda. REMOVAL OF ILLEGAL SIGNS IN PUBLIC RIGHT-OF-WAY Councilwoman Bailee referred to a letter from David Garza dated November 8, 1985 transmitting copies of a newspaper article describing the city of Ingle r - Y Page 14 - Council Minutes - 1/6/86 HASSAN RESIDENCE - 4471 LOS PATOS - HEIGHT PROBLEM RESOLVED - REPORT BEING PREPARED Councilwoman Bailey referred to a letter dated December 18, 1985, from Charles Reince regarding the height problem of the Hassan residence at 4471 Los Patos. The Director of Development Services stated that the problem had been resolved and that a report was being prepared. TRUCK/BOAT STORAGE - SPRINGDiALE S/EDINGER - REPORT REQUESTED Councilwoman Bailey stated she had received a complaint regarding property located on Springdale Street south of Edinger Avenue. She stated that boats and trucks were stored there and visible from the street. Councilwoman Bailey requested a report from staff regarding the matter. SEMI-TRAILERS WITHOUT CABS/TRACTORS PARKED ON CITY STREETS Councilman Kelly stated his concern regarding parking of semi-trailers without cabs or tractors parked on city streets. The Chief of Police presented a ver- bal report regarding the matter. ILLEGAL SIGNS - TRINIDAD ISLAND Councilman Kelly referred to a letter from the Trinidad Homeowners Association pertaining to illegal advertising signs along public right-of-way. the City Administrator stated that staff had already sent a written response to the complaint. JOANN ULVAN CONCERNS RE PROPERTY LOCATED N/ADAMS W/DELAWARE (OLD TOWN SPECI- FIC PLAN) - REFERRED TO STAFF Councilman Kelly requested the Director of Development Services to contact JoAnn Ulvan who spoke under the Public Comments portion of the meeting regard- ing property located north of Adams Avenue on the west side of Delaware Street in the Old Town Specific Plan. The Director of Development Services stated there was need for a vehicle to make exceptions and that he was working on a study for same. HUNTINGTON VALLEY BOYS/GIRLS CLUB INSTALLATION/MEETING - 1/11/86 Councilman MacAllister invited Councilmembers to attend the annual installa- tion/meeting of the Huntington-Valley Boys and Girls Club scheduled for Janu- ary 11, 1986. TRAFFIC LIGHT - PCH/MARINER - MEETING TO BE SCHEDULED Following discussion, Councilwoman Bailey stated that a meeting of concerned parties would be scheduled in the near future regarding the proposed traffic light at Pacific Coast Highway and Mariner Drive. Page 10 - Council Minutes - 2/3/86 effect temporary repair to the pier. The motion carried by the following roll call vote: AYES: Kelly, MacAllister, Finley, Mandic, Bailey, Green NOES: None ABSENT: Thomas APPOINTMENTS APPROVED - COUNCIL LIAISON TO PFC - GREEN/BAILEY On motion by Mandic, second MacAllister, Council unanimously appointed Coun- cilmembers Green and Bailey as liaison to the Public Facilities Corporation. FINLEY APPOINTED TO MEET WITH 0 C SUPERVISOR WIEDERS' LINEAR PARK COMMITTEE On motion by Mandic, second Kelly, Council unanimously appointed Councilwoman Finley to meet with Orange County Supervisor Wieder's Linear Park Committee. REPORT REQUESTED 2/18/86 - HOME DEPOT The Mayor referred to a memorandum from the Director of Public Works dated January 29, 1986 regarding home Depot• fees. Home Depot is located at 6912 Edinger Avenue. The Director of Public Works presented a verbal report regarding the matter. The Mayor requested a staff report for the February 16, 1986 Council meeting. BUSINESS IN DOWNTOWN REDEVELOPMENT AREA Mayor Mandic expressed his concern that some businesses in the downtown rede- velopment area were created in order to increase the value of the property. DENSITY CALCULATIONS - PLANNING COMMISSION TO REVIEW AND REPORT Mayor Mandic stated that the City's density calculations were done differently than methods used in other cities. A motion was made by Mandic, seconded by Finley, to direct the Planning Com- mission to review the City's density calculations and compare them with other cities. The motion carried by the following roll call vote: AYES: Kelly, MacAllister, Finley, Mandic, Bailey, Green NOES: None ABSENT: Thomas PLANNING COMMISSION TO CONSIDER BUILDING -HEIGHTS 2/4/86 In response to questioning, the Director of Development Services stated that the Planning Commission would be considering a proposal regarding building heights at their meeting scheduled for February 4, 1986. Page 7 - Council Minutes - 4/21/86 PUBLIC HEARING - CODE A?C10MENT 86-9 - APPROVED - ORD NO 2836 - APPROVED INTRODUCTION - DEFINITIONS - DIVISION The Mayor announced that this was the day and hour set fora public hearing to consider the repeal of existing Article 970 and the addition of new Article 908 related to Definitions governing Division 9 of the Huntington Beach Ordi- nance Code. The City Clerk announced that all legal requirements for publication and post- ing had been met, and that she had received no communications or written pro- tests to the matter. The Director of Development Services stated that Section No. 9080.22 did not reflect the recent Planning Commission recommendations to Council regarding a separate ordinance on height and that the matter would be presented to Council for consideration at ..the May 5, 1986 meeting. He stated that Section No. 9080.62 ..pertaining to kennels should read "A use in which four (4) or more dogs. . ." The Mayor declared the hearing open. There being no one present to speak on the matter and there being no protests filed, either oral or written, the hearing was closed by the Mayor. The City Clerk presented Ordinance No. 2836 for Council consideration - "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDI- NANCE CODE BY REPEALING ARTICLE 970 AND ADDING NEW ARTICLE 908 ENTITLED "DEFI- NITIONS." A motion was made by