HomeMy WebLinkAboutCity Attorney Legal Opinions - 1987/94 Index in file �J CITY OF HUNTINGTON BEACH
V INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH
To Connie Brockway From Gail Hutton
City Clerk City Attorney
Subject Appeal of Councilwoman Date June 22 , 1989
Winchell from Planning
Commission' s Action EIR 89-3 and TT13920
QUESTION
Was the appeal filed by Councilwoman Grace Winchell validly filed?
ANSWER
No .
FACTS
The action of the Planning Commission' s approval of EIR 89-3 and
TT13920 was taken on June 6 , 1989 . Councilwoman Winchell ' s appeal
was filed with the clerk' s office on June 19 , 1989 . According to
Councilwoman Winchell, on June 5 , 1989 she gave a note to the
council secretary with instructions to file the appeal . The appeal
was typed that day and left for Councilwoman Winchell ' s signature.
It was not signed until June 19 , 1989 , which is the day it was
delivered to the City Clerk for filing .
ANALYSIS
The rule concerning appeals from the Planning Commission is found in
the Huntington Beach Ordinance Code, Title 9 Article 998 . This
section states that an appeal must be taken within ten (10) days .
The Huntington Beach Ordinance Code provides no relief to a late
filing requirement .
Search has disclosed no prior legal opinions from this office on
this issue.
In Yoakley, Zoning Law & Practice § 13 , paragraph 5, the author
states , "Where the appeal is not timely perfected the board is
without authority to hear the appeal on the merits . " (cites) .
In Rathkopf, The Law of Planning and Zoning, page 41-43 , the
following appears, "Where (the) rule . . . require(d) that an appeal
be taken within 30 days after the decision complained of , it was
held that the board had no authority to hear an appeal on the
merits" (when the notice was late) . (cites) .
Given these authorities we conclude that there is no jurisdiction
for the council to hear the late appeal of Mrs . Winchell .
GAIL HUTTON
City Atto-rney
CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
HUNnNCTON BEACH
TO: Connie Brockway, City Clerk
FROM: Gail Hutton, City Attorney
DATE: July 25, 1995
SUBJECT: Appointment to P.F.C. Board
RLS 95-446
ISSUE
You have asked whether the spouse of a city councilmember may hold a position as
a Director of the Public Facilities Corporation.
ANSWER
Yes.
ANALYSIS
The Public Facilities Corporation is a non-profit corporation of the State of
California, organized in November 1970. Its express purpose is to render assistance
to the City of Huntington Beach by constructing or providing for the construction of
public buildings, including the city hall and library.
The P.F.C. consists of seven members. Each member sits on the Board of Directors.
New directors are appointed or elected by the Board. The City Council does not
appoint the directors of the P.F.C.; however, the Council can reject a proposed
director by resolution transmitted or delivered to the P.F.C. board within 30 days
after Notice of the appointment has been given to the Council. (P.F.C. Bylaws, Art.
V., Section 1.)
The City Charter provides that the City Council cannot appoint a relative of a
councilmember to any salaried position in city government. (Section 313.) In the
present circumstance, however, this charter section will not be violated for several
reasons. First, the Council is not making the appointment; second, the position is
not salaried; and third, the position is not in the city government.
4:G:PFC Brd\7/25/95
Connie Brockway
July 25, 1995
Page 2
CONCLUSION
For the reasons stated above, the spouse of a current City Councilmember is not
barred from serving as a Director of the Public Facilities Corporation.
'&-'( 4V'-
Gail Hutton
City Attorney
c: Pat Dapkus, Management Assistant
Robert Franz, Deputy City Administrator
Dan Villella, Director of Finance
4:G:PFC Brd\7/25/95
Fj
�4 CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH
TO: Connie Brockway, City Clerk
FROM: Rober� Sangster, Acting City Attorney
DATE: June 24, 1992
SUBJECT: Campaign Contribution Ordinance
I had a call today from Judy Stevens of Santa Monica who
requested information about our $300 campaign contribution
limit, and in particular how the one year period has been
computed. She indicated that she understood that the ordinance
proscribed contributions of excess $300 for a period of one year
preceding an election until one year after an election.
Attached is a copy of our opinion, which concludes that the
period is one year, not two, revolving around the fulcrum of an
election. I suppose this question will continue to come up,
since Council declined to adopt the clarify ordinance that we
prepared. We have suggested that a Council committee meet and
review this issue, but insofar as we are aware none has. Until
such time as Council enacts an ordinance modifying the campaign
contribution ordinance, we advise following the interpretation
set forth in the March 26, 1991, opinion.
Please feel free to distribute this opinion to anyone interested.
Attachment
cc: Michael Uberuaga, City Administrator
J� 4 CITY OF .HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
hlL"nNG70M BEACH
To Linda Moulton-Patterson From Gail Hutton
Council Member City Attorney
Subject Campaign Contribution Date March 26 , 1991
Limits
You asked about the application of the city' s contribution
limitations to your 1990 election campaign. In particular, does
the definition of "calendar year" impose, in effect, a two-year
restriction or is the restriction a one-year period surrounding
the election date? We conclude that the ordinace imposses a
one-year restriction of six months on either- side of the
election.
The Huntington Beach ordinance limits contributions in support
of a candidacy to $300 by individuals and by a PAC to $1500 .
The ordinance provides -that:
"Expenditures or contributions-made within the period of
twelve (12) months prior and subsequent to any election
are considered to be made in support of a candidacy at
such election. " (Section 2 . 05. 050)
The definition of "calendar year" is susceptible to three
interpretations .
First, it may invoke an envelope of 12 months around an
election--6 months on each side of the election date.
Second, it may mean the true calendar year, from January 1- to
December 31, .. encompassing the time during the calendar year
before and after the election.
Third, it may impose a two-year period, one year before the
election and one year after .
In interpreting the statute, we are obliged to- look plain
meaning whenever possible and apply a common sense
interpretation. We are also mindful that restrictions upon
contributions are to an extent limitations on the right of free
expression and should be narrowly construed.
+ Linda Moulton-Patterson
March 26 , 1991
Page 2
Taking the possible interpretations in order :
1. Six months on each side of an election.
This interpretation seems to make the most sense. First,
the reference is to "year, " not "years . " The intent seems
to create a window of one year, not two . Second, . the
intent. seems to be to define a year period around an
election. This is consistent with the history of changing
election dates , which have been variously in April or
November, and maintains flexibility in the ordinance to
adjust to different elections dates . Third, if the intent
was to create two twelve-month periods, it would have been
easy to say so . we think that the section imposes one
twelve-month period, pivoting on the fulcrum of an election.
2 . A true calendar vear . January 1 to December 31.
A less compelling case may be made for a true calendar
year. The section heading is "Calendar year, " which
traditionally means January 1 to December 31 (the Gregorian
year) . But headings are not controlling. The text of the
section uses the words "twelve (12) months prior and
subsequent to any election. " It would have been easy to
specify "calendar year" or "January 1 to December 31" in
the text.. Instead, the language avoids the touchstone of
the usual calendar year, and speaks of a period of 12
months . Accordingly, we conclude that, despite the
heading, the intent is not to define a true calendar year.
3 . A two-near period .
If the intent is to create a two-year year, the drafting
was particularly inartful. It would have been simple to
state "a period of twelve months preceding an election and
twelve months subsequent .to an election. " Instead, the
section speaks in terms of one twelve-month period. Thus,
since the plain language does not impose this two-year
period, we are reluctant to impose it through
interpretation.
It may be noted that the Political Reform Act placed a $1000
• limit on contributions to candidates by individuals "in any
fiscal year. " (Section 85301) The fiscal year is July 1 to
June 30 . This provision was held unconstitutional in Service
Employees International Union, AFL-CIO, CLC v. FPPC (ED Cal .
1990) 747 F. Supp. 580 on the grounds that measuring
contributions on a fiscal year basis rather than by election
unconstitutionally restricted free speech and favored incumbents
over challengers . The court held that the fiscal year
limitation failed the legitimate governmental interest and
Linda- Moulton-Patterson
March 26 , 1991
Page 3
narrow tailoring tests, since a contribution limit by election
would provide less benefits to incumbents . In reviewing
election campaigns , the court found that challengers generally
do not enter races years before an election, that incumbents
raise substantial amounts of money during each of the years of
incumbency, and that fiscal year limits impact challengers in an
election year to a greater degree than incumbents . Thus, the
contribution limits by fiscal year were held unconstitutional .
It is likely that some contribution limits are constitutional,
under the plurality opinion in Buckley v. Valeo (1976) 424 U. S.
1, although they operate in "an area of the most fundamental
first amendment activities . " But the limitation must be
narrowly tailored to minimize the restraint on free
communication and maximize equal access to elected office.
The Huntington Beach ordinance speaks to contributions with
respect to a candidacy, not with respect to fiscal years . It is
certainly arguable that a longer period limiting contributions
before an election favors incumbents, who enjoy greater -
resources, name recognition, access to the media, and a greater
ability to raise money. An interpretation favoring a shorter
limitation period related to an election rather than to some
year period is more consistent with the right of political
expression enunciated in the SEIU case.
CONCLUSION
The ordinance defines contributions in support of a candidacy as
contributions made within a one-year period, that period
revolving around the election with six-month periods on each
side. we drafted an ordinance clarifying the limitation.
14�fllrGail Hutton
City Attorney
GH:RCS: sg
cc: Michael Uberuaga, City Administrator
Mayor and Members of the City Council
Connie Brockway, City Clerk
sv
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RECEDED
CITY CLE;?K
J, CITY OF HUNTINGTON BEACH - H�'4r;+;��`'tY OF
' INTER-DEPARTMENT COMMUNICATION
�Le 13 1 �l P `30
►+uranrIeTav eeweM
To Grace Winchell From Robert C. Sangster
City Council Member Deputy City Attorney
Subject Aggregating Campaign Date August 10, 1990
Contributions
INTRODUCTION•
A question has been posed concerning campaign contribution
limits from various legal entities . These questions are generated
by comments contained in the 1990 information manual published by
the FPPC which notes at page 19 ,
"Contributions from an individual' s personal funds and from any
other funds which he or she in fact directs must be aggregated" .
"Contributions made by two or more entities must be aggregated
if the same person or a majority of the same persons in fact
directs and controls the contribution. "
The booklet goes on to note that contributions by entities in a
parent-subsidiary relationship must be aggregated unless the
entities act independently.
The genesis of these instructions is Government Code §85312,
passed as part of Proposition 86 in 1988. That sectio,, provides
that two or more entities are treated as one person for purpose of
the state' s $1, 000 campaign contribution limit when the two:
1. Share a majority of their boards of directors .
2 . Share two or more offices .
3 . Are owned or controlled by the same majority shareholders.
4 . Are in a parent-subsidiary relationship .
5. Are an individual and a general partnership where the
individual owns a controlling interest.
6 . Are an individual and a corporation where the individual
owns a controlling interest.
The issue is whether the aggregation rules apply to
contributions within the city' s $300 limit.
ISSUE:
Do the rules treating two or more entities as one person set
forth in Government code §85312 apply to the $30a contribution limit
in the Huntington Beach Municipal Code?
r
ANSWER• ,
No .
ANALYSIS•
The state has a higher campaign contribution limit than does
the city. The state' s limit is $1,000 to a candidate per
individual . (Government Code §85300/85301) . The city has a limit
of $300 on contributions by any individual contributor to a
candidate or controlled committee. (HBMC §2.05 .020)
Government Code §85312 by its own terms applies only to the
state ' s limit . The introductory language to that section reads,
"For purposes of the contribution limitations in Sections
85300-85307, inclusive, and Section 85310, the following shall apply
. . . . " This section does not purport to apply its definitional
standards to contributions under local limits . The city, in
enacting its own ordinance setting a lower threshold for
contributions , is not bound by §85312 in interpreting its
ordinance. The FPPC has advised me that it only applies the
aggregate contribution rules to its own limits, and not to local
ordinances . In our opinion, the FPPC also does not have
jurisdiction to interpret our city ordinance.
The city' s campaign contribution ordinance does provide that
the definitions in Chapter 2 of Title 9 of the Government Code
(Political Refort Act) govern interpretation of the ordinance,-
however, §85312 is in Chapter 5 and not in the definitional
Chapter 2.
Interpretation of. the city's contribution limit therefore
continues to be based upon general law and the definitions in
. Chapter 2. There is no definition- of "contributor" in Chapter 2,
although the PRA does define "contribution, " which basically
includes any payment., forgiveness of a loan, payment of a loan by a
third party, or enforceable promise to make a payment, except to the
extent that consideration is received, unless it is clear from the
surrounding circumstances that it is not made for political purposes .
The Huntington Beach ordinance does not define "contributor"
either. In the past we have applied the general concept of "person"
in identifying a contributor. Interpretations of the word "person"
in construing the Constitution apply the word not only to natural
persons, but to corporations . (Pembina etc. Co. v. Pennsylvania
(1888) el L.Ed. 650, 653 . ) The Supreme Court early held that a
corporation was an "artificial being. " (Trustees of Dartmouth
College v. Woodward (1819) 4 L.Ed. 629) "Person" is not limited to
citizens either; the term includes aliens . (Kwong Hai Chew v.
Colding (1953) 97 L.Ed. 576, 585 . ) Municipalities have also been
held to be "persons . " (Mongll v. Dept. of Social Services (1978) 56
L.Ed. 2d 611. ) Both electors and persons who are not electors may
be contributors .
We are not aware of any FPPC guidelines governing the
aggregating of contributions that apply to the city' s ordinance
limits .
Accordingly, we do not view it as necessary to inquire into the
internal operations and records of corporate contributors . In a
practical sense, there is no vehicle to inquire into the identity of
the shareholders, directors, and officers of a corporation for
purposes of applying our municipal code provisions to campaign
contributions . If a corporation is validly organized and qualified
to do business in the State- of California, it may, in our opinion,
be treated as a contributor.
The state' s "same as" rules will apply to contributions that,
if aggregated, would exceed $1,000 . So you need to be careful if
contributions from related entities reach that limit.