Kelly, seconded by MacAllister, to approve Code Amendment No. 86-9 and, after reading by title, approve introduction of Ordinance No. 2836. The motion carried by the following roll call vote: AYES: Kelly, MacAllister, Finley, Mandic, Green, Thomas NOES: None ABSENT: Bailey PUBLIC HEARING - CODE AMENDMENT 85-23 - APPROVED - ORD NO 2837 - INTRODUCTION APPROVED AS AMENDED - MAXIMUM HEIGHT IN R1 DISTRICT The Mayor announced that this was the day and hour set for a public hearing to consider Code Amendment 85-23 which would reduce maximum height to 25 feet and maximum 2 stories, to reorganize the R1 District and Yards and Fencing Provi- sions, to retitle Chapter 91 from "Low Density Residential Districts" to "Res- idential Districts" . The City Clerk announced that all legal requirements for publication and post- ing had been met, and that she had received no communications or written pro- tests to the matter. The Director of Development Services recommended that Section 9110.7, where it pertains to eaves, be amended to read "Refer to the Uniform Building Code." i =, Page 8 - Council Minutes - 4/21/86 Discussion was held regarding height limitations. The Mayor declared the hearing open. Donald Troy, realtor, spoke in opposition to the ordinance and stated he believed t e height limitation restricted the rights of property owners. There .being no one present to speak further on the matter and there being no further protests filed, either oral or written, the hearing was closed by the Mayor. The City Clerk presented Ordinance No. 2837 for Council consideration - "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDI- NANCE CODE BY REPEALING ARTICLES 910, 977 AND SECTION 9730.46, AMENDING CHAP- TER 91 TITLE, AND ADDING THERETO NEW ARTICLE 911 ENTITLED "Rl--LOW DENSITY RESIDENTIAL DISTRICT" AND NEW ARTICLE 977 ENTITLED "YARDS AND FENCING". A motion was made by Green, seconded by Finley,- to approve Code Amendment No. 85-23 and, after reading by title, approve introduction of Ordinance No. 2837, as amended, by changing Section 9110.7 where it pertains to eaves to read "Refer to the Uniform Building Code." The motion carried by the follow- ing roll call vote: AYES: Finley, Mandic, Green, Thomas NOES: Kelly, MacAllister ABSENT: Bailey PUBLIC HEARING - CODE AMENDMENT 86-7 APPROVED - ORD NO 2838 - INTRODUCTION APPROVED AS AMENDED - ZONING PROVISIONS - R2 - R3 - R4 DISTRICTS The Mayor announced that this was the day and hour set for a public hearing to consider Code Amendment 86-7 to repeal existing Articles 916, 920, 923 and 932 and add new Article 912, related to zoning provisions for the R2 - (Medium Density Residential District) R3 (Medium High Density Residential District) and R4 (High Density Residential District) Districts within the City of Hunt- ington Beach. The City Clerk announced that all legal requirements for publication and post- ing had been met, and that she had received no communications or written pro- tests to the matter. The Director of Development Services presented a staff report. The Mayor declared the hearing open. There being no one present to speak on the matter and there being no protests filed, either oral or written, the hearing was closed by the Mayor. The City Clerk presented Ordinance No. 2838 for Council consideration - "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDI- NANCE CODE BY REPEALING ARTICLES 916, 920, 923, AND 932 AND ADDING THERETO NEW ARTICLE 912 ENTITLED "MEDIUM DENSITY RESIDENTIAL W), MEDIUM-HIGH DENSITY RESIDENTIAL (R3), AND HIGH DENSITY RESIDENTIAL (R4)." A motion was made by Green, seconded by Thomas, to approve Code Amendment No. 86-7 and, after reading by title, approve introduction of Ordinance ' No. tt � Page 7 - Council Minutes - 5/5/86 Mayor Mandic declared the hearing open. Mr. . Ken Moody, applicant, addressed Council and requested approval of the zone change. There being no one present to speak further on the matter, and there being no protests filed, either oral .or written, the hearing was closed by the Mayor. On motion by MacAllister, second Kelly, Council approved Negative Declaration, No. 86-10, Zone Case No. 86-7, and after reading by title, approved introduction of Ord. No. 2843 - "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY AMENDING SECTION 9061 THEREOF TO PROVIDE FOR CHANGE OF ZONING FROM (Q) C4, QUALIFIED HIGHWAY COMMERCIAL DISTRICT AND C4, HIGHWAY COMMERCIAL DISTRICT TO (Q) R2, QUALIFIED MEDIUM DENSITY RE- SIDENTIAL ON REAL PROPERTY LOCATED ON THE EAST SIDE OF BOLSA CHICA STREET BETWEEN WARNER AVENUE AND PEARCE STREET (ZONE CASE 86-7)." The motion carried unanimously. CODE AMENDMENT 85-24 - BUILDING HEIGHT - HEARING CONTINUED OPEN TO 6 Mayor Mandic announced that this was the day and hour set for a public hearing for the purpose of considering Code Amendment 85-24 to modify S. 9080.22 of the definition section of the Huntington Beach Ordinance Code - Building Height. The City Clerk announced that all legal requirements for publi- cation and posting had been met, and that she had not received any communications or written protests to the matter. A letter dated May 5, 1986, had been submitted by William H. Wilson to the City Council, through the City Council Office, with a copy to the City Clerk, relative to the proposed code amendment's effect on the con- struction of four-plexes. The Development Services Director presented a staff report on the proposed code amendment. He spoke regarding the conflict between the Uniform Building Code and the Planning Code. He stated that his staff had polled other communities and many had modified the Uniform Building Code to meet their needs. Two proposed ordinances were presented for Council consideration; Ordinance No. 2844, recommended by the Planning Commission and Ordi- nance No. 2846 recommended by staff. Ordinance No. 2844 - "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY AMENDING SECTION 9080.22, RELATED TO THE DEFINITION OF BUILDING HEIGHT (Modified Uni- form Building Code Definition) Extensive discussion was held between the Council and Development Services Director. Page 8 - Council Minutes - 5/5/86 Mayor Mandic declared the hearing open. Robert Skinner addressed Council and gave reasons why he opposed the proposed Code Amendment which included his belief that it would limit the types of building allowed and would make some structures non-conforming. Bill Holman, representing the Huntington Beach Company, spoke in support of the staff recommendation and gave reasons why he believed it was a more workable definition of building height. Kirk Kirkland, President of the Huntington Beach-Fountain Valley Board of Realtors, stated his concern with portions of the proposed ordinance and concurred with the recommendation for continuance. Chuck Reince, addressed Council and stated his opposition to the Uniform Building Code definition of height. He displayed a photo- graph showing a structure of 39 feet as measured by the UBC. He stated his support of proposed Ordinance No. 2846. A motion was made by MacAllister, second Kelly, to continued the public hearing on Code Amendment No. 85-24 open to the meeting of June 2, 1986. Motion carried unanimously. Councilman Thomas left the Council meeting. CODE AMENDMENT 86-14 - APPROVED - OLDTOWN/TOWNLOT AREAS - ORD NO 2845 - INTRODUCED Mayor Mandic announced that this was the day and hour set for a public hearing on Code Amendment No. 86-14 to modify Article 913 of the Huntington Beach Ordinance Code to "cleanup" provisions related to the approval process and applicable standards for larger apart- ment developments, setbacks and density calculation in the Oldtown-Townlot Lot Areas of the City. The City Clerk announced that all legal requirements for publi- cation and posting had been met, and - that she had not received any communications or written protests to the matter. The . Development Services Director presented a report on proposed Code Amendment No. 86-14. Discussion was held between the Council and the Development Services .Director. Councilman Kelly requested clarification of the pro- visions of -S. 9130.3 of the proposed ordinance relative to maximum density-intensity and the Development Services Director reported on the matter. Mayor Mandic declared the hearing open. There being no one present to speak on the matter and there being no protests filed, either oral or written, the hearing was closed by the Mayor. f ya0,y0 j DRUMMY KING & WHITE A PROFESSIONAL CORPORATION ATTORNEYS AT LAW AREA CODE 714 S TEPHEN C. DRUMMY 3200 PARK CENTER DRIVE, TENTH FLOOR TELEPHONE 850-I800 JOHN P. KING, JR. COSTA MESA, CALIFORNIA 92626 ALAN 1. WHITE TELECOPIER (714) 850-4500 DIRECT ALL MAIL TO: P.O. BOX 5080 C MARLES W. PARRET IN REPLY MICHAEL G. JOERGER COSTA MESA, CALIFORNIA 92628 REFER TO 5304 . 001 JEFFREY M. RICHARD GREGORY E. ROBINSON KEVIN M. TRIPI LISA A. STEPANSKI -D G MARK S. FAULKNER MARK R. BECKINGTON DOUGLAS F. RUBINO n LAWRENCE M. BUREK C�m H.E. DANIEL SHASTEEN ill�•'�n KENNETH W. CURTIS April 23 , 1992 C= M) ALAN A. GREENBERG Ill n-q M O "M rn Z KERMIT D. MARSH -2 �O n - n r GS7 N Robert C. Sangster, Esq. Post Office Box 2740 2000 Main Street Huntington Beach, California 92647 Re: Reince vs. City of Huntington Beach; Compliance with Peremptory Writ of Mandate Dear Bob: As you can probably guess, my client is becoming increasingly concerned about the City' s compliance with the Court' s peremptory writ of mandate directing the City to abate Mr. Hassan' s unlawful use of property. The stipulated extension of the return date gives the City only until June, 1992 in which to comply with the writ. It has now been three months since the City Council denied the variance sought by Mr. Hassan. Please do whatever you can to expedite the filing of the abatement action. As I have said before, we will provide whatever support the City reasonably requests in order to ensure compliance with the writ by the date specified. If Mr. Hassan files an action seeking to enjoin the abatement, Dr. Reince will intervene and will seek to avoid or substantially limit the duration of any injunction sought by Hassan. He should be completely bound by the results obtained in our lawsuit which is res judicata as to all contentions he could possibly make at this point to prevent abatement. JMR\COR\19682.1 Robert C. Sangster, Esq. April 23 , 1992 Page 2 Please provide me with copies of any pleadings prepared by your office and any pleadings served upon your office_ by Mr. -Hassan' s attorneys. Thank you for your attention to this matter. Si erely yours, J F EY M. RICHARD of RUMMY KING & WHITE JMR:cyn cc: Connie Brockway Mayor Jim Silva Grace Winchell Linda Moulton-Patterson Jack Kelly Don McAllister Earle Robitaille Dr. Peter Green JMR\COR\19682.1 Page 13 - Council Minutes - 5/19/86 AD HOC COMMITTEE ON HEIGHT FORMED By consensus the Council determined that an Ad Hoc Committee on Building Height be formed consisting of three Planning Commissioners and three Council- members (Councilmembers Kelly, Finley and Bailey). The committee's purpose would be to get input from the Planning Commission, Council and developers on definitions of building heights, two story, height maximum for single-family residential, and a five foot reduction in overall building height from the current code. COMiMODORE CIRCLE - ADJACENT PROPERTY OWNERS TO BE INFORMED RE NEIGHBORHOOD ENHANCEMENT PROJECT Staff was directed to inform Commodore Circle adjacent property owners regard- ing the formation of the Commodore Circle Neighborhood Enhancement Project. HUDSON PROPERTY PURCHASE The City Administrator informed