Robert C. San ster
Deputy City Attorney
cc: City Administrator
City Clerk
Deputy City Attorneys
REQUEST FOR CITY COUNCIL ACTION
Date
Submitted to: MAYOR AND MEMBERS OF THE CITY COUNCIL
�- J
Submitted by: �%G, IL HUTTON, CITY ATTORNEY
'lvtyys�.h dot
Prepared by: GAIL HUTTON, CITY ATTORNEYa >
Subject: HASSAN CONDITIONAL EXCEPTION CE 91-28 /�,tAi�Q.hJ �~ T MAA-'0
t.LP.C�'ta fti
Consistent with Council Policy? [X] Yes [ ] New Policy or Exception
Statement of Issue, Recommendation,Analysis, Funding Source,Alternative Actions,Attachments:
ISSUE•
Should the city waive any conflict of interest, so that Rutan &
Tucker can represent Emad Ali Hassan?
RECOMMENDATION•
The city will not be prejudiced by waiving the conflict and
should do so.
ANALYSIS•
An attorney or law firm may not represent any party if it has a
conflict of interest . Michael Rubin of Rutan & Tucker has
requested that ;the city waive any conflict to permit the firm to
represent Mr . Hassan. Rutan & Tucker represents the sanitation
district, of which the city is a member, and represents the city
in some condemnation actions (Holly-Seacliff) . The firm also
represents other parties against the City and Redevelopment
Agency, notably Jonathan Chodos and other developers .
We do not see any actual conflict of interest if Rutan & Tucker
represent Mr. Hassan. There is no relationship with any other
matters the firm is handling and no problem with confidential
information or communications .
FUNDING SOURCE:
N/A
No 5/85
CITY OF HUNTINGTON BEACH
17 INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH Y I
To Barbara Kaiser, Director From Robert Sangster
Economic Development Deputy City Attorney
Subject Termination of Lease Between Date September 11, 1991
Redevelopment Agency and
Pier Side Development
The letter dated September 4, 1991, to Stanley Bloom providing
notice of termination of the subject lease has been received by
Mr . Bloom, Uri Gati, Bryant Morris and Jeffrey Oderman as
indicated by the attached receipts for certified mail . Copies
of the letter designated for Pi`b�r Side Development, Pier Side
Inc. , Huntington Pacifica I, AVIV Group Limited, AVIV
Development Corporation, and Pacific Heritage Corporation were
sent to Jeffrey Oderman.
Please retain these receipts for certified mail with the
official documents of the Agency, either in your files or in
those of th ity Clerk.
Robert San ste
Deputy City Attorney
Attachments
Jtr'
• SENnER) Complete items 1 and 2-when additional services are desired, and complete kerns
3 end 4..
Pitt-your address in the"RETURN TO"Space on the reverse side.Failure to do this will prevent this .
cs't -from being returned to you.The return receipt fee will Provide you the name of the person delivered
totem d the date of delivery.Fora t ona eea t e o ow ng services are ava a e.Consult postmaster
fo► as and c eC c boxtest for additional service(s)requested.
1. ❑ Show to whom delivered,date,and addressee's address. 2. ❑ Restricted Delivery
(Euro charge) (Extra charge) .
3: Article Addressed to: 4. Article Number
Mr. Bryant L. Morris T pe of Service:
Pier Side Inc. LJ Registered O insured
Certified ❑COD
Bryant Morris Development Express Mail ❑Return Receipt
Return
3790 Via De Lavalle, #2D4
Cori. Always obtain signature of addressee
Del Mar CA 92014 or agent and DATE DELIVERED,
b. ddress l
� 92r�r� _ S. Add Address (ONLY U
X
6. Signature —Agent Q
x S.�
7: Date of Delivery ,Uj
PS Form 3811,Mar. 1988 • 'I.Map: -i 8-212-86b DOMESTIC RETURN RECEIPT
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UNITED STATES POSTAL SERVICE N - + `f' r•
OFFICIAL BUSINESS
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SENDER INSTRUCTIONS
Print your name,address and ZIP Code `�' '.; `� ',Ic;
In the space below. -
• Complete Items 1,2,3,and 4 on the
reverse. S.M IL
• Attach to front of article B space
permits, otherwise affix to back of
article. PENALTY FDA PRIVATE
• Endorse article "Return Receipt USE, $300
Requested"adjacent to number.
RETURN Print Sender's name, address, and ZIP Code In the space below.
TO
City Attorney, .Attn• R. Sang;G Pr-
P.O. Box 2740
Huntington Beach, CA 92647
Ililixtililx!lliitlill,ti!!liltlixtixllii!lxxiili3!!
P' 66 156 517
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RECEIPT FOR CERTIFIED MAIL
NO INSURANCE COVERAGE PROVIDED
NOT FOR INTERNATIONAL MAIL
(See Reverse)
sent to Mr. Uri E. Gati
AVIV Group Limited
Street and No.
222 5th Street
P.O.,State and ZIP Code
O
0
d Postage $
pl
i Certified Fee
Special Delivery Fee
Restricted Delivery Fee
Return Receipt Showing
to whom and Date Delivered
04 Return receipt showing to whom,
CO
IN Date,and Address of Delivery
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STICK POSTAGE STAMPS TO ARTICLE TO COVER FIRST CLASS POSTAGE,
• - CERTIFIED MAIL FEE,AND CHARGES FOR ANY SELECTED OPTIONAL SERVICES.(see from)
1. If you want this receipt postmarked.stick the gummed stub on the left portion of the address side of the article
leaving the receipt attached and present the article at a post office service window or hand it to your rural carrier.
_(no extra charge)
2. If you do not want this receipt postmarked.stick the gummed stub on the left portion of the address side of the
article,date,detach and retain the receipt,and mail the article.
-3. It you want a return receipt.write the certified mail number and your name and address on a return receipt card.
Form 3811.and attach it to the front of the article by means of the gummed ends if space permits.Otherwise.affix
fb back of article. Endorse front of artile RETURN RECEIPT REQUESTED adjacent to the number.
4. If you want delivery restricted to the addressee. or to an authorized agent of the addressee. endorse
RESTRICTED DELIVERY on the front of the article.
5. Enter fees for the services requested in the appropriate spaces on the front of this receipt.If return receipt is re-
quested,check the applicable blocks in item 1 of Form 3811.
6.Save this receipt and present it if you make inquiry.
•`SCND : Complete Items 1 and 2 when additional services are desired, and complete Items
3 and 4.
Put your address in the"RETURN TO"Space on the reverse side.Failure to do this will prevent this
card front being retumed to You.The return receipt fee will provide you the name of the person delivered
to and the date of delivery.For additionalees Ins o ow ng services are ava a e.Consult postmaster
Tor Tees and c ec c ox es for additional service(s)requested:
1. ❑ Show to whom delivered,date,and addressee's address. 2. ❑ Restricted Delivery
(E t-charge) (Eura shame)
-3: Article Addressed to: 4. Article Number
Jeffrey Oderman, Esq. P 663 1: 523
Rutan & Tucker T e of Service:
Registered ❑ Insured
611 Anton Blvd. , #14 0 0 Re
ertifled ❑COD
Box 1950 Express Mail ❑Return Receipt
for Merchandise
Costa Mesa, CA 9 2 6 2 6-9 9 9 0 Always Q¢tain signature of addressee
or agent an;DATE DELIVERED.
5. slanature _Address 8: Addressee's Address (ONLY(f
,X ` requested and fee paid)
8. 1 natu Agent
X . 01
7. Dab of
- 9• �/
PS Form 381 1988 * U.B.QP.O. 1988-212-885 DOMESTIC RETURN RECEIPT
UNITED STATES POSTAL SERVICE
OFFICIAL BUSINESS
SENDER INSTRUCTIONS
Print your name,address and ZIP Code
in the apace below.
• Complete kerns 1,2,3,and 4 on the U
• Attach to front of article N space -�
Permke,otherwise affix to back of
am, PENALTY FOR PRIVATE
• Endorse article "Return Receipt USE,8300
Requested"adjacent to number.
RETURN Print Sender's name,address,and ZIP Code In the space below.
TO
City Attorney, Attn: R. Sangster
Box 2740
Huntington Beach, CA 92647
p `663 '156 522
RECEIPT FOR CERTIFIED MAIL
NO INSURANCE COVERAGE PROVIDED
NOT FOR INTERNATIONAL MAIL
(See Reverse)
sent toMr. Bryant L. Morris
Mt and No.
0 Via De Lavalle, 4 04
o. e I stMard zl CAde92014
d
c7 Postage $
ri
* Certified Fee
Special Delivery Fee
Restricted Delivery Fee
Return Receipt Showing
to whom and Date Delivered
04 Returnreceipt showing to whom,
a, Date,and Address of Delivery
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m TOTAL Postage and Fees $
J.
Postmark or Date
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STICK POSTAGE STAMPS TO ARTICLE TO COVER FIRST CLASS POSTAGE,
s - CERTIFIED MAIL FEE,AND CHARGES FOR ANY SELECTED OPTIONAL SERVICES.(see front)
1. If you want this receipt postmarked,stick the gummed stub on the left portion of the address side of the article
leaving the receipt attached and present the article at a post office service window or hand it to your rural carrier.
ono extra charge)
2. If you do not want this receipt postmarked.stick the gummed stub on the left portion of the address side of the
-article,date.detach and retain the receipt.and mail the article.
3. If you want a return receipt.write the certified mail number and your name and address on a return receipt card,
Form 3811,and attach it to the front of the article by means of the gummed ends if space permits.Otherwise,affix
to back of article. Endorse front of artile RETURN RECEIPT REQUESTED adjacent to the number.
4. If you want delivery restricted to the addressee, or to an authorized agent of the addressee. endorse
RESTRICTED DELIVERY on the front of the article.
5. Enter fees for the services requested in the appropriate spaces on the front of this receipt.If return receipt is re-
quested,check the applicable blocks in item 1 of Form 3811.
6.Save this receipt and present it if you make inquiry.
• SENDER: Complete items 1 and 2 when additional services are desired, and complete Items
3 crd 4..
Put your address in the"RETURN TO"Space on the reverse side.Failure to do this will prevent this
card from being returned to you.The return receipt fes will provide vog the name of heperson delivered
to nd the date of delive :Foradditional Toes e o ow ng services are ava a e. onsu t postmaster
Tor.toes and check ox(ea for additional service(s)requested.
1. ❑ .Show to whom delivered,date,and addressee's address. 2. ❑ Restricted Delivery
(F.rpn charge_) .0Wna charge)
3. Article Addressed to: 4. Article Number
P 6.63 156 .517
Mr. Uri E. Gat i T e of Service:
AVIV Group Limited Registered ❑Insured
Gat i Assoc. , Inc. Certified ❑COD
2 2 5 th Street Express Mail ❑Return rcRechenetp9e
or Me
Huntington— ch, CA 92648 Always obtain signature of addressee
or agent and DATE DELIVERED.
8. nature —Address S. Addressee's Address (ONLY if
X / -- - requested and fee Paid)
S: ure ant
7. Date of Delivery
PS Form 3811,Mar. Inn • U.S.O.P.O. 1988-212=886 DOMESTIC RETURN RECEIPT
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UNITED STATES POSTAL SERVICE
OFFICIAL BUSINESS
SENDER INSTRUCTIONS C ITY AT 1-0 R 01 E Y
the spa .
Print your name,address and ZIP Code CITY OF
Coon llattee°kerns 1.X S,and 4 on the HIMITINGTOF1,%, C E A C M a�a>•
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• Attach uS�
ch to front of article It space
permits,otherwise affix to beck of SEP ,� .'9 4I( 0
article. PENALTY FOR PRIVATE
• Endorse article "Return Receipt USE, $300
Requested"adjacent to number.
RETURN Print Sender's name,address,and ZIP Code'in the.space below.
TO
- City Attorney, Attn:• R. Sangster
P.O. Box 2740
Huntington Beach, CA 92647
P - 66'3 ,lS6 523
RECEIPT FOR CERTIFIED MAIL
NO INSURANCE COVERAGE PROVIDED
NOT FOR INTERNATIONAL MAIL
(See Reverse)
r` Sent JeWfre Oderman, Esq.
Street and No. Rutan & Tucker
CP.O.,State and ZIP Code
d osta_.Mesa CA 92626-9990
d Postage $
t/)
* Certified Fee
Special Delivery Fee
Restricted Delivery Fee
Return Receipt Showing
to whom and Date Delivered
m Return receipt showing to whom,
w Date,and Address of Delivery
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m TOTAL Postage and Fees $
U.
Postmark or Date
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• - STICK POSTAGE STAMPS TO ARTICLE TO COVER FIRST CLASS POSTAGE,
CERTIFIED MAIL FEE,AND CHARGES FOR ANY SELECTED OPTIONAL SERVICES.(see front)
1. If you want this receipt postmarked.stick the gummed stub on the left portion of the address side of the article
leaving the receipt attached and present the article at a post office service window or hand it to your rural carrier.
(no extra charge)
2. If you do not want this receipt postmarked.stick the gummed stub on the left portion of the address side of the
article, date,detach and retain the receipt,and mail the article.
3 If you want a return receipt.write the certified mail number and your name and address on a return receipt card,
Form 3811.and attach it to the front of the article by means of the gummed ends if space permits.Otherwise.affix
to back of article. Endorse front of artile RETURN RECEIPT REQUESTED adjacent to the number.
4. If you want delivery restricted to the addressee, or to an authorized agent of the addressee, endorse
RESTRICTED DELIVERY on the front of the article.
5. Enter fees for the services requested in the appropriate spaces on the front of this receipt.If return receipt is re-
quested,check the applicable blocks in item 1 of Form 3811.
6. Save this receipt and present it if you make inquiry.
SENDER: Complete items 1 and 2 when additional services are desired, and complete items
4.