Council that the Hudson Property purchase con- tracts were not yet completed. ORDINANCES ADOPTED A motion was made by Kelly, seconded by Green, to adopt, after reading by title, Ordinance Nos. ' 2839, 2841, 2843, 2845 and' 2831. The motion carried by the following roll call vote: AYES: Kelly, Finley, Mandic, Bailey, Green, Thomas NOES: None ABSENT: MacAllister ORDINANCE NO 2839 - ADOPTED - DEFINING AND REGULATING ADULT BUSINESSES "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY AMENDING ARTICLES 975 DEFINING AND REGULATING ADULT BUSINBS- SES." ORDINANCE NO 2841 - ADOPTED - VENDING ON PARADE ROUTES "AN ORDINANCE 'OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH MUNICIPAL CODE BY AMENDING SECTION 9.48.010 REGARDING DEFINITIONS AND ADDING THERETO SECTIONS 9.48.260, 9.48.270, 9.48.280, 9.48.290 and 9.48.300 REGARDING VENDING ON PARADE ROUTES." ORDINANCE NO. 2843 - ADOPTED - ZONE CASE NO 86-7 - BOLSA CHICA/WARNER/PEARCE "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY AMENDING SECTION 9061 THEREOF TO PROVIDE FOR CHANGE OF ZON- ING FROM (Q) C4, QUALIFIED HIGHWAY COMMERCIAL DISTRICT AND C4, HIGHWAY COMMER- Page 2 - Council Minutes - 6/2/86 PUBLIC HEARING - CODE AMENDMENT 85-24 - BUILDING HEIGHT - REFERRED BACK TO PLANNING COMMISSION - CONTINUED OPEN TO 6 16 86 The Mayor announced that this was the day and hour set for a public hearing continued open from May 5, 1986, to consider Code Amendment 85-24 to modify S. 9080.22 of the definition section of the Huntington Beach Ordinance Code - Building Height. A motion was made by Bailey, seconded by MacAllister, to continue the public hearing open to consider Code Amendment 85-24 to modify S. 9080.22 of the def- inition section of the Huntington Beach Ordinance Code - Building Height - to June 16, 1986. The motion carried by the following roll call vote: AYES: Kelly, MacAllister, Finley, Mandic, Bailey, Green, Thomas NOES: None ABSENT: None PUBLIC HEARING - LAND USE ELEMENT AMENDMENT 85-1 - (HOLLY PROPERTY) - CONTIN- UED TO AT P.M. STUDY SESSION AND P. M. REGULAR SESSION The Mayor announced that this was the day and hour set for a public hearing to consider a proposed amendment to the Land Use Element of the General Plan which covers a request from the Huntington Beach Company to change the General Plan designations on approximately 120 acres from Estate Residential 0.2 units per acres, Estate Residential 0.4 units per acre, General Industrial and Office Professional to Planned Community. Subject property is located on the south side of Ellis Avenue, west of the Southern Pacific Railroad Right-of- Way, north of Garfield and Ernest Avenues and east of Goldenwest Street. The applicant's request could result in approximately 1,200 dwelling units. Environmental Impact Report No. 84-1 has previously been approved by the City Council. The Deputy City Clerk announced that all legal requirements for notification, publication and posting had been met, and that she had received no communica- tions or written protests to the matter. The Mayor declared the hearing open. A motion was made by MacAllister, seconded by Kelly, to continue the public hearing open on Land Use Element Amendment No. 85-1 to June 16, 1986, to hold a study session at 6:00 P.M. in Room B-8, Civic Center, prior to the hearing and to invite the Planning Commission to attend the study session. The motion carried by the following roll call vote: AYES: Kelly, MacAllister, Finley, Mandic, Bailey, Green NOES: None NOT VOTING: Thomas ABSENT: None Page 3 - Council Minutes - 6/16/86 a special event such as a grand opening or anniversary sale. Approval shall be subject to the discretion of the Director for other events; however a ape- cial event shall not mean the occasional promotion of retail sales by a busi- ness. A cash bond to guarantee removal shall be required." The motion car- ried by the .following roll call vote: AYES: Kelly, MacAllister, Finley, Mandic, Green, Thomas NOES: Bailey ABSENT: None It was the consensus of Council to agree to incorporate the following items, pursuant to the Planning Commission report of May 20, 1986 as outlined in the RCA dated June 12, 1986, into proposed .Ordinance No. 2832: Item #1: Increasing the height of permitted monument signs to seven feet, rather than six feet. Item #2: Adding a provision that would allow a site with over 400 feet of frontage to qualify for secondary monument signs (previously a mini- mum 1300 feet of frontage was required). These signs would be 30 square feet and 7 feet high. For visibility purposes, . a minimum distance between monument signs of 200 feet should be maintained. Item #5: Tenant directories shall have low intensity internal. or external illumination, subject to the approval of staff and shall be oriented to pedestrians and motorists on the site. Item #6:. The word "minimum" be changed to "equivalent to minimum standards". A motion was made by MacAllister, seconded by Mandic, to amend proposed Ordi- nance No.-• 2832 pursuant to the Planning Commission report of May 20, 1986 as outlined in the RCA dated June 12, 1986; Item #3 to increase by two the number of items of information permitted on freestanding signs - pole signs .to have a maximum of twelve items of information each; monument signs to have a maximum of eight each. The motion carried by the following roll call straw vote: AYES: Kelly, MacAllister, Mandic, Bailey, Green NOES: Finley, .Thomas ABSENT: None A motion was made by MacAllister, seconded by Kelly, to approve Code Amendment No. 84-11, and after reading by title, approve introduction of Ordinance No. 2832, as amended. The motion carried by the following roll call vote: AYES: Kelly, MacAllister, Finley, Mandic, Bailey, Green, Thomas NOES: None ABSENT: None PUBLIC HEARING - CODE. AMENDMENT 85-24 - APPROVED - BUILDING HEIGHT - ORD NO .2946. - INTRODUCTION APPROVED AS AMENDED The Mayor announced that this was the day and hour set for a public hearing continued open from June 2, 1986 to consider Code Amendment 85-24 to modify S. 9080.22 of the definition section of the Huntington Beach Ordinance Code - Building Height. . r l Page 4 - Council Minutes - 6/16/86 The Director of Development Services presented a staff report and stated that he had provided Council with a communication dated June 10, 1986 submitted by Charles Reince. Charles Reince requested that a five foot cap be placed to top of average roof . height. Kirk Kirkland, President of the Huntington Beach/Fountain Valley Board of FleaItors, recommended that common interest developments be addressed sepa- rately. Robert Skinner stated that he represented a development concern and that the proposed ordinance was acceptable to him. He stated the five foot cap in R-1 district was acceptable to him. There being no one present to speak further on the matter and there being no further protests filed, either oral or written, the hearing was closed by the Mayor., The Deputy City Clerk presented Ordinance No. 2846 for Council consideration - "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY AMENDING SECTION 9080.22 DEFINING BUILDING HEIGHTS." A motion was made by MacAllister, seconded by Bailey, to approve introduction of Ordinance No. 2846, as amended with a five foot cap in R-1 Districts, after reading by title. The motion carried by the following roll call vote: AYES: Kelly, MacAllister, Finley, Mandic, Bailey, Green, Thomas NOES: None ABSENT: None PUBLIC HEARING - CODE AMENDMENT 86-11 - APPROVED - ORD NO 2850 AS AMENDED - INTRODUCTION APPROVED - MOBILE HOMES MANUFACTURED HOMES PLANNED DEVELOPMENT & SENIOR RESIDENTIAL SUFFIX The Mayor announced that. this was the day and hour set for a public hearing opened and continued from June 2, 1986 to. consider Code Amendment 86-11 to repeal existing Articles 910.5, 914, 924, 926, 931, 932.5 and 936 of the Hunt- ington Beach Ordinance Code and add new Articles 914 (Mobilehomes) ; 915 (Plan- ned Residential Development), 916 (Manufacture& Homes) and 917 (Senior Resi- dential Suffix). The Director of Development Services presented a staff report. There being no one present to speak on the matter and there being no protests filed., either oral or written, the hearing was closed by the Mayor. The Deputy City Clerk presented Ordinance No. 2850 for Council consideration - "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY REPEALING ARTICLES 910.5, 9140 924, 926, 931, 932.5, 936 AND ADDING THERETO NEW ARTICLES 914 (MOBILEHOMES), 915 (PRD•s), 916 (MANUFACTURED HODS) AND 917 (SENIOR RESIDENTIAL SUFFIX)". A motion was made by Mandic, seconded by Thomas, to amend Ordinance No. 2850 ' to increase the minimum of floor area of studios to 500 square feet. The motion carried by the following roll call vote: 4 Page 14 - Council Minutes - 7/7/86 ORDINA1XCZ NO 2854 - DEFERRED TO 7/21/86 - DELETION OF THE -SS SERVICE STATION SUFFIX - ZC 6-17 "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH A.MMING THE HUNTINGTON BEACH .ORDINANCE CODE BY AMENDING SECTION 9061 THEREOF TO PROVIDE FOR CHANGE OF ZON- ING BY DELETING THE -SS SUFFIX FROM ANY PROPERTY WITHIN THE CITY CURRENTLY DESIGNATED AS SUCH (ZONE CASE NO. 86-17)." ORDINANCE NO 2852 - DEFERRED TO 7/21/86 - A BULANCE SERVICE/AGREEMENT COUNTY OF ORANGE "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH MUNICIPAL CODE BY REPEALING CHAPTER 5.20, AND ADDING THERETO NEW CHAPTER 5.20 ENTITLED, "AMBULANCE SERVICE." ORDINANCE NO. 2850 - DEFERRED TO 7/21/86 - CODE AMENDMENT 86-11 - MOBILE HOMES MANUFACTURED HOMES PLANNED DEVELOPMENT & SENIOR RESIDENTIAL SUFFIX "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY REPEALING ARTICLES 910.5, 914, 924, 926, 931, 932.50 936 AND ADDING THERETO NEW ARTICLES 914 (MOBILEHOMES), 915 (PRD's), 916 (MANUFACTURED HOMES) AND 917 (SENIOR RESIDENTIAL SUFFIX)". (Code Amendment 86-11) ORDINANCE NO 2849 - DEFERRED TO 7/21/86 - CODE AMENDMENT 86-12 - VISITOR SERVING COMMERCIAL DISTRICT OFFICE & COMMERCIAL DISTRICTS "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY REPEALING ARTICLE 949 AND TO RE-TITLE CHAPTER 92 "OFFICE AND COMMERCIAL DISTRICTS" AND ADDING THERETO NEW ARTICLE 924 ENTITLED "VISITOR- SERVING COMMERCIAL DISTRICT" (VSC)." (Code Amendment 86-12) _ ORDINANCE NO 2838 - DEFERRED TO 7/21/86 - CODE AYJWDMENT 86-7 - ZONING PROVI- SIONS - R2- R "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH A:�NDING THE HUNTINGTON BEACH ORDINANCE CODE BY REPEALING ARTICLES 916, 920, 923, AND 932 AND ADDING THERETO NEW ARTICLE 912 ENTITLED "YfEDIUM DENSITY RESIDENTIAL (R2), MEDIUM-HIGH DENSITY RESIDENTIAL (R3), AND HIGH DENSITY RESIDENTIAL MO.- (Code Amendment 86-7) ORDINANCE NO 2832 - DEFERRED TO 7/21/86 - CODE AMENDMENT 84-11 - SIGN CODE "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY REPEALING ARTICLE 976; AND ADDING THERETO NEW ARTICLE 961 ENTITLED, "SIGNS". (Code Amendment 84-11 ) ORDINANCE NO 2846 - DEFERRED TO 7/21/86 - CODE AMENDMENT 85-24 - BUILDING HEIGHT AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY AMENDING SECTION 9080.22 DEFINING BUILDING HEIGHTS." (Code Amendment 85-24) Page 19 - Council Minutes - 7/21/86 ORDINANCE NO 2854 - ADOPTED - DELETING -6S SUFFIX - ZONE CASE 86 17 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY AMENDING SECTION 9061 THEREOF TO PROVIDE FOR CHANGE OF ZONING BY DELETING THE -SS SUFFIX FROM ANY PRCPERTY WITHIN THE CITY CURRENTLY DESIGNATED AS SUCH (ZONE CASE NO. 86 17)." ORDINANCE NO 2852 - ADOPTED - AMBULANCE SERVICE "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH MUNICIPAL CODE BY REPEALING CHAPTER 5.20, AND ADDING THERETO NEW CHAPTER 5.20 ENTITLED, "AMBULANCE SERVICE." ORDINANCE