Put yo r a dress in the•"RETURN TO"Space on the reverse side:Failure to do this will prevent this
card from being returned to you:The return receipt fee will rovide ou the nam of theperson delivered
to and the date of deliver .For t ona ees thefollowing services are ava a e. onsu t postmaster
or fees and check box(es)for;additional service(s)requested.
1. ❑ Show to whom delivered,date,and addressee's address. 2. ❑ Restricted Delivery
(Exem charge) (&ma charge)
3. Article"Addressed to: 4. Article Number
P 663 156 516
14r. Stanley Bloom, President T pe of Service:
Pacific Heritage Corporation Registered O insured
CO
2905 E. 50th Street Certified ❑ Return Receipt
LO S Angeles; •CA 90058 Express Mail for Merchandise
Always.of*ln signature of addressee
or agent and DATE DELIVERED.
5. Signature —Address 8. Addressee's Address (ONLY(f
X requested and fee paid)
6. ignature —Agen
7. Date of Delivery
PS Form 3811 `Nl0088 * U.&CLP.O. 1986-212-886 DOMESTIC RETURN RECEIPT
_ r
UNITED STATES POSTAL SERVICE
OFFICIAL BUSINESS
SENDER
name,INSTRUCTIONS
and NS
Print your name,address and ZIP Cods
In the space below.
• Complete Items 1,2,3,and 4 on the U.B.-
reverse. �0
• Attach to front of article If space
permits,otherwise affix to back of
article. PENALTY FOR PRIVATE
• Endorse article "Return Receipt USE, $300
Requested"adjacent to number.
RETURN Print Sender's name,address,and ZIP Code in the space below.
TO
City Attorney' s Office, Attn: Sangster
P.O. Box 2740
Huntingtn„ RQa;h, CA 92647
llfitttlitif1111tlt.11ttt111tttltttltltt1 lift fill III
. FS J663 � 5 3 516
RECEIPT FOR CERTIFIED MAIL
NO INSURANCE COVERAGE PROVIDED
NOT FOR INTERNATIONAL MAIL
(See Reverse)
sr'to Stanley Bloom, Pre
v treet and No.
905 E. 50th St.
P.O.,State and ZIP Code
O
d
CJ Postage $
ui
* Certified Fee
Special Delivery Fee
Restricted Delivery Fee
Return Receipt Showing
to whom and Date Delivered
Return receipt showing to whom,
o) Date,and Address of Delivery
T
TOTAL Postage and Fees $
U.
Postmark or Date
chi
E
0
U.
rn
a
• STICK POSTAGE STAMPS TO ARTICLE TO COVER FIRST CLASS POSTAGE,
CERTIFIED MAIL FEE,AND CHARGES FOR ANY SELECTED OPTIONAL SERVICES.(see front)
1. If you want this receipt postmarked.stick the gummed stub on the left portion of the address side of the article
leaving the receipt attached and present the article at a post office service window or hand it to your rural carrier.
(.o extra charge)
2. If you do not want this receipt postmarked,stick the gummed stub on the left portion of the address side of the
article,date,detach and retain the receipt, and mail the article.
3. If you want a return receipt,write the certified mail number and your name and address on a return receipt card.
Form 3811,and attach it to the front of the article by means of the gummed ends if space permits.Otherwise.affix
io back of article. Endorse front of artile RETURN RECEIPT REQUESTED adjacent to the number.
4. If you want delivery restricted to the addressee. or to an authorized agent of the addressee. endorse
RESTRICTED DELIVERY on the front of the article.
5.Enter fees for the services requested in the appropriate spaces on the front of this receipt.It return receipt is re-
quested,check the applicable blocks in item 1 of Form 3811.
6.Save this receipt and present it it you make inquiry.
V :• .
N.=i
o City yf Huntington Beac h
2000 MAIN STREET CALIFORNIA 92648
OFFICE OF THE CITY ADMINISTRATOR
September 4, 1991
Mr. Stanley Bloom, President
Pacific Heritage Corporation
2905 E. 50th Street
Los Angeles, California 90058
Re: Notice of Termination of Lease Between
Huntington Beach Redevelopment Agency and
Pier Side Development dated November 20, 1986
Dear Mr. Bloom:
By this letter, the Redevelopment Agency of the City of Huntington Beach (the "Agency")
hereby provides notice that pursuant to California Civil Code section 1598 the Agency
believes that the agreement between the Agency and Pier Side Development ("Pier Side")
dated as of November 20, 1986 (the "Agreement") for lease of certain real property on
the ocean side of Pacific Coast Highway south of Huntington Beach Pier (the "Property")
is void and of no effect as terminated by operation of law due to impossibility of
performance. The Agency entered into lengthy and substantial negotiations to provide for
a different project relying on your representation that the Agreement was financially
impossible for the Developer to perform and from that point the Agreement as drafted
was abandoned. Now that it is clear that the parties have not been able to agree on new
project terms it is appropriate and the Agency has directed me in my capacity as
Executive Director to send formal notice that the Agreement has terminated by
operation of law as void due to impossibility of performance and as abandoned by both
parties.
Very truly yours,
REDEVELOPMENT AGENCY OF THE APPROVED AS TO FORM:
CITY OF HUNTINGTON BEACH
kic� eruaga Agency Counsel �2G�
Executive Director
cc: Mr. Uri E. Gati, AVIV Group Limited
Mr. Bryant L. Morris, Pier Side Inc.
Jeffrey Oderman, Esq., Rutan & Tucker
Gail Hutton, City Attorney/General Counsel
Barbara Kaiser, Deputy City Administrator
Thomas P. Clark, Jr., Esq., Special Agency Counsel
Dawn C. Honeywell, Esq., Special Agency Counsel
PIER SIDE DEVELOPMENT, a California general partnership
PIER SIDE INC., a California corporation
HUNTINGTON PACIFICA I, dba HUNTINGTON PACIFICA
DEVELOPMENT GROUP, a California limited partnership
AVIV GROUP LIMITED, a California limited partnership
AVIV DEVELOPMENT CORPORATION, a California corporation
PACIFIC HERITAGE CORPORATION, a California corporation
Telephone (714) 536-5202
¢, �� o f,91na( & 3U, 30
O, Sa
. I. ' CITY OF HUNTINGTON BEACH '
O
INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH
To Ray Silver From Gail Hutton
Assistant City Administrator City Attorney
Subject Affordable Housing Date September 5, 1991
RLS 91-581
BACKGROUND
The City Council is considering the adoption of an affordable
housing strategy. The proposed strategy contains a revised goal
of fewer affordable units than the adopted Housing Element of
the General Plan. In light of this proposal, you have asked- for
an opinion regarding the state legal requirements in the area of
affordable housing.
ISSUES AND ANSWERS
Question 1: Must the City adopt an affordable housing strategy?
Answer: The City is not required by law to adopt an
affordable housing "strategy. " As a policy matter, however, its
adoption is a good idea in the sense that it will help implement
the Housing Element of the General Plan.
Question 2: What does the state require the City to do
concerning affordable housing?
Answer : The law requires the City to address certain
affordable housing issues as part of the Housing Element of the
City' s General Plan. The law also requires the City to
incorporate into the Housing Element a program containing a five
year schedule of actions to implement the goals of the Housing
Element.
Question 3 : Is the proposed strategy consistent with the
Housing' Element of the City' s General Plan?
Answer: No, because it purports to adopt a different
numerical goal of affordable housing units than the City' s
Housing Element of the General Plan calls for.
Question 4 : What are the consequences of the City' s failure to
act as required by law?
Answer: If the City does not comply with the state' s legal
requirements, the state might refuse to re-certify the Housing
Element in the future or the Housing Element might be subject to
judicial challenge. The City risks facing severe legal
consequences if its General Plan is judicially determined to be
inadequate.
Ray Silver
September 5, 1991
Page 2
DISCUSSION
I . General Requirements Concerning Affordable Housing that
Must Be Addressed in Housing Element
A housing element is one of seven mandatory elements of a
city' s general plan. The general plan' s housing element must
address certain issues pertaining to affordable housing. These
issues include:
a . A quantification of the City' s existing and projected
housing needs for all income levels . (Cal . Gov' t Code Section
65583(a) (1) ) . "
b. An analysis of potential and actual governmental
constraints upon the maintenance, improvement, or development of
housing for all income levels, including land use controls,
building codes and their enforcement, site improvements, fees
and other exactions required of developers, and local processing
and permit procedures . (Cal.' Gov' t Code Section 65583 (a) (4) ) .
c. An analysis of potential and actual nongovernmental
constraints upon the maintenance, improvement, or development of
housing for all income levels, including the availability of
financing, the price of land, and the cost of construction.
(Cal . Gov' t Code Section 65583(a) (5) ) .
d. An analysis of existing assisted housing developments
that are eligible to change to non-low-income housing uses
during the next ten years due to termination of subsidy
contract, mortgage prepayment, or expiration of use
restrictions . (Cal . Gov' t Code Section 65583(a) (8) ) .
e. A program which sets forth a five year schedule of
actions the City is undertaking or intends to undertake to
implement and achieve the goals and objectives of the housing
element . The program must:
1 . Identify adequate sites which will be made
available through appropriate zoning and development standards
and with public services and facilities needed to facilitate and
encourage the development of a variety of types of housing for
all income levels, including rental housing, factory-built
housing, mobile homes, emergency shelters and transitional
housing in order to meet the community' s housing goals as
identified in California Government Code Section 65583(b) .
Ray Silver
September 5, 1991
Page 3
2. Assist in the development of adequate housing
to meet the needs of low- and moderate-income households.
3 . Address and, where appropriate and legally
possible, - remove governmental constraints to the maintenance,
improvement, and development of housing.
4 . Conserve and improve the condition of the
existing affordable housing stock.
5 . Promote housing opportunities for all persons
regardless of race, religion, sex, marital status, ancestry,
national origin, or color.
6 . Preserve for lower income households the
assisted housing developments identified pursuant to California
Government Code Section 65583(a) (8) . The program for
preservation of the assisted housing developments shall utilize,
to the extent necessary, all available federal, state, and local
financing and subsidy programs identified therein, except where
a community has other urgent needs for which alternative funding
sources are not available. The program may include strategies
that involve local regulation and technical assistance.
The program shall include an identification of
the agencies and officials responsible for the implementation of
the various actions and the means by which consistency will be
achieved with other general plan elements and community goals .
The local government shall make a diligent effort to achieve
public participation of all economic segments of the community
in the development of the "housing element, and the program shall
describe this effort.
Please note that the proposed "strategy" is not the
"program" required by state law. The "program" must be included
as a part of the Housing Element itself . The "strategy" is not
an official part of the Housing Element, but is a necessary
implementation device to achieve the goals of the Housing
Element.
II . No Requirement to Allocate Funds
While it is mandatory that the City' s general plan address
the affordable housing issues referenced above, the City is not
required to expend local revenues for the construction of
housing, housing subsidies, or land acquisition. (Cal . Gov' t
Code Section 65589(a) (1) ) .
Ray Silver
September 5, 1991
Page 4
III . New Housing Construction
New housing developments constructed within the coastal zone
shall, where feasible, provide housing units for persons and
families of low or moderate income. (Cal . Gov' t Code Section
65590(d) ) . "Feasible" means capable of being accomplished in a
successful manner within a reasonable period of time taking into
account economic, environmental, social and technological
factors . (Cal. Gov' t Code Section 65589 .5(h) (1) ) . If not
feasible to do so within the new development, the City may
require the developer to provide such housing, if feasible, at
another location within the City, either within the coastal zone
or within three miles thereof . Incentives such as density
bonuses and modification of zoning requirements may be offered by
the City in order to assist the provision of such new. housing
units . (Cal . Gov' t Code Section 65590 (d) ) .
IV. Certification Process
At least 90 days prior to the adoption of its housing
element, the City must submit the draft element to the California
Department of Housing and Community Development. The Department
reviews the draft element and reports its findings to the City.
If the Department determines that the draft adequately complies
with state law, it "certifies" the draft. If the Department
finds that the draft does not substantially comply,. the City can
either change the draft element or adopt it without changes .
(Cal . Gov' t Code Section 65585) .
The item at issue is a "strategy, " not a housing element or
an amendment thereto. Therefore, it does not need to be
submitted to the Department for "certification. " However, we
note that the "strategy" references a lower numerical goal of
affordable housing units than the number contained in the Housing
Element of the General Plan. We are concerned that if the City
adopts a "goal" number lower than as set forth in the Housing
Element, it may lead to problems when the City seeks
re-certification of the Housing Element in the future or may
subject the Housing Element to judicial challenge. Thus, we
recommend that the lower number of units be referenced in the
strategy as an "estimate of actual units" rather than as a "goal"
or "revised goal . " A revision of the goal would require amending
the Housing Element.
V. Consequences for Failure to Act as Required by Law
If the Department notifies the City that its draft housing
element does not substantially comply with state law, the City
may still adopt the draft housing element. But the City must
include written findings in its resolution of adoption which
explain the reasons the City Council believes that the draft
Ray Silver
September 5, 1991
Page 5
element substantially complies with state law despite the
Department' s non-certification. (Cal. Gov't Code
Section 65585(f) (2) ) .
The consequences of having a non-certified housing element
are potentially severe. If one element of the General Plan is
inadequate, the entire General Plan is technically void. If a
court finds that an action of a city which is required to be
consistent with its general plan does not comply with its housing
element, the city must bring its action into compliance within 60
days. (Cal. Gov't Code Section 65587(c) ) . In its order or
judgment, the court may include such draconian measures as the
suspension of the city' s authority to issue building permits,
grant zone changes or variances, or grant subdivision map
approvals . (Cal. Gov't Code Section 65755(a) ) .
RECOMMENDATION
While the adoption of the proposed "strategy" is not required by
state law, it is a proper policy decision in order to help
implement the Housing Element of the General Plan. The strategy
should be amended to numerically mirror or approximate the
Housing Element of the General Plan to avoid adopting a goal that
is inconsistent with goals provided in the Housing Element.