NO. 2850 - ADOPTED - MOBILEHOMES/PRD'S/MANUFACTURED HOMES/SENIOR RESIDENTIAL SUFFIX - CODE AMENDMENT 85 11 "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY REPEALING ARTICLES 910.5, 914, 924, 926, 931, 932.5, 936 AND ADDING THERETO NEW ARTICLES 914 (MOBILEHOMES), 915 (PRD' s), 916 (MANUFACTURED HOMES) AND 917 (SENIOR RESIDENTIAL SUFFIX)". ORDINANCE NO 2849 - ADOPTED - VISITOR-SERVING COMMERCIAL DISTRICT - CODE AKEI F T 6 12 "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY REPEALING ARTICLE 949 AND TO RE TITLE CHAPTER 92 "OFFICE AND COMMERCIAL DISTRICTS" AND ADDING THERETO NEW ARTICLE 924 ENTITLED "VISITOR-SERVING COMMERCIAL DISTRICT" (VSC)." ORDINANCE NO 2838 - ADOPTED - MEDIUM DENSITY RESIDENTIAL/MEDIUM-HIGH DENSITY RESIDENTIAL HIGH DENSITY RESIDENTIAL - CODE AMENDMENT 86-7 "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY REPEALING ARTICLES 916, 920, 923, AND 932 AND ADDING THERETO NEW ARTICLE 912 ENTITLED "MEDIUM DENSITY RESIDENTIAL (R2), MEDIUM HIGH DENSITY RESIDENTIAL (R3), AND HIGH DENSITY RESIDENTIAL (R4)." ORDINANCE NO 2832 - ADOPTED - SIGNS - CODE AMENDMENT 84-11 "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY REPEALING ARTICLE 976; AND ADDING THERETO NEW ARTICLE 961 ENTITLED, "SIGNS". ORDINANCE NO 2846 - ADOPTED - DEFINITION OF BUILDING HEIGHTS - CODE AM M ENT 5 2 "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY AMENDING SECTION 9080.22 DEFINING BUILDING HEIGHTS." ORDINANCE NO 2855 - INTRODUCTION APPROVED - OVERSIZED VEHICLE PARKING REGULATIONS The Deputy City Clerk presented Ordinance No. 2855 for Council consideration "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH MUNICIPAL CODE BY AMENDING SECTION 10.44.060 "OVERSIZED VEHICLE PARKING REGULATIONS." Page 2 - Council Minutes - 10/20/86 PRESENTATION - GORDON WHEATLEY - MASTER OF CEREMONIES FOR MISS HUNTINGTON BEACH PAGEANT The Mayor presented a plaque to Mr. Gordon Wheatley, Master of Ceremonies for the Pageant. PRESENTATION - JEAN SCHUMACHER - PLANNING COMMISSION Mayor Mandic presented a Commemorative Plate to Jean Schumacher for her years of service on the Planning Commission. MEETING ADJOURNMENT SCHEDULED FOR APPROXIMATELY 11:30 P.M. Following discussion it was the consensus of Council to adjourn the Council meeting of October 20, 1986 at approximately 11:30 P.M. PUBLIC HEARING - CONTINUED OPEN TO 11/3/86 - ZONE CHANGE 86-18 - ORD NO 2880 - BUILDING HEIGHTS The Mayor announced that this was the day and hour set for a public hearing to consider Zone Change 86-18, initiated by the City, for an area proximate to Main Street between llth and Palm Streets. Said Zone Change is from. R2 to (Q) R2 with the "Q" designation limiting building height to two stories. Negative Declaration 86-43 assessing the environmental effects of said zone change will also be considered by Council. The City Clerk announced that all legal requirements for notification, publi- cation and posting had been met, and that she had received an informal peti- tion submitted listing approximately 93 signatures of owners and residents favoring Zone Change 86-18. The City Clerk presented Ordinance No. 2880 for Council consideration - "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDI- NANCE CODE AMENDING DISTRICT MAP 11-6-11 TO PROVIDE A CHANGE OF ZONING FROM MEDIUM DENSITY RESIDENTIAL DISTRICT TO QUALIFIED MEDIUM DENSITY RESIDENTIAL DISTRICT AND RESTRICTING THE BUILDING :iEIGHT TO TWO STORIES IN AN AREA PROXI- MATE TO MAIN STREET BETWEEN ELEVENTH STREET AND PALM STREET (ZONE CASE NO.86-18)." The Mayor declared the hearing open. A motion was made by MacAllister, seconded by Kelly, to continue consideration of Negative Declaration 86-43, Zone Change 86-18 and Ordinance No. 2880 to November 3, 1986. The motion carried by the following roll call vote: AYES: Kelly, MacAllister, Finley, Bailey, Green, Thomas NOES: None ABSTAIN: Mandic ABSENT: None 1 30 Page 14 - Council /Agency Minutes - 8/19/91 (City Council) HARBOUR CODE COMMITTEE RECOMMENDATIONS - TO BE PRESENTED 70 PLANNING COMMISSION WITH THIRD STORY AND HEIGHT RECOMMENDATIONS (420.20) The City Clerk presented a communication from the Community Development Director transmitting the recommendations of the Harbour Code Committee rela- tive to third story additions in the R-1 Single Family Zone. Howard Zelefsky, Planning Director, presented a staff report. A motion was made by Winchell , seconded by Green, to present a code amendment to the Planning Commission with regard to third stories and building height recommendation. The motion carried by the following roll call vote: AYES: Winchell , Silva, Green, Kelly, Robitaille, Moulton-Patterson NOES: MacAllister ABSENT: None The following motions made at the end of the meeting: Staff Recommendation To Be Utilized As Policy Guide A motion was made by Winchell , seconded by Green, to direct staff to utilize staff recommendation as policy guide. The motion carried by the following roll call vote: AYES: Winchell , Silva, Green, Robitaille, Moulton-Patterson NOES: MacAllister, Kelly ABSTAIN: Silva ABSENT: None Motion to Reconsider Adopted A motion was made by Kelly, seconded by Green, to reconsider the item pertain- ing to the Harbour Code Committee recommendations. The motion carried by the following roll call vote: AYES: MacAllister, Silva, Green, Kelly, Robitaille, NOES: Winchell , Moulton-Patterson ABSENT: None Proposed Code Amendment - Third Stories/Building Height - Huntington Harbour The motion made by Winchell , seconded by Green, to present a code amendment to the Planning Commission with regard to third stories and building height recommendation carried by the following roll call vote: AYES: Winchell , Green, Robitaille, Moulton-Patterson NOES: MacAllister, Kelly ABSTAIN: Silva ABSENT: None (City Council/Redevelop_ment Agency) REFUNDING THE EMERALD COVE SENIOR HOUSING CERTIFICATES OF PARTICIPATION - JUNES. HALL. HILL, WHITE - BOND COUNSEL - COUNCIL RESOLUTION NO. 6317 & AGENCY RESOLUTION NO. 217 - ADOPTED (600.30) The City Clerk presented a communication from the Deputy City Administrator/ Administrative Services transmitting Agency/Council Resolutions and an Agree- ment for bond counsel services of Jones, Hall , Hill and White relative to the refund of the Emerald Cove Certificates of Participation. To Rich Barnard - Admi n Date 1/24/Sfi Attached is a letter from Charles 0 Reince, 009 reauestine to he placed on the 2/3/R6 Agenda xt.the l4a haun al en attached-F`ei Eatad—Council minutes -for your informStion. act Tim Patin - Day SerV P S Ue will Schedule him Under Puhlic Comments, unless Sig,Me hear otherwise. 3 i; f i Date Signed j Redif rm 4S SEND PARTS 1 AND 3 WITH CARBONS INTACT. {`, Poly Pak(50 sets)4P465 PART 3 WILL BE RETURNED WITH REPLY. HARVEY J. BARISH, D.D.S. CHARLES 0. REINCE, D.D.S. LAWRENCE H. OTA, D.D.S A Professional Corporation pl �y January 1T, 19 t -y, 10 Huntington Beach City Council �„ 2000 Main Street Huntington Beach, California 92648 ENDODONTICS Re: Hassan Construction Project 4471 Los Patos , Huntington Beach, California Dear City Council Members, I would like to be placed on the agenda at the next City Council Meeting to discuss the above referenced project . Please let me know what procedures are to be followed to allow me to present my viewpoint about this topic. Thank you. Respectfully, Charles O. Reince,D.D.S. JA 2 2 1985 D C17YOF HUNTINGTO CITY COUNCIL N BEACH OFFICE 1 3551 Farquhar Ave. • Suite 201 Los Alamitos,CA 90720 . 121 31 596-1 664 . 17141 527-0550 / A Pages14 - Council Minutes - 1/6/86 HASSAN RESIDENCE - 4471 LOS PATOS - HEIGHT PROBLEM RESOLVED - REPORT BEING PREPARED Councilwoman Bailey referred to a letter dated December 18,. 1985, from Charles Reince regarding the height problem of the Hassan residence at 4471 Los Patos. The Director of Development Services stated that the problem had been resolved and that a report was being prepared. TRUCKIBOAT STORAGE - SPRINGDALE S/EDINGER - REPORT REQUESTED Councilwoman Bailey stated she had received a complaint regarding property located on Springdale Street south of Edinger Avenue. She stated that boats. and trucks were stored there and visible from the street. Councilwoman Bailey requested a report from staff regarding the matter. SEMI-TRAILERS WITHOUT CABS/TRACTORS PARKED ON CITY STREETS Councilman Kelly stated his concern regarding parking of semi-trailers without cabs or tractors parked on city streets. The Chief of Police presented a ver- bal report regarding the matter. ILLEGAL SIGNS - TRINIDAD ISLAND Councilman Kelly referred to a letter from the Trinidad Homeowners Association pertaining to illegal advertising signs along public right-of-way. the City Administrator stated that staff had already sent a written response to the complaint. JOANN ULVAN CONCERNS RE PROPERTY LOCATED N/ADAMS W/DELAWARE (OLD TOWN SPECI- FIC PLAN) - REFERRED TO STAFF Councilman Kelly requested the Director of Development Services to contact JoAnn Ulvan who spoke under the Public Comments portion of the meeting regard- ing property located north of Adams Avenue on the west side of Delaware Street in the Old Town Specific Plan. The Director of Development Services stated there was need for a vehicle to make exceptions and that he was working on a study for same. HUNTINGTON VALLEY BOYS/GIRLS CLUB INSTALLATION/MEETING - 1/11/86 Councilman MacAllister invited Councilmembers to attend the annual installa- tion/meeting of the Huntington-Valley Boys and Girls Club scheduled for Janu- ary 11, 1986. TRAFFIC LIGHT - PCH/MARINER - MEETING TO BE SCHEDULED Following discussion, Councilwoman Bailey stated that a meeting of concerned . parties would be scheduled in the near future regarding the proposed traffic light at Pacific Coast Highway and Mariner Drive. Page 13 - Council Minutes - 11/18/85 COMMODORE CIRCLE - REPORT REQUESTED Councilwoman Finley referred to a newspaper article, provided by Donald Troy during the Public Comments portion of the meeting, regarding the proposed use of public funds for Commodore Circle and requested that staff provide her with further information regarding the matter. Later in the meeting Councilman Kelly suggested that Mr. Troy meet with Rich Barnard, Assistant to the City Administrator and in charge of the Commodore Circle Task Force. SB 1567 - SANTA ARIA RIVER - LETTER TO BE SENT TO SENATORS Councilwoman Finley suggested that the Mayor send a letter to Senator Cranston and Senator Wilson regarding SB 1567 pertaining to the Santa Ana River. COUNCIL DELEGATION TO SEE OC SUPERVISORS - TALBERT VALLEY EIR Councilwoman Finley suggested that a delegation, headed by the Mayor, meet wtih members of the Orange County Board of Supervisors prior to the hearing on the Talbert Valley Environmental Impact Report which will be considered Novem- ber 27, 1985. HEIGHT—LIFIITATION--,=-"CONSTRUCTION SAS.,,z.?ATOS` =='-RLPORf REVIEW�ORDIAIAIdCE AL?