Gail Hutton
City Attorney
cc: Michael Uberuaga, City Administrator
Mayor and Members of the City Council
Mike Adams, Director of Community Development
Paul D'Alessandro, Deputy City Attorney
Arthur Folger, Deputy City Attorney
Barbara Kaiser, Director of Economic Development
Sarah Lazarus, Deputy City Attorney
Pat Spencer, Director of Housing & Redevelopment
Howard Zelefsky, Planning Director
J� 'Ir"14%
CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH
To ROBERT SANGSTER From GAIL HUTTON
Deputy City Attorney City Attorney
Subject Request of Councilwoman Date February 28 , 1991
Linda Moulton-Patterson for
Legal Opinion
Councilwoman Patterson has inquired regarding limitations on
contributions to her November 6 , 1990 , election campaign.
Huntington Beach Municipal Code Chapter 2 . 05 dealing with
limitations on contributions and reporting of late campaign
contributions has a specific provision which establishes at
section 2 . 05 . 050 the definition of calendar year :
2 . 05 . 050 Calendar Year .
"Expenditures or contributions made within the period of
twelve ( 12) months prior and subsequent to any election
are considered to be made in support of a candidacy at
such election. "
That provision read together with section 2 . 05 . 020 and 2 . 05 . 030
seems on its face to limit contributions to a total of $300 . 00 per
person one year before and one year after the election date for
individual contributions and section 2 . 05 . 030 is the same; a total
of $1, 500 . 00 one year before and one year after—limitation for
aggregating funds donated by PACs . Thus , both could be interpreted
to be a total of two years .
Perhaps you could research this calendar year provision in the light
of Political Reform Act limitations and definitions . It does appear
that that provision is susceptible of an interpretation that the
whole election period could be six months before and six months
after any election though the term calendar year seems to indicate
otherwise and creates an inference of a total two year limitation
period .
DUE DATE : March 17 , 1991
GAIL HUTTON
City Attorney
GH/rj 1
cc : Councilwoman Linda Moulton-Patterson
Councilwoman Grace Winchell
Connie Brockway, City Clerk
OFFICE OF
'°" CITY ATTORN EY
.cad=-�• s��
P.O.BOX 2740
2000 MAIN STREET
�glITt
HUNTINGTON BEACH
CALIFORNIA 92647
GAIL HUTTON TELEPHONE
City Attorney (714)536.6555
August 29, 1990
Ms. Grace Winchell
6411 Weber Circle
Huntington Beach, California 92647
Dear Ms. Winchell:
Congratulations on your decision to seek public office in the City of Huntington Beach. I
am forwarding herewith an opinion of this office prepared by Deputy City Attorney
Robert Sangster at your request in answer to your question:
"Do the rules governing two or more entities as one person set forth
in Government Code § 85312 apply to the $300.00 contribution
limit in the Huntington Beach Municipal Code?"
For the reasons set forth in the attached opinion, the answer is no.
I felt that this clarification would be of assistance to all Huntington Beach city
candidates and their treasurers in the November 1990 election.
If you have any further questions in regard to interpretations of Huntington Beach
Municipal Code § 2.05.010 dealing with limitation of campaign contributions and
reporting of late campaign contributions previously supplied to you by the city clerk,
please do not hesitate to contact our office. Mr. Robert Sangster, Deputy City Attorney,
will be pleased to assist you.
Sincerely,
JOSEPH C. BARRON
Acting City Attorney
JCB/rjl
cc: Connie Brockway, City Clerk
Attachments: Memorandum to Grace Winchell, City Councilmember, regarding
Aggregating Campaign Contributions, dated August 10, 1990
r
r
CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH
To Grace Winchell From Robert C. Sangster
City Council Member Deputy City Attorney
Subject Aggregating Campaign Date August 10, 1990
Contributions
INTRODUCTION•
A question has been posed concerning campaign contribution
limits from various legal entities . These questions are generated
by comments contained in the 1990 information manual published by
the FPPC which notes at page 19 ,
"Contributions from an individual ' s personal funds and from any
other funds which he or she in fact directs must be aggregated" .
"Contributions made by two or more entities must be aggregated
if the same person or a majority of the same persons in fact
directs and controls the contribution. "
The booklet goes on to note that contributions by entities in a
parent-subsidiary relationship must be aggregated unless the
entities act independently.
The genesis of these instructions is Government Code §85312,
passed as part of Proposition 86 in 1988 . That section provides
that two or more entities are treated as one person for purpose of
the state ' s $1, 000 campaign contribution limit when the two:
1 . Share a majority of their boards of directors .
2 . Share two or more offices .
3 . Are owned or controlled by the same majority shareholders .
4 . Are in a parent-subsidiary relationship .
5 . Are an individual and a general partnership where the
individual owns a controlling interest.
6 . Are an individual and a corporation where the individual
owns a controlling interest .
The issue is whether the aggregation rules apply to
contributions within the city' s $300 limit .
ISSUE:
Do the rules treating two or more entities' as one person set
forth in Government code §85312 apply to the $300 contribution limit
in the Huntington Beach Municipal Code?
ANSWER:
No .
ANALYSIS :
The state has a higher campaign contribution limit than does
the city. The state ' s limit is $1, 000 to a candidate per
individual . (Government Code §85300/85301) . The city has a limit
of $300 on contributions by any individual contributor to a
candidate or controlled committee. (HBMC §2 . 05 . 020)
Government Code §85312 by its own terms applies only to the
state ' s limit . The introductory language to that section reads ,
"For purposes of the contribution limitations in Sections
85300-85307, inclusive, and Section 85310 , the following shall apply
This section does not purport to apply its definitional
standards to contributions under local limits . The city, in
enacting its own ordinance setting a lower threshold for
contributions, is not bound by §85312 in interpreting its
ordinance. The FPPC has advised me that it only applies the
aggregate contribution rules to its own limits , and not to local
ordinances . In our opinion, the FPPC also does not have
jurisdiction to interpret our city ordinance.
The city' s campaign contribution ordinance does provide that
the definitions in Chapter 2 of Title 9 of the Government Code
(Political Refort Act) govern interpretation of the ordinance;
however, §85312 is in Chapter 5 and not in the definitional
Chapter 2 .
Interpretation of the city' s contribution limit therefore
continues to be based upon general law and the definitions in
Chapter 2 . There is no definition of "contributor" in Chapter 2,
although the PRA does define "contribution, " which basically
includes any payment, forgiveness of a loan, payment of a loan by a
third party, or enforceable promise to make a payment, except to the
extent that consideration is received, unless it is clear from the
surrounding circumstances that it is not made for political purposes .
The Huntington Beach ordinance does not define "contributor"
either . In the past we have applied the general concept of "person"
in identifying a contributor . Interpretations of the word "person"
in construing the Constitution apply the word not only to natural
persons , but to corporations . (Pembina etc. Co . v. Pennsylvania
(1888) el L.Ed. 650, 653 . ) The Supreme Court early held that a
corporation was an "artificial being . " (Trustees of Dartmouth
Colle4e v. Woodward (1819) 4 L.Ed. 629) "Person" is not limited to
citizens either; the term includes aliens . (Kwong Hai Chew v.
ColdinQ (1953) 97 L.Ed. 576, 585 . ) Municipalities have also been
held to be "persons . " (Monell v. Dept . of Social Services (1978) 56
L.Ed. 2d 611 . ) Both electors and persons who are not electors may
be contributors .
We are not aware of any FPPC guidelines governing the
aggregating of contributions that apply to the city' s ordinance
limits .
Accordingly, we do not view it as necessary to inquire into -the
internal operations and records of corporate contributors . In a
practical sense, there is no vehicle to inquire into the identity of
the shareholders, directors , and officers of a corporation for
purposes of applying our municipal code provisions to campaign
contributions . If a corporation is validly organized and qualified
to do business in the State of California, it may, in our opinion,
be treated as a contributor .
The state ' s "same as" rules will apply to contributions that,
if aggregated, would exceed $1, 000 . So you need to be careful if
contributions from related entities reach that limit .
Robert C. Sa gster
Deputy City Attorney
cc: City Administrator
City Clerk
Deputy City Attorneys
PW
dee'
F
B
CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH
To CONNIE BROCKWAY From JOSEPH BARRON
City Clerk Acting City Attorney
Subject Councilman Bannister Date July 17 , 1990
simultaneously run-
ning for the offices of
City Councilman and
Insurance Commissioner .
Following a review of California case-law and the applicable
state statutes , I have determined that there is no statutory
prohibition preventing Councilman Bannister from running for the
offices of Huntington Beach City Councilman and state Insurance
Commissioner during the same election period.
J SEPH BARRON
sting City Attorney
cC'rn
c_+o
C7
o�Tt�cil, appoint such depaty or deputies to assist him or act for him,
at such salaries or compensation as the Council may by ordinance or -
T '
resolution prescribe. C
Section 312. VACANCIES, FORFEITURES AND REPLACEMENT.
(a) Vacancies. A vacancy in the City Council or in any other
f office designated as elective by this Charter, from whatever cause aris-
i ing, shall be filled by appointment by the City Council. '-
1 (b) Forfeiture. If a member of the City Council is absent from
I all regular meetings of the City Council for a period of thirty con-
secutive days from and after the last regular City Council meeting
attended by such member, unless by permission of the City Council ex-
pressed in its official minutes, the office shall become vacant. If
an elected City officer is convicted of a crime involving moral turpi-
tude or ceases to be an elector of the City, the office shall become
vacant. The City Council shall declare the existence of such vacancy.
Any elective officer of the City who shall accept or retain any other
elective public office, except as provided in this Charter shall be J.
deemed thereby to have vacated the office under the City government.
i (c) Replacement. In the event it shall fail to fill a vacancy
by appointment within sixty days after such office shall become vacant,
the City Council shall forthwith cause an election to be held to fill
such vacancy for the remainder of the unexpired term.
Section 313. CONFLICT OF INTEREST, NEPOTISt•t.
(a) Conflict of Interest. The City Councii shall adopt or ap-
prove rules and regulations regulating conflicts of interest and pro-
Imoting fair dealing in all City business.
(b) Nepotism. The City Council shall not appoint to a salaried
position under the City government any person who is a relative by
blood or marraige with the third degree of any one or more of the
members of such City Council, nor shall the City Administrator or any
department head or other officer having appointive power appoint any
relative of such person or of any Council member within such degree
to any such position. This provision shall not affect the employment
or promotional status of a person who has attained a salaried position
with the City prior to the existence of a situation contemplated by
this provision; however, Council members or officers with appointive -
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OF HUNTINGTON BEACH „,,
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INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH
W azo,
To Connie Brockway From Gail Hutton
City Clerk City Attorney
Subject Opinion on Council Members Date March 28, 1990
Running for State Offices
Ouestion•
Does winning a June Primary State Office election disqualify a
council member from runnning for City Council?
Answer :
No . c
s�
Discussion: %�
Charter Section 312(b) provides in relevant part : 90�9 c
"Any elective officers of the City who shall
accept or retain any other elective public f
office . . . shall be deemed thereby to have
vacated the office under the City Government . "
Conclusion:
Accordingly, unless the council member actually accepts the state
office, there is no legal basis in the charter to preclude one
from running for state office.
GAIL HUTTON
City Attorney
{
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l 30. .3b
REQUEST FOR CITY COUNCIL/ )T4
REDEVELOPMENT AGENCY ACTIO R91-21
April 15, 1991
Date
Submitted to:
Honorable Mayor/Chairman & City Council/Redevelopment Agency Members
Michael T. Uberuaga, City Administrator/Chief Executive Office�
Submitted by: /'
�
Barbara A. Kaiser, Deputy City Administrator/Economic Develop menV: f/
Prepared by: TRANSFER OF CITY PROPERTY (PIERSIDE RESTAURANTS LEASE E) TO
THE REDEVELOPMENT AGENCY AND FIRST AMENDED PIERSIDE LEASE
Subject: BETWEEN AGENCY & STANLEY M. BLOOM FOR PIERSIDE RESTAURANTS
PROJECT/MAIN—PIER PROJECT AREA
Consistent with Council Policy? ( ] Yes [ ] New Policy or Exception
Statement of Issue, Recommendation, Analysis, Funding Source,Alternative Actions,Attachments;
STATEMENT OF ISSUE:
On March 18, 1991, the City Council/Redevelopment Agency deferred action on the
transfer of city property (Pierside Restaurants Lease Site) to the Redevelopment Agency
and First Amended Pierside Lease between the Agency and Stanley M. Bloom pending the
City Attorney's legal opinion of whether or not the subject site is considered "Waterfront"
property.
The City Attorney has issued the attached opinion dated April 3, 1991. In short, it states
"the property is arguably Waterfront," but that a lease (as opposed to sale) of Pierside
property would not constitute a sale or conveyance for purposes of Government Code
Section 37351, and therefore, would not require a four—fifths (4/5) vote, finding that the
property is not suitable for a park or beach. Mayor Green has requested that another legal
opinion be obtained from an independent law firm that specializes in coastal issues.
In addition, staff has been, at the direction of the Agency, analyzing and negotiating new
terms for the proposed First Amended Pierside Lease.
RECOMMENDATION:
1) Defer all actions relating to the Agreement for the Purchase and Sale of Property for
the Pierside Restaurants project.
2) Consider for appropriate action the City Attorney's legal opinion dated April 3, 1991, »•�,m m
outlining the related legal issues pertinent to the proposed transfer of the Pierside
property. _~
C17 T
3) Consider Mayor Green's memo dated April 5, 1991, and discuss with Council to
consider whether or not to authorize staff to seek an additional legal opinion.
4) Direct staff to proceed, as appropriate, with attached Schedules A, B, or C.
9�d'!•'iflN
43Rt333b
NO 4/84
ANALYSIS:
On, or about, August 19, 1985, a Disposition and Development Agreement was entered into for
the development of the site located at Pacific Coast Highway and Main Street. On November
20, 1986, the Pierside Lease was executed. On February 20, 1990, the Agency approved a
conceptual plan for development of the "Pierside Restaurants" (see attached). A proposed
First Amended Pierside Lease for the development of 48,522 square feet of restaurant and
beach-related retail uses with 611 parking spaces has been negotiated by staff.
The Planning Commission approved Environmental Impact Report 90-2, Conditional Use Permit
No. 90-17, and Coastal Development Permit No. 90-18 at its meeting of November 6, 1990.
The Planning Commission's actions were appealed and on March 18, 1991, the City Council
approved the abovementioned entitlements (staff report attached).
The City Attorney has stated that Measure C, as passed last November, "probably" applies to
the Pierside property in question. Therefore, in order to transfer the Pierside property,
Measure C requires a majority of votes approving the transfer/sale by both the City Council
and the electorate. A special election could be scheduled for Tuesday, November 5, 1991. In
order to add a Measure to the ballot for Pierside Restaurants for that election, Council would
need to approve a resolution requesting consolidation of elections with the county by July 7,
1991.
FUNDING SOURCE:
1) None as a result of this action.
ATTACHMENTS:
1) City Attorney's legal opinion dated April 3, 1991.
2) Mayor Green's memo dated April 5, 1991.
3) Staff report dated February 20, 1991.
4) Staff report dated March 18, 1991.
5) Pierside Tentative Action Plans.
MTU/BAK/KBB:is
8837r
CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH
To Honorable Peter Green, Mayor From Gail Hutton
and Members of the City Council City Attorney
Subject Pierside Property - Date April 3 , 1991
Vote Required for a Lease
INTRODUCTION:
On November 13 , 1990 , we advised that a four-fifths vote . might
be required for a conveyance of pierside property from the city
to the Redevelopment Agency, since the property is arguably
"water front . " Government Code S 37351 reads as follows :
"The legislative body may purchase, lease, exchange, or
receive such personal property and real estate situated
inside or outside the city limits as is necessary or proper
for municipal purposes . It may control , dispose of , and
convey such property for the benefit of the city. The
legislative body shall not sell or convey any portion of a
water front, except to the State for use as a public beach
or park, unless by a four-fifths vote of its members the
legislative body finds and determines that the water front
to be sold or conveyed is not suitable for use as a public
beach or park. "
Council has been asked to consider a transfer of the city' s
interest in the Pierside property to the Redevelopment Agency,
an agreement between the city and the Agency, and a lease
between the Agency and the developer, subject to a vote of the
people . For the reasons herein stated we counsel structuring
the transaction to provide for a lease by the city rather than a
deed, and amend the lease to limit the overall term to 66 years .
ISSUE: Does a lease of Pierside property trigger the
requirement of a four-fifths. vote finding that the property is
not suitable for a park or beach? (Government Code § 37351. )
BOTTOM LINE: No . A lease is not a sale or conveyance for
purposes of q 37351 . However, a deed of the city' s title to the
Redevelopment Agency would be considered a conveyance. In that
event, the elements of § 37351 must be considered. We view the
property as water front, but are of the opinion that the
requirement to find property not suitable for use as a beach or
,park is only applicable where the proposed use is not consistent
with beach or park purposes . The Council may find that the
proposed use is a legitimate park use, since the proposed use
includes public promenades , access to the tidelands , view access
of the water and beach, and parking .
Honorable Peter Green, Mayor
and Members of the City Council
April 3 , 1991
Page 2
Throughout the state and nation there are restaurants in park
settings and other commercial structures ( like the refurbished
roller coaster in San Diego) , so restaurants are not an anathema
to park use .
Any deed or conveyance should be restricted to park use . If a
use is a proper park use, there is no need for a four-fifths
vote to determine the property is not suitable for a park. As
noted, however, a lease by the city would be preferable to a
deed of the city' s interest to the Redevelopment Agency.
It should also be noted that there are ample mechanisms
available to protect the public interest, including the
California Coastal Act , CEQA, and the charter requirement of a
vote of the people on such leases .
BACKGROUND:
The statute in question is a revision of a statute that dates
back to 1883 , and was amended in 1957 to add the latter
limitation regarding a four-fifths vote . The statute in general
focuses on a grant of authority to legislative bodies to
purchase, convey, lease or exchange real property for municipal
purposes , and the 1957 amendment adds a limitation on the power
to sell or convey water front property. Although there are a
number of cases cited in the annotations to the code, none of
these cases defines "water front" and none deals with the
required finding of whether water front is "suitable" for use as
a public beach or park.
We have researched a number of sources in an effort to define
the terms and apply this section to the Pierside situation. The
term "water front" is not an engineering term that has any
common meaning, as does "beach, " "shore, " "mean high tide line, "
and the like . We conferred with the U. S . Army Corp of
Engineers , Waterways Experiment Station, in Vicksburg,
Mississippi , and found that their shoreline manual does not
contain any definition of "water front . " Nor do the regulations
promulgated by the California Coastal Commission define "water
front . "
A review of the opinions of the Attorney General of California
does not shed any light on this issue, except that in a 1946
opinion involving the City of Newport Beach, the Attorney
General opined that land in Corona del Mar which was the site of
a proposed state park (presumably the Corona del Mar State
Beach) lying above the ordinary high water mark of the Pacific
Ocean was water front, and that submerged lands below the mean
high tide line did not constitute water front . The words "water
0
Honorable Peter Green, Mayor
and Members of the City Council
April 3 , 1991
Page 3
front" are defined in the American Heritage Dictionary as land
abutting on a body of water, such as a lake or harbor . Water
front does not include the water beyond the mean high tide line
or the underlying land, and ordinarily means land fronting on a
body of water . See City of Long Beach v . Lisenby ( 1917) 175
Cal . 575 , 166 P. 333 , 335 .
We have also spoken with other coastal cities , including San
Diego, San Francisco, Long Beach, Newport Beach and Los Angeles
and are informed that none of these cities has rendered any
opinion on the applicability of the section, and that none
follows the procedures set forth in the section.
For the reasons stated, it is our opinion that § .37350 is not
applicable to the subject project .
In analyzing the applicability of § 37351, we need to make three
inquiries . First , is the property water front? Second, would a
lease of the Pierside property for a term of years constitute a
sale or conveyance? Third, if so, may the City Council find it
is not "suitable" for use as a public beach or park?
Preliminarily, we note that this Government Code § 37351 is in
the general. provisions portion of the Government Code dealing
with city property. Primarily, the provisions of this section
of the Government Code focus on general law of cities , and one
must read each section to determine whether it applies to a
charter city.
A charter city has exclusive powers over municipal affairs .
(Cal . Constitution, Article 11 , § 5 . ) In matters of local
concern, city charters "supersede all laws inconsistent
therewith. " (Id . ) It is a judicial question whether a matter
is a municipal affair , and legislative declarations are not
determinative (Bishop v. San Jose (1969) 1 Cal . 3d 56, 81
Cal .Rptr . 465 . ) While it may be argued that leases of local
parks and beaches are matters of state-wide concern, local land
use planning is a uniquely local concern, except as the city may
have adopted state planning law (Government Code § 65803) or are
required to act by statutes of state-wide application, such as
the requirement for a general plan. (Government Code § 65300 . )
We do not conclude that S 37351 is superseded by the charter as
to the subject property, but we do note in passing that there is
at least an argument along these lines . This argument is
buttressed by the subsequent enactment of a matrix of planning
laws which are applicable to charter cities which serve to
protect environmental and coastal resources , such as the
California Coastal Act, the California Environmental Quality
�J
Honorable Peter Green, Mayor
and Members of the City Council
April 3 , 1991
Page 4
Act, and various general planning statutes that protect coastal
areas . Further , our charter also has provisions which were
recently enacted by the voters as Measure C which require a vote
of the people prior to any sale or lease of any park or beach
property, so the charter provides ample protections for the
interests of the public and an opportunity for the citizens of
the community to express their views on the disposition of such
property. Accordingly, we expressly decline to determine whether
or not the four-fifths vote and the findings required by § 37351
with regard to water front property are binding on a charter city
such as the City of Huntington Beach. Instead, we base our
decision that the statute is inapplicable upon a reading of the
section and comparison with other sections within the Government
Code provisions relating to city property.
It is also our opinion that § 37351 is intended to deal with the
sale of property for purposes other than a public beach or park.
If the section were literally interpreted to apply to any lease.
of water front property for a use which would be an appropriate
use of beach or park lands , the statute would preclude even a
lease of a hotdog stand or to provide parking for beach patrons .
We will conclude that a lease of any water front property for a
purpose which would otherwise be allowable in a public beach ar
park is not subject to the section.
ANALYSIS:
1. Question: Is the property water. front?
Answer : Yes .
As we noted above, water front is defined in the court cases
by what it is not rather than what it is . Water front is not the
land or water seaward of the mean high tide line; it is the land
upland of the mean high tide land . No cases define how far
inland the water front property goes , although most of the cases
deal with piers and wharfs , which are directly touched by water .
In the case at bar, the property is clearly uplands and is ,
separated from the mean high tide land by a broad expanse of
beach and a beach access road . The property is mostly the area
beyond and above the bluffs , and has been paved and used for a
variety of purposes for at least the last 50 years . The property
has been used for a building housing some restaurants, for
.parking of cars , for a snack bar, and for a lifeguard
headquarters . The property is certainly beach front property;
but it does not front on the water . (See our opinion of January
30 , 1991, defining beach in the context of the beach parking lot . )
0
Honorable Peter Green, Mayor
and Members of the City Council
April 3 , 1991
Page 5
We recognize that reasonable minds can differ on the question of
whether property fronting on a beach is water front property;
indeed it is difficult for property to be closer to the water
than that which fronts on beach. On balance , we are inclined to
conclude that the subject property is water front , recognizing
that this proposition is not free from doubt , and the
Legislature has some duty to provide language which is clear and
explicit when it is drafting a statute restricting property
rights .
2 . Question: Would the proposed transaction operate to "sell
or convey" the property?
Answer : No .
When reading the section as a whole, the conclusion is
inescapable that the restriction does not apply to leases . This
conclusion is buttressed by sections in the subsequent chapters
of the Government Code which expressly deal with leases .
Accordingly, § 37351 would operate to prevent a sale of the
subject property for a use unrelated to park or beach uses ,
unless the property were unsuitable for such uses .
The first sentence of. § 37351 expressly discusses the powers of
a legislative body to purchase, lease, exchange, control ,
dispose of , and convey property. The restriction on water front
is confined to actions of a legislative body to "sell or convey"
water front property. As a matter of legislative
interpretation, the omission of the word "lease" from the
restrictions suggest a legislative intent to confine the
restriction to conveyances or sales other than leases .
A conveyance, in the strict legal sense, is a transfer of title
to real property. (Black' s Law Dictionary, 4th Ed. ) It
normally denotes any transfer of title, whether legal or
equitable . (Id . ) Title is generally the union of all elements
which constitute ownership, and is more than a mere possessory
right in land . (Id . ) In some contexts a lease has been held to
present the "aspect" of a conveyance (Samuels v. Ottinger ( 1915)
169 C. 209 , 211, 146 P. 638 . ) to illustrate its dual character
as both an interest in real property and a contract . But in the
traditional sense a leasehold is not title, and the clear intent
of § 37351 is to distinguish between a lease (an agreement which
gives rise to the relationship of landlord and tenant) and a
conveyance of legal or equitable title.
In the matter at bar, we understand that the proposal is for the
city to convey the property to the Redevelopment Agency, and for
'`ate
Honorable Peter Green, Mayor
and Members of the City Council
April 3 , 1991
Page 6
the Redevelopment Agency to enter into a lease . While the
Redevelopment Agency is a body related to the city and shares
the same board of directors , it is nonetheless a separate legal
entity and a state agency deriving its powers directly from
state laws rather than from the state Constitution, as does the
city. Accordingly, if the section is applicable to a transfer
for the proposed uses, it is our opinion that the section would
preclude conveyance of title to the Redevelopment Agency.
However, the section would not preclude lease of the property
for proper purposes to the Redevelopment Agency or to an
operator to provide services which would be otherwise proper for
beach or park property.
As noted infra , it is our opinion that the proposed uses are
consistent with the legally authorized uses for public beach or
park, or as in this case lands held for the benefit of the
public . Accordingly, if there were appropriate use restrictions
on the conveyance, they should not trigger the remaining
procedures of § 37351 . This issue is obviated, however, by the
city entering into a lease rather than a conveyance to the
Redevelopment Agency of its interest in the site.
Article 2 of Chapter 5 of the Government Code, dealing with
public property, covers leases and has express provisions for
the power of the city to lease property owned or held or
controlled by it for terms not to exceed 55 years, or up to 99
years under certain conditions, and the section expressly gives
charter cities significantly greater powers than general law
cities in this regard. Section 37385 expressly gives the city
the power to lease tide and submerged lands as well as uplands
abutting upon them as the legislative body deems necessary for
the proper development and use of its water front and harbor
facilities , for not to exceed 66 years . Cities also have the
power to lease tidelands and uplands for parks , recreational,
residential , or educational purposes . Thus , cities have broad
powers to lease tidelands and uplands abutting tidelands . It is
obvious that throughout the state there are leases of
restaurants , warehouses , and other facilities along waterways
and beaches , and we assume that it is this authority that
supports such instruments .
It is our suggestion that the city not purport to convey in fee
its interest in the subject property, but that it may enter into
leases without triggering the four-fifths vote and findings
required by § 37351 .
Honorable Peter Green, Mayor
and Members of the City Council
April 3 , 1991
Page 7
3 . Question : Would a four-fifths vote be required on whether
the land is not suitable for use as a park or
beach.
Answer : No, unless a proposed use is inconsistent with
public purposes .
We need not reach this issue, since we have held that a lease is
not a sale or conveyance for purposes of S 37351 . Assuming,
arguendo, that it would trigger the section, it should be noted
that the finding of "suitability" required by the code leaves
considerable latitude in the legislative body to determine
whether property is appropriate or necessary for use as a park
or beach. "Suitable" means appropriate from the viewpoint of
propriety, convenience, or fitness . (Webster ' s Unabridged
Dictionary. ) A legislative body has great latitude in making
such determinations . Therefore, the City Council upon a review
of the plan could determine by a four-fifths vote that for a
variety of reasons the property is not suitable for use as a
public beach or park, based on the availability of other
parkland, the fact that the use is consistent with park
purposes , or a determination that the proposed uses are needed
to serve adjoining beaches or parklands .