�0{+IING -10!" ACROSS s BOARD�:IN R- :-NEIGHBORHOODS Councilwoman Finley requested further information regarding the construction at 4471 Los Patos Drive that was referred to by Charles Reince during the Pub- lic Comments portion of the meeting as exceeding height limitations. She requested that staff review the ordinance allowing 10' additional height across-the-board in residential neighborhoods. Later in the meeting Council- man Kelly requested a report regarding the construction at 4471 Los Patos Drive. WINTERSBURG EVENING HIGH SCHOOL - STUDENTS' RESOLUTION PRESENTED TO COUNCIL. Councilwoman Bailey presented a resolution passed by the student body at Even- ing High School at Wintersburg volunteering service to the City. ALLIED ARTS BOARD REQUEST RE: HCP AMPHITHEATER - TO BE AGENDIZED 12/2/85 Councilwoman Bailey referred to a communication from the Allied Arts Board requesting that the currently budgeted $20,000 for the Central Park Amphithea- ter be used for an architect to design plans for construction of the amphi- theater and the remaining 1985-86 fund balance be used to initiate construc- tion of the project. She requested that consideration of the matter be placed on the December 2, 1985 agenda. REMOVAL OF ILLEGAL SIGNS IN PUBLIC RIGHT-OF-WAY Councilwoman Bailey referred to a letter from David Garza dated November 8, 1985 transmitting copies of a newspaper article describing the city of Ingle Page 7 - Council Minutes - 11/18/85 Center, Inc. , for the preparation of a preliminary study of the economic and financial performance considerations for a Cousteau entertaining educational , facility within the Main-Pier Redevelopment Project Area. Mike Adams, Principal Planner/Redevelopment presented a staff report. Following discussion, a motion was made by Bailey, seconded by Green, to auth- orize the preparation of a contract between the City and Cousteau Ocean Cen- ter, Inc. , to conduct a preliminary feasibility study, commencing on or about December 1, 1985, and concluding 90 days later in an amount not to exceed $19,950. The motion carried by the following roll call vote: AYES: Bailey, Mandic, Finley, Greet. NOES: Kelly, MacAllister, Thomas ABSENT: None ADJOURNMENT The Chairman adjourned the regular meeting of the Redevelopment Agency. PUBLIC COMMENTS Donald Troy addressed Council regarding a newspaper article and urged that federal funds be withheld from Commodore Circle property owners. He presented the newspaper article to Council. The Mayor directed staff to contact Mr. Troy with further information regard- ing the matter. LCh=ar Reince�=eddrtif iFd`�`�ounci=lZiri'ardiii sa=-con�trueaion .°;pzoject, iocat:ed_;at . .,: :"L4.71 Los=Pe pe'�w i <lie be3 a eu. v olatO&lii li!T tablet ons. They Meyer-rea uett`ed,- era port-'" &ro t=affrx:egardi g the:matter:.. - Don Davis, representing Atlantic Richfield, addressed Council regarding pro- posed Code Amendment No. 85-8 (Agenda Item F-2) pertaining to prohibition of the sale or consumption of alcoholic beverages. He suggested the issue be monitored through the Conditional Use Permit process. He suggested an open forum with citizens on the issue. he stated that his company was willing to relocate the _Arco gas station presently located at Slater Avenue and Golden- west Street. Carolyn Allen stated she was opposed to the sale of alcoholic beverages at gas stations. She showed slides of a beer bottle that had been improperly dis- posed of at the Arco gas station located at Slater Avenue and Goldenwest Street. Frank Gifford presented aerial photographs of property near Intrepid Lane -(Agenda I_em F-3). He supported the proposed parking permit district. Dan Higginbotham addressed Council in support of the proposed parking permit district. Gerald Jones addressed Council in opposition to the proposed parking permit district. x ` ` r . r = il k } - :� � I - $ } — -Y. �` .-- ATTOFL'N-EY�-A' LAW -} _ Y j - y --_ - 1 ,.ST PHE"N S gSAKl HA`NTHORNE.SAVINGS 'BUILDI'�G TELEP ON._, t 7 - - _ . - ; 3 , R7C HARD C CARsON :L: _ a _g <. -35�2 KATELLA AVEN.0 E.SUL�C"203 [ (213L-4a3 S. 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RE C01TS.TRt1CTION -.03' IIASSAN` PE-J NT.CL L - , 44v.1' :LO.S P•ATOS , H.UNT'IN.GTO'V _B);WCH , CALZFORNIA ` fzy _y ti - t - _ ; ;V_ o- max, Dear Mr;` Hassan _X � • i� f-_ f y-"- L -F t CT _ _ _ _ - - y �' l w V s Please be ~advised, that i h.� s aaw f� rm has been retained -te L. y = ` re,'pres,ent ._the �_n_teres'Ls o:f llr'.•, and M'rs C`har''1es 0 ezn=ce > . cotncernsng ::=-i'hc i.mhairm. Ent-: of 1'he * . v e ; from t:hezr res-idence ICY located at 172i1 <<'arin`a View ".Place , Huntzngt'on ;Beac'-h , ., Calzf.orn � a'.; . occasioned`. 'b"y , tie-. -co- on o>L your abov e �. ref`eren,ced -res -_de t t t= t 1 f �r � - As Yyou are :-aware from pr. or -d� scusGi ons, zt is t`i.e c i,lontent}- on _of r ,4 , yt: the and=ers :gn"ed ar._.:d, hi.s c '_ icrts; Lha't ports ons -o,f } ou'i pro �os,ed `" re's-zden'ce._,e`xceed i=n" .hei:ght.•,ch' 1 R t, on"s 1.a1:lowed and-; 6`pLed `,Y,7 ,.• „ sh �� � the C� .t.y o-i IIuntan. gt.on '..Bea.ch , ":as �ie11 as the Jn:� f,or'in 1.BuJld�'nC X ` s`. ?, Code Th� `s lei te:r con isms those.. oral repre`sAnLatzons andZl� } cy, ; --..- - _ - _ _- .�. s: r x r--: x contentions } t 't, - - 1.1_ _ _ 3 --b. 4.r t_ - ; , It ;is t:he des re of n c7 zc'nl a reach az, amp cablse re'sol utzon :of - z X ). . 7 thi'.s pr"obhem: A.c,cor.dingly , ','requc-st � s' re,speci fully made chat you s 'azthI... lI {urtlier ,;construe �i _on l o,: your res.� den-ce,, par L-icu tar ly j n k those -areas-'ieferablc t_o .tlie . most norther.-n west and no-rthern east 't r - poi,-2 or:s of t.h.e roof . , ,. • r ' It is m'yurthe_r under staizding t..haL ur Robe'rt Sa*�doster , Del„u`ty ;{ Gity Attorney as .w.e1'1 as o.the'r-. � ndi u� duals from the P1.anni.:ra } F De partaent ,. w.i.l1_ "be con due-1 in_b air:; on s� ,- uzsi t and} sure -y , . i . refera,hle t.o thi's problem i_n Lhe Ri;nediaCe f r ure ,, .. 1. - ; 'a 7'- - _ 1. - - Y F -t 1 t - _ I C ,i - .. r M. S T f -1 - F - t h � O ; a - - - - r- �" -x I. - Yj- _j; -tµ . - {--� y- r 7 liSAKI A-D C:1PS0 . 'ATTORNEYS AT L.4VJ• __ - • - - September. 30 , 1985 Mr , Emad Ali Hassan Re : Charles 0 . Reince/View Impairment Page 2 Should you, or your legal counsel , havi any questions concerning. , the contents of this letter , or wish to further discuss same ;: , please do not hesitate to call or Write this office . Sincerely , RICHARD C. CASON RCC: pjl cc : Dr . and Mrs . Charles 0. Reince