Additionally, the Council may well determine that the proposed
uses on the property are consistent with beach or park use . If
so, then the language of S 37351 would appear to be inapplicable
to the project , since as noted the obvious intent of the section
is to preclude conveyances of land for some purpose other than
use as a beach or park. Throughout the state, and indeed
throughout the country, parks contain .various amenities that are
commercial in nature, such as restaurants , roller coasters ,
museums , and other uses . The Council may well find that the
project as proposed and approved will conform to park purposes
in providing facilities for beach-goers , public access to the
tidelands for pedestrian traffic, and parking of vehicles for
persons who wish to use these amenities and enjoy the visual
access to the ocean or walk to the water . So if the uses are
consistent with park purposes , the four-fifths vote requirement
of § 37351 would not be triggered in any case .
CONCLUSION:
Section 37351 does not apply to a lease of the Pierside
property, so long as the lease is for uses of the site which. are
consistent with the public interest in the property.
.4
Honorable Peter Green, Mayor
and Members of the City Council
April 3 , 1991
Page 8
It should also be noted that property which is uplands abutting
upon tidelands is limited to a lease term of 66 years . We think
this land arguably does abut tidelands and that any lease should
be so limited . Also, the transaction should be structured so
that the city leases its. interest to either the Redevelopment
Agency or an operator, and does not purport to convey its
interest .
je'-4�
Gail Hutton
City Attorney
GH:RCS: sg
cc : Michael T. Uberuaga , City Administrator
Mike Adams , Director of Community Development
Ron Hagan, Director of Community Services
Barbara Kaiser, Director of Economic Development
Tom Clark, Esq.
Jonathan Chodos
CITY OF HUNTINGTON BEACH
MAYORS MEMO
HUNTINGTON BEACH
To
Mike Uberuaga, City Administrator From Peter Green, Mayor
PIERSIDE PROPERTY VOTE April 5, 1991
Subject REQUIRED FOR A LEASE Date
I have read, albeit without a trained legal mind, the April 3, 1991, opinion of the City
Attorney, concerning the number of votes necessary for a transfer of Pierside property.
If the Council follows this opinion and votes to transfer or lease the property, undoubtedly
there will be challenges and, of course, there will be a costly special election because of
Proposition C.
I would like to request, before we start down this path, that another legal opinion by an
independent law firm that specializes in coastal redevelopment issues be provided to the
Council. My request is not unusual, and is provided for in the City Charter (Section 304 b)
where it states: "The City Council shall have the control of all legal business and
proceedings and all property of the legal department, and may employ other attorneys to
take charge of or may contract for any prosecution, litigation, or other legal matter or
business."
Both as Mayor and as Chairman of the Redevelopment Agency, I would feel more
comfortable about this issue if another legal opinion could buttress that of the City
Attorney.
PB:paj
xc: City Council Members
iEQUEST FOR REDEVELOPMENT AGENCY ACTION
RH 90-11
~ February 20, 1990
Date
:,ijj,u!t Wd (W Huioreible diainion and Redevelopment Agency Me nbers
Submitted by: Paul E. Cook, Executive Director
Prepared by: Keith B. Bohr, Redevelopment Specialist5�
subject: APPf2Y1AL OF CCNKEPML CIEVELOPMERr PLM FM =Z= RFS UUff A?M
Consistent with Council Policy? ( } Yes ( ] New Policy or Exception
Statement of Issue, Recommendation, Anglysis, Funding Source, Alternative Actions, Attachments:
SI ,NT OF I;SUE:
On January 17, 1989, the Agency directed staff to prepare an aip"ed Pjerside
Village plan to eliminate the specialty/retail uses while retainir)g the
restaurant uses (staff report attached) . Additionally, staff was authorized
to negotiate with its operators for the rehabilitation of Maxwell's Restaurant.
ON:
Approve the conceptual plan for develof_-rent of the "Pierside Restaurants"
,,Aiich includes:
The development of two new restaurant pads - (25,000 sq. ft. ) ;
Aceoriwodations for the relocation of the existing Maxwell's
Restaurant - (1.5,000 sq. ft. ) ;
The development of a parlci g structure, includiig surface ar,d
subsurface parking for both beachgoers and restaurant patrons;
The development of beach-related concessions, irr-luding
approximately 6,000 sq. ft, of casual dining space; and
Authorize staff and the developer of Pierside to negotiate for the
relocation and integration of Maxwell's into the Pierside plan.
ANXLYSIS:
On September 18, 1988, the City Council adopted a a "Pier Plaza" concept that
.ails for the development of a 2.1 acre "Pier Plaza" to be located between the
.lase of the Pier and Pacific Coast Highway. Approximately one-half of
Maxwell's Restaurant as it exists today lies within the adopted 2.1 acre
footprint of this plan. As a result, the negotiations for the rehabilitation
REQUEST FOR CITY COUNCIL ACTION
March 18 , 1991
Date
abmitted to: Honorable Mayor and City Council Members
Submitted by: Michael T . Uberuaga , City Administrator
Prepared by: Michael Adams , Director of Community Development
Subject: APPEAL - CONDITIONAL USE PERMIT NO. 90-17, COASTAL
DEVELOPMENT PERMIT NO. 90-18, SUPPLEMENTAL ENVIRONMENTAL
IMPACT REPORT NO. 90-2, GENERAL PLAN CONFORMANCE NO. 90-8
(PIERSIDE RESTAURANTS)
Consistent with Council Policy? [Vf Yes [ ] New Policy or Exception R,
Statement of Issue, Recommendation, Analysis, Funding Source, Alternative Actions, Attachments:
STATEMENT OF ISSUE:
Transmitted for your consideration is an appeal submitted by
Councilwoman Winchell , of the Pierside Restaurants project . The
project as approved by the Planning Commission consists of 48 , 500
sq . ft . of commercial development , including up to five new
restaurants and beach related concessions , with project related
parking and beach user parking . The Redevelopment Agency is the
co-applicant for the project .
Subsequent to the appeal , the applicant developed a project
alternative which addresses some of the concerns raised at Planning
Commission . This report will address the points of the appeal
submitted by Councilwoman Winchell for the original project , and-
discuss the applicant ' s revised plan as an alternate action .
RECOMMENDATION:
Planning Commission Recommendation :
Motion to , "Adopt; and certify as adequate Final Environmental Impact
Report No . 90-2 by adopting City Council Resolution No . G .. (c 0 with
Mitigation Measures , Statement of Overriding Considerations , and
Findings and Facts in Support of Findings ; Approve Coastal
Development Permit No . 90-18 , Conditional Use Permit No . 90-17 ,
General Plan Conformance No . 90-8 with findings and conditions of
approval as outlined in Attachment 1 to the report dated
March 18 , 1991 . "
Iha i,�
1i 313
03�13J3>:
P10 5/85
TENTATIVE ACTION PLAN A
TO IMPLEMENT PIERSIDE RESTAURANTS
APRIL 15, 1991 City Council/Redevelopment Agency Meeting
Closed Session - Agency gives staff direction on proposed
revisions to proposed Lease/Development Agreement
Council/Agency considers directing staff to proceed with
implementation of Tentative Action Plan
Council/Agency considers directing staff to obtain an
additional legal opinion regarding the determination of
whether a lease of the Pierside site would be considered
a conveyance of, and therefore require a, 4/5 vote for
approval
MAY 6 City Council/Redevelopment Agency Meeting
Council considers the reallocation of Certificate of
Participation funds from the proposed North of the Pier
Parking Structure to the Pierside Restaurants project
Council/Agency considers authorizing staff to prepare a
lease between the City and Agency for the Pierside site
MAY 7 - 10 Coastal Commission Hearing on Appeal of Pierside
Coastal Development Permit No. 90-18
JULY 1 Council/Agency considers impacts, if any, of Coastal
Commission's action as it may relate to economics of
project
TENTATIVE ACTION PLAN A (continued)
TO IMPLEMENT PIERSIDE RESTAURANTS
JULY 15 Council/Agency considers approval of Lease between
City and Agency of Pierside site, approval of sublease/
Development Agreement between Agency and Stanley
Bloom
JULY 22 Special City Council Meeting
Council considers approval of Resolution, calling for a
Special Election to be held November 5, 1991
(approximate cost $80,000-$95,000)
AUGUST 2 Deadline for Council's direct arguments
AUGUST 12 Deadline for any rebuttal arguments
NOVEMBER 5 Special Election
NOVEMBER 6 Developer proceeds with the preparation of working
drawings (120-180 days)
MAY 6, 1992 Submit working drawings to Plan Check (30 days)
TENTATIVE ACTION PLAN A (continued)
TO IMPLEMENT PIERSIDE RESTAURANTS
JUNE 6 Pull building permits/commence construction
Construction timeframe 12-18 months
JUNE, 1993 — Complete construction
JANUARY, 1994
8846r
TENTATIVE ACTION PLAN B
TO IMPLEMENT PIERSIDE RESTAURANTS
APRIL 15, 1991 City Council/Redevelopment Agency Meeting
Closed Session — Agency gives staff direction on proposed
revisions to proposed Lease/Development Agreement
Council/Agency considers directing staff to proceed with
implementation of Tentative Action Plan
Council/Agency considers directing staff to obtain an
additional legal opinion regarding the determination of
whether a lease of the Pierside site would be considered
a conveyance, and therefore, requires a 4/5 vote for
approval
APRIL 16 Advertise Public Hearing on amendment to Pierside
entitlements
APRIL 29 City Council considers amendment to Pierside
entitlements
MAY 6 City Council/Redevelopment Agency Meeting
Council considers the reallocation of Certificate of
Participation funds from the proposed North of the Pier
Parking Structure to the Pierside Restaurants project
Council/Agency considers authorizing staff to prepare a
lease between the City and Agency for the Pierside site
TENTATIVE ACTION PLAN B (continued)
TO IMPLEMENT PIERSIDE RESTAURANTS
JUNE 11-14, 1991 Coastal Commission Hearing on Appeal of Pierside
Coastal Development Permit No. 90-18
JULY 1 Council/Agency considers impacts, if any, of Coastal
Commission's action as it may relate to economics of
project
JULY 15 Council/Agency considers approval of Lease between
City and Agency of Pierside site, approval of sublease/
Development Agreement between Agency and Stanley
Bloom
JULY 22 Special City Council Meeting
Council considers approval of Resolution, calling for a
Special Election to be held November 5, 1991
(approximate cost $80,000-$95,000)
AUGUST 2 Deadline for Council's direct arguments
AUGUST 12 Deadline for any rebuttal arguments
NOVEMBER 5 Special Election
TENTATIVE ACTION PLAN B (continued)
TO IMPLEMENT PIERSIDE RESTAURANTS
NOVEM 3ER 6 Developer proceeds with the preparation of working
drawings (120-180 days)
MAY 6, 1992 Submit working drawings to Plan Check (30 days)
JUNE 6 Pull building permits/commence construction;
Construction timeframe 12-18 months
JUNE, 1993 - Complete construction
JANUARY, 1994
TENTATIVE ACTION PLAN C
TO IMPLEMENT PIERSIDE RESTAURANTS
APRIL 15, 1991 City Council/Redevelopment Agency Meeting
Closed Session - Agency gives staff direction on proposed
revisions to proposed Lease/Development Agreement
Council/Agency considers directing staff to proceed with
implementation of Tentative Action Plan
Council/Agency considers directing staff to obtain an
additional legal opinion regarding the determination of
whether a lease of the Pierside site would be considered
a conveyance, and therefore, requires a 4/5 vote for
approval
APRIL 16 Advertise Public Hearing on amendment to Pierside
entitlements
APRIL 29 City Council considers amendment to Pierside
entitlements
MAY 6 City Council/Redevelopment Agency Meeting
Council considers the reallocation of Certificate of
Participation funds from the proposed North of the Pier
Parking Structure to the Pierside Restaurants project
Council/Agency considers authorizing staff to prepare a
lease between the City and Agency for the Pierside site
TENTATIVE ACTION PLAN C (continued)
TO IMPLEMENT PIERSIDE RESTAURANTS
JUNE 11-14, 1991 Coastal Commission Hearing on Appeal of Pierside
Coastal Development Permit No. 90-18
JULY 1 Council/Agency considers impacts, if any, of Coastal
Commission's action as it may relate to economics of
project
JULY 15 Council/Agency considers approval of Lease between
City and Agency of Pierside site, approval of sublease/
Development Agreement between Agency and Stanley
Bloom
FEBRUARY 24, 1992 Special City Council Meeting
Council considers approval of a Resolution calling for a
consolidation of elections with the County to be held
June 2, 1992 (approximate cost $40,000-$50,000)
MARCH 5 Deadline for Council's direct arguments
MARCH 15 Deadline for any rebuttal arguments
JUNE 2 Special Election on Pierside Measure
TENTATIVE ACTION PLAN C (continued)
TO IMPLEMENT PIERSIDE RESTAURANTS
JANUARY 3, 1993 Submit working drawings to Building Division for
Plan Check (30 days)
FEBRUARY 3 Pull Building Permits/commence construction
Construction timeframe (12-18 months)
FEBRUARY - Complete construction
AUGUST, 1994
J.A CITY OF HUNTINGTON BEACH 30, 30
INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH
CONNIE BROCKWAY From GAIL HUTTON
To CITY CLERK CITY ATTORNEY
Subject RLS# 90-179 Date MARCH 5, 1990
NOTICES OF ACTION ON COASTAL
DEVELOPMENT PERMITS
SUMMARY OF FACTS:
The City Clerk' s office has been sending notices of City
Council ' s actions on coastal development permits which state that
the period for appeal begins when the California Coastal Commission .
("Commission") receives the city' s notice of action and continues
for ten working days thereafter. That same notice begins with the
language, "pursuant to Public Resources Code '§30603" ; the notice
then goes on to recite other requirements of an applicant for his or
her appeal to be heard by the Coastal Commission.
QUESTION PRESENTED:
Is the notice of action and appeal currently being sent from
the City Clerk' s office legally correct?
ANSWER:
The notice currently being used by the Clerk' s office is
correct as to the time of the appeal period. Insofar as the balance
of the notice is concerned, it is ambiguous and partially correct .
The manner in which the notice paraphrases the law could generate
confusion and should probably not be used in its present form.
ANALYSIS:
Title 14, §13110 and 13111, of the California Administrative
Code sets forth the Commission procedures for appeal of local
actions . It reads in relevant part,
"Section 13110 . Commission Procedures upon
Receipt of Notice of Final Local Action. . . . The
ten working day appeal period shall be established
from the date of receipt of the notice of the
final local government action. "
The appeal must be received in the Commission' s
designated district office on or before the loth working day
after . receipt of the notice of local action from the city.
�. ,
CONNIE BROCKWAY
MARCH 5, 1990
PAGE TWO
Huntington Beach Ordinance Code §989 . 5 . 5 (C) relates to
actions appealable to the Coastal Commission after exhaustion of
city remedies . It provides :
(C) "Actions Appealable to the Coastal Commission
After Exhaustion of City Appeals . An action by
the City Council regarding a CDP application for
any appealable development may be appealed to the
Coastal Commission within ten (10) working days
from the date of the Council ' s action by the
applicant, an aggrieved person, or any two (2)
members of the Coastal Commission, provided such
appeal is filed in accordance with the adopted
regulations of the Coastal Commission. "
Obviously the Huntington Beach Ordinance Code is inconsistent
with state law in so far as the time of the appeal period is
concerned. This makes §989 . 5 . 5(C) internally inconsistent because
' it provides that an appeal filed pursuant to the ordinance code must
also be filed in accordance with the state regulations, which cannot
be done. In this situation, the state law must control . This is
primarily because Huntington Beach has not been given authority by
the State of California to promulgate procedural regulations which
are binding on the Coastal Commission.
The City Clerk' s notice of action has also been viewed by the
legal department of the California Coastal Commission. Due to the
fact that the notice reflects the extended appeal period provided by
state law, rather than the shorter period under our ordinance code,
the mailing has at least provided notice of the correct appeal
period.
The reference in the notice to Public Resource Code §30603 is
not correct because that section does not relate to the subject
matter of the notice (the time frame, format, and mailing of appeals
to the Commission. ) Also, the notice advises applicants not to
begin construction prior to the time the Commission notifies them as
to whether or not an appeal was filed and further states that an
application becomes void one year after final approval, unless
actual construction has begun.
Thus, the ambiguities generate confusion by utilizing this
abbreviated version of the code. To illustrate, it is not an
application, but a permit, to which the one year pertains and it
relates to the expiration of the permit . Section 989 . 5 . 7 reads :
"Expiration of CDP. A CDP shall expire on the
latest expiration date applicable to any other
permit or approval required for the project,
including any extension granted for other permits
or approvals . Should the project require no city
permits or approvals other than a CDP, the CDP
v"
CONNIE BROCKWAY
MARCH 5, 1990
PAGE THREE
shall expire one (1) year from its date of
approval if substantial work on the project has
not been commenced during that time or an
extension has not been granted by the approving
authority. "
As is evident from a reading of this section a permit may
expire one year from the date of approval, but there are conditions
under which this might not be the case. Unlike the City Clerk' s
notice provides, an application does not become null or void one
year after the application date at all. Rather, it is deemed
approved by operation of law:
H.B.O.C. §989 . 5 .4(L) Failure to Act . If a CDP
application has not been approved, conditionally
approved, or disapproved by the approving
authority within one (1) year after the date the
CDP application was accepted as complete, or
within the time the CDP application was extended,
the CDP application shall be deemed approved. . . . "
CONCLUSION:
Notice provisions relating to rules of the Coastal Commission
should be in accordance with the provisions of Title 14 of the
California Administrative Code. Conflicts in this area should be
resolved in favor of the Coastal Commission regulations or state
law, not our local ordinance.
We will be pleased to draft the appropriate notice.
GAIL HUTTON
CITY ATTORNEY
e0000�
(
CITY OF HUNTINGTON BEACH
White City Attorney
;.� REQUEST FOR LEGAL SERVICES Canary city Attorney
• Pink City Attorney
Goldenrod Department
HUNTINGTON BEACH a
Date Request Made By Department
April 10 , 199 Connie Brockway City Clerk
INSTRUCTIONS: File request in the City Attorney's Office as soon as possible.Print or type facts necessary for City Attorney.Out-
line briefly reasons for the request.Attach all information and exhibits pertinent to the subject.
Type of Legal Service Requested:
( ] Ordinance [ ] Insurance M Other
[ ] Resolution [ ] Bonds
I ] Contract/Agreement ( J Opinion
Is form for preparation of Contract attached? [ ] yes [ ] no
All Exhibits must be attached or this request will be returned. [x ] Exhibits attached
If for Council Action, If not for Council action,desired completion date Signature:
Agenda deadline [� � �,�(,� � ��
Council meeting , J / 3 c) G
I have attached recent letters sent out following recent public hearings. Appropriate
form letters are needed to send to applicants who have been denied Coastal Development
Permits and Conditional Use Permits.
Enclosed are the codes covering CUP & CDP's.
On a denial the second paragraph of the Coastal Development notification letter does not '
seem applicable.
Please provide this office with the form letters that should legally be sent.
7u
., CITY ATTORNEY' S OFFICE USE ONLY:
This• Request for Legal Services has been assigned to SARAH LAZARUS/ART FOLG-R
on 4/11/90 , 'for handling. His or her secretary Karen
can be reached at 8803
The Control Number assigned to this request is: RLS 90-273
please reference this number when making any inquiries.
Date Completed:
'a
•
CITY OF HUNTINGTON BEACH r White City Attorney
REQUEST FOR LEGAL SERVICES Canary city Attorney
Pink City Attorney
Goldenrod Department
HUNTINGTON BEACH
Date Request Made ft Department
April 10, 199 Connie Brockway City Clerk
INSTRUCTIONS: File request in the City Attorney's Office as soon as possible. Print or type facts necessary for City Attorney.Out-
line briefly reasons for the request.Attach all information and exhibits pertinent to the subject.
Type of Legal Service Requested:
[ ] Ordinance [ ] Insurance RA Other
[ ] Resolution [ ] Bonds
[ ] Contract/Agreement [ 1 Opinion
Is form for preparation of Contract attached? [ ] yes [ ]no
All Exhibits must be attached or this request will be returned. [x ] Exhibits attached
If for Council Action, _. If not for Council action,desired completion date Signature:
Agenda deadline �} a
s"
Council meeting
_f 9wr
I have attached recent letters sent out following recent public hearings. Appropriate
form letters are needed to send to applicants who have been denied Coastal Development
Permits and Conditional Use Permits.
Enclosed are the codes covering CUP & CDP's.
On a denial the second paragraph of the Coastal Development notification letter does not
s1@n appTicable.
Please provide this office with the form letters that should legally be sent.
CITY ATTORNEY' S OFFICE USE ONLY:
This Request for Legal Services has been assigned to ,
on for handling. His or her secretary
can be reached at
The Control Number assigned to this request is:
please reference this number when making any inquiries.
Date Completed:
J� CITY OF HUNTINGTON BEACH
White City Attorney
REQUEST FOR LEGAL SERVICES canary CRY Attorney
Pink City Attorney
Goldenrod Department
HUNTINGTON BEACH
Date Request Made By Department
A ri 1 10', 199 Connie Brockway City Clerk
INSTRUCTIONS: File request in the City Attorney's Office as soon as possible. Print or type facts necessary for City Attorney. Out-
line briefly reasons for the request. Attach all information and exhibits pertinent to the subject.
Type of Legal Service Requested:
( ] Ordinance [ ] Insurance k A Other
( ] Resolution ( ] Bonds
[ ] Contract/Agreement [ I Opinion
Is form for preparation of Contract attached? E ] yes E ] no
All Exhibits must be attached or this request will be returned. [x_] Exhibits attached
If for Council Action, If not for Council action,desired completion date Signature:
Agenda deadline
Council meeting
I have attached recent letters sent out following recent public hearings. Appropriate
form letters are needed to send to applicants who have been denied Coastal Development
Permits and Conditional Use Permits.
Enclosed are the codes covering CUP & CDP's.
On a denial the second paragraph of the Coastal Development notification letter does not
seem applicable.
Please provide this office with` the form letters that should legally be sent.
CITY ATTORNEY ' S OFFICE USE ONLY:
This Request for Legal Services has been assigned to
on , for handling. His or her secretary
can be reached at
The Control Number assigned to this request is :
please reference this number when making any inquiries.
Date Completed:
Y
t
S
t
REQUEST FOR CITY COUNCIL ACTION
Submitted by
Cit Attorney Department Legal
Cate Prepared 16 February 1979 Backup Material Attached 7 Yes No
Subject Resolution Establishing Time Limit for Seeking Review of Admini-
strative Determinations
City Administrator's Comments
Approve as recommended.
�p u%� 3 7.�3
Statement of Issue, Recommendation, Analysis, Funding Source, Alternative Actions: 0�
STATEMENT Or ISSUE•
Attached is a copy of section 1094 . 6 , California Code of Civil procedure .
This section establishes a time limitation for seeking review of administr&-
tive determinations such as personnel aC;,ions , denial or revoca~ion � ' per-
mits and 'licenses , or denial of applications for permits and licenses .
Section 1094 . 6 is applicable only where specifically adopted by the local
governing ag_.ency by ordinance or resolution.
If adopted , section 1094 . 6 would reduce the number of nuisance lawsuits thL
ity is presently experiencing, by shortening the time period in which they
may be brought .
RECOMMENDATION :
Adopt resolution adopting California Code of C:ivii procedure section 1094 . r�' .
FUNDING SOURrC"E:
`:n r The-re will r o cost-, t -1-e `•- it There will -, time
bone r .�uir�s . le_ w �� n c�.�t o .,,, _t,, . _ � r� tii 1 b. a t ri
and cost savint_ ; f the resolution is ado.nted .
A"TERNATIVE ACTION :
None . The present time for cringing these appeals As three or four years ,
dependent upon type . Taking no action will result in leaving appeal matters
for these period_. .
WSA :ahb
Attachments
- y
Plo 3,78
RESOLUTION NO. 4723
A RESOLUTIOI: OF THE CITY COUIJCIL OF THE CITY OF
HUNTINGTON BEACH ADOPTING SECTION 1094 . 6 OF THE
CALIFORI\TIA CODE OF CIVIL PROCEDURE WHICH ESTAB-
LISHES A TIME LIMITATION FOR SEEKING REVIEW OF
ADMINISTRATIVE DETERMINATIONS
WHEREAS, the California Code of Civil Procedure Section
1094 . 6 provides that a time limitation of ninety ( 90) days may
be established for seeking ,judicial review of administrative
.determinations of a local agency, or any commission, board,
officer or agent thereof; and
Section 1094 . 6 (g) provides for applicability of the entire
section only where specifically adopted by the local agency' s
governing board through ordinance, or resolution; and
The city continually experiences ?,ntlimely lawsuits which are
difficult and costly to defend and i•:hich are eased on stale and
groundless claims ; and
It appearirig to the Council that adoption of Section 1094 . 6
of the California Code of Civil Procedure woul-d result in a sub-
stantial cost saving to the city ,
NOW, THEREFORE, BE IT RESOLVED by tine City Council of the
City of Huntington Beach that it does hereby adopt Section 1094 . 6
of the California Code of Civil Procedure , estatlishing for „his
city a limitation of ninety ( 90 ) days ir: which to seek udicial
review of an administrative determination rendered by this
Council, or any of the city ' s boards , cDm:missions , officers or
azeni,s .
PASSED AND ADO:TED by the Cit,.' Council of the City of
Huntington Beach at a regular meeting thereof field t.,n the 5tfi
day of March , 1979.
ATTEST:
_1 it
E or
City Clerk
WSA:ahb 1 .
2/16/79
.r
REVIEWED AND APPROVED: lNITIATED' AND APPROVED AS
TO FORM.
City Administrator j� City Attorney e
2 .
s*rArE OF CALIFORNIA )
COUNTY OF ORANGE
CITY OF HUNTINGTON BEACH )
1
I, ALICIA M. WENTWORTH, the duly elected, qualified City
Clerk of the City of Huntington Beach, and ex-officio Clerk of the
City Council of said City, do hereby certify that the whole number of
members of the City Council of the City of Huntington Beach is sever.;
that the foregoing resolution was passed and adopted by the affirmative
vote of more than a majority of all the members of said City Council
at a regular meeting thereof held on the 5th day
of March 1979 by the following vote:
AYES: Councilmen:
Yoder, MacAllister, Bailey, Mandic Siebert
.NOES: Councilmen:
Thomas
ABSENT: Councilmen:
Pattinson
City Clerk and ex-officio Clerk
of the City Council of the City
of Huntington Beach, California
I
CITY OF HUNTINGTON BEACH
^ ` 2000 MAIN STREET CALIFORNIA 92648
OFFICE OF THE CITY CLERK
Date
Inside Adress
Gentlemen:
The City Council of the City of Huntington each at its regular
meeting held denied or denied your
appeal to �—
This is a final decision. You are hereby notified that pursuant to pro-
visions of Section 1094.6 of the Code of Civil Procedure of the State of
California you have ninety days from DATE OF THIS LETTER to apply
to the courts for judicial review.
If you have any questions regarding this matter, please contact our office
- 536-5227.
Alicia M. Wentworth
City Clerk
AMW:cb
enc.
CC: City Attorney
Development Services Director
(Telephone:714-536-5227)
§ 1094.5 SPECIAL PROCEEDINGS Part 3
Noto 378
n,:nuled for n,•iv Irbil de no%', 1'-esend i. ttiinc,l couu,i.:.siow•r ling uo jurimdiclinn
t'ioirornin Uiii-i iploynieut I its. .\mien Is lid, nn,i ilitl not detertnluo nwritm, \\'enter:: Air
(197(i) 127 l'nl.np(r, 5.10, 57 l'..\.ad 21). I,Incm lac. v. Sobieski (11181) 13 Cal.11ptr.
TOM eourt'm Jiulgini•ut tivii)hig; writ of 71(1, 1111 ('.:\._'d 31)0.
ninnthtre to compel director of ng(ricullnro lead that letter discharging; menior lyp-
to met nmide his devimion revokiiigt petltinn- isi clerk in office, of couml clerk itimed
er'u license on aircraft p1hil in bominemm of Ilea she .rots guilty of misconduct in re-
pest nutlrol wnm revermed ❑ id enxn re utoving public reeanlm frntu tho files and
ninnfled to Irlul court wills direetioum to niii(Onting and mecreling them on vnrioux
roniand ruse to director fur purpose of dutem, wherenm in henring beforo county
reconmiderhig the penalty previously ini. civil service conunimmlon evidence was in-
posed, where it was found dint some of traduced only no to whnt took place on
thu charges ng(ninmt. petitioner worn not one of the ,Inter, did not require the dim-
mnpported by cvidence. Wingfield v. I rlet court of appeal 'on nl.pcnl frnni judg-
Director of Agriculture (1072) 1W Cal. nient awurdiug menior tylii>t clerk writ of
itptr.019, 20 C.A.34 200. niandnte, nftee revering tho Judgment of
Procoeding; for revlcw of deninl by coin- the superior enurt, to reninnd the matter
mixsloner of rorpnrntlonm of permit to to the c•onunission for reeonsideration,
chnnge voting; rig;htx of Klinreholilerx `vlicre. there W:IH n similarity of facts sur-
wuuld he reninnde.d to xuperiar court for rounding reinovid of the docunicnts on all
determination whother there. \ens suhmlun.' of 1ho tinier. Prim v. Lem Angeles Coun-
tiul evidence to support couuuissioner's ty Civil �•rvic l!ominisaiou (195l) 2a8
findings, 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 Marty defined; or-
dinance or resolution
(a) Judicial review of any decision of a local i genc other than
school district, as the term local agency is defined in Section 54951 of.
the Ggvernment Code, oi- of any commission, board, officer or agent
th,.-r'eof, may be had pursuant to Section 1094.5 of this code only if
the petition for writ;of mandate pursuant to such section is filed
`,:,!thin 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 decisK� 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 r(•cord of the pro(,cedi.ngs shall 1)(• prepared by
hic Itu-;tl agency or ils collimis!cinn, bo:ird, officer, or ngenl which
tn;lde the decision and shrill he delivered to the petitioner within 90
tiays ;ifLer he has filed a writteil reOucsl therefor. The Ideal agency
may recover from the petitioner its actual costs for transcribing or
otherwise preparing the record. Such record shall include the tran-
Script of thu proceedings, all pleadings, all notices and orders, any
Proposed decision by a hearing officer, the final decision, all admitted
674
Title 1 WRIT 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.'petitionei- files a mquest for tho record as Specified in
sIlllrlivisinn .(c) within 10 days after the date the decision becomes fi-
nal its pi-mlided in subdivision (b); (lic time within which a peLitioli
Pursuant to Section 109-1.5 may be 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
pi o ;ions 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
Sce tt'est'w Califoruin Code Formw, Civil Procedure.
Library References
Adntinit<trntive L(tw turd Provedury C.J.S. Public. Administrative Bodies and
0- '3. Procedure
Notes of Decisions
In general I Umt public entployotent rc)fitlont( bunnl
Exhaustlon of administrative remedles 2 luot rtrinsivit juriwdietlon to detenuine
whetbrr the unfnlr practice chnrgew were
justified; tuul, in view of tettchera' failure
to eshfinst Ihcir ndtninistrative reutc(lic4
1. In general under the Itod 6t Act, trial court erred in
Nrhool bnurd'w 'ltnibii- mil freezing; of grnnling writ of nounlute to compel xmmr-
I,•nehcrs' wnlfirivs ttfler heg;inninv of new iutenderit of district tmtl other-4 to rttige
scrhonl veer, while rnntrnet nvg;otintion, wnitu•i-•s of rertnio tencheru. Atnndor Vul-
wcri. pcuding, urguuhl'• wtiw fill uufttir It.v tier'uttdnry b:duentors Agq'n %. Newlin
practice iu t•lulutiun of the ltoddu Art NO (1970) IG1 Cul.Itptr. 724, M (;.A.Jd 251.
675
i
CITY OF HUNTINGTON BEACH
2000 MAIN STREET CALIFORNIA 92648
OFFICE OF THE CITY CLERK
April 6, 1990
Dr. James Schell
16872 Baruna Lane
Huntington Beach, CA 92649
Dear Dr. Schell:
The City Council of the City of Huntington Beach at its regular meeting held
April 2, 1990, denied with findings, your application relative to Conditional Use
Permit No. 89-25, Coastal Development Permit No. 90-1.
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 April 6, 1990, to apply to the courts for judicial review
relative to the Conditional Use Permit.
Sincerely yours,
Connie Brockway
City Clerk
CB:me
CC: City Attorney
Community Development Director
City Administrator
Robert Chick
1051 K (Telephone:714-536-5227)
r-
;, CITY OF HUNTINGTON BEACH
2000 MAIN STREET CALIFORNIA 92648
OFFICE OF THE CITY CLERK
NOTICE OF ACTION
COASTAL DEVELOPMENT PERMIT NO. 90-1
IN CONJUNCTION WITH CONDITIONAL USE PERMIT NO. 89-25
APPEALABLE DEVELOPMENT
APPLICANT: Dr . James Schell
16872 Baruna Lane
Huntington Beach, CA 92649
REQUEST: To permit the remodel and addition to an
existing two story single family residence.
The addition includes a 2 , 000 square foot
third story.
LOCATION: 16872 Baruna Lane (Davenport Island -
� Huntington Harbour)
Your application was acted upon by the Huntington Beach
City Council on April 2 , 1990 and your request was :
Approved
Conditionally approved (see attached)
X Denied
Withdrawn
Under the provisions of the Huntington Beach Ordinance
Code, the action taken by the City Council is final .
The City Council action on this Coastal Development is
appealable to the Coastal Commission pursuant to Public
Resources Code S. 30603 and California Administrative Code
S. 13319 , Title 14 .
10 5 7 K (Telephone:714-536.5227)
t • '
i
Notice of Action
Coastal Development Permit
Page Two
An appeal by an aggrieved person
must be filed in writing, and addressed to :
California Coastal Commission
245 W. Broadway, Suite 380
POB 1450
Long Beach, California 90801-1450
(213) 59..0-5071
The appeal period begins when the Commission receives this ,,.qq--
notice of action and continues for ten (10) working days lt0 0^(-,
DODO __
nc usion of" t
p
4,�. Applicants are advised not, to begin construction
prior to Y`2So),4' &-N CI aV\n OkOip-p-a-1 ON-\ -R -e (SS L" .
Provisi the Huntin ac Ordinanc ode are such
t an applicati ecomes n oid one yea
after t f ' approval, s actual co truction has
begu .
C
u-
Connie Brockway, CMC
City Clerk
1057K
I
CITY OF HUNTINGTON BEACH
2000 MAIN STREET CALIFORNIA 92648
OFFICE.OF THE CITY CLERK
April 6, 1990
Bill Ridgeway Design
5828 E. 2nd Street
Long Beach, CA 90803
Dear Sir:
The City Council of the City of Huntington Beach at its regular meeting held
April 2, 1990, denied with findings, your application relative to Conditional Use
Permit No. 89-57, Coastal Development Permit No. 89-32.
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 April 6, 1990, to apply to the courts for judicial review
relative to the Conditional Use Permit.
Sincerely yours,
/ 7
Connie Brockway
City Clerk
CB:me
CC: City Attorney
Community Development Director
City Administrator
John Briscoe
Huntington Harbour Property Owners Association
1051 K (Telephone:714-536-5227)
a
i
FOE
CITY OF HUNTINGTON BEACH
2000 MAIN STREET CALIFORNIA 92648
OFFICE OF THE CITY CLERK
NOTICE OF ACTION
COASTAL DEVELOPMENT PERMIT NO. 89-32
IN CONJUNCTION WITH CONDITIONAL USE PERMIT NO. 89-57
APPEALABLE DEVELOPMENT
APPLICANT: Bill Ridgeway Design
5828 E. 2nd Street
Long Beach, CA 90803
REQUEST: To permit the remodel and addition to an
existing single family dwelling including a
third story. The dwelling is proposed to
have 4 , 994 square feet of habitable area and
a 767 square foot garage.
LOCATION: 16391 Ardsley Circle - S/O Edinger Avenue,
W/O Saybrook Lane (Humboldt Island)
Your application was acted upon by the Huntington Beach
City Council on April 2, 1990 and your request was :
Approved
Conditionally approved (see attached)
X Denied
Withdrawn
Under the provisions of the Huntington Beach Ordinance
Code, the action taken by the City Council is final .
The City Council action on this Coastal Development is
appealable to the Coastal Commission pursuant to Public
Resources Code S. 30603 and California Administrative Code
S . 13319 , Title 14 .
10 5 7R (Telephone:714-536-5227)
l ,
Notice of Action
Coastal Development Permit
Page Two
Pursuant to PRC 5. 30603 , an appeal by an aggrieved person
must be filed in writing, and addressed to :
California Coastal Commission
245 W. Broadway, Suite 380
POB 1450
Long Beach, California 90801-1450
(213) 590-5071
The appeal period begins when the Commission receives this
notice of action and continues for ten (10) working days .
Applicants will be notified by the Coastal Commission as
to the date of the conclusion of the Commission' s review
period, and as to whether or not an appeal has been
filed. Applicants are advised not to begin construction
prior to that date.
Provisions of the Huntington Beach Ordinance Code are such
that an application becomes null and void one (1) year
after the final approval, unless actual construction has
begun.
Connie Brockway, CMC
City Clerk
1057K
z.
I "f
CITY OF HUNTINGTON BEACH
2000 MAIN STREET CALIFORNIA 92648
OFFICE OF THE CITY CLERK
April 6, 1990
Huntington Beach by the Sea
19913 Beach Blvd., #170
Huntington Beach, CA 92648
RE: Conditional Use Permit No. 89-58/Coastal Development Permit No. 89-33
Conditional Use Permit No. 89-59/Coastal Development Permit NO. 89-34
Following the public hearing on your project,- the City Council of the City of
Huntington Beach at the regular meeting held April 2, 1990, referred your projects
back to the Design Review Board and the Planning Commission.
If you have any questions, please call Mike Adams, Director of Development Services
at 536-5276.
Sincerely yours,
Connie Brockway
City Clerk
CB:me
CC: City Attorney
Community Development Director
Coastal Commission
1051 K (Telephone:714-536-5227)
CITY OF HUNTINGTON BEACH
2000 MAIN STREET CALIFORNIA 92648
OFFICE OF THE CITY CLERK
NOTICE OF ACTION
COASTAL DEVELOPMENT PERMIT NO. 89-33 a 89-34
APPEALABLE DEVELOPMENT
APPLICANT: Huntington Beach by the Sea
19913 Beach Blvd . , #170
Huntington Beach, CA 92648
REQUEST: Four unit condominium with special permits
for (1) upper story setback, (2) site
coverage, (3) ground floor private open
space and (4) minimum dimension of common
open space .
LOCATION: 1300 Pacific Coast Highway - 13th Street &
Pacific Coast Highway.
Your application was acted upon by the Huntington Beach
City Council on April 2 , 1990 and your request was :
Approved
Conditionally approved (see attached)
Denied
Withdrawn
X Referred back to the Design Review Board and
Planning Commission
Under the provisions of the Huntington Beach Ordinance
Code, the action taken by the City Council is final .
The City Council action on this Coastal Development is
appealable to the Coastal Commission pursuant to Public
Resources Code S. 30603 and California Administrative Code
S. 13319 , Title 14 .
10 5 7K (Telephone:714-536-5227)
k'-
is
f
i
Notice of Action
Coastal Development Permit
Page Two
Pursuant to PRC S. 30603 , an appeal by an aggrieved person
must be filed in writing, and addressed to :
California Coastal Commission
245 W. Broadway, Suite 380
POB 1450
Long Beach, California 90801-1450
(213) 590-5071
The appeal period begins when the Commission receives this
notice of action and continues for ten (10) working days .
Applicants will be notified by the Coastal Commission as
to the date of the conclusion of the Commission' s review
period, and as to whether or not an appeal has been
filed. Applicants are advised not to begin construction
prior to that date.
Provisions of the Huntington Beach Ordinance Code are such
that an application becomes null and void one (1) year
after the final approval, unless actual construction has
begun.
G- 7
Connie Brockway, CMC 1117
City Clerk
1057K
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Public he /W.O January
arings 4 11„1990..
r �
Follow up letters
Please check these letters to make sure the wording is correct on each one. -I have
highlighted.the section:in yellow that-I would like you particularly'to check as I am
not sure the wording= s,applicable on a Council action.
,. : If the wording needs:to be.changed, please.make corrections on these letter and
return tows right away..- The code'states that'a Notice of Action must be sent
within seven days. Please return.these to. me today.'
e 1
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from the desk of:
CONNIE BROCKWAY, CMC
CITY CLERK
(714) 536-5404
3/l/90
Gail,
This is a recent memo regarding a
memo you cc'd me on.
I would like responses,and the only
time something was resolved on a memo
that I had sent"you, where I didn't
need a written reply, was the:-_problem
on Ascon that Sarah Lazarus and I
verbally worked out.
Also, the "Butcher" agreement that
I made reference to in the attached
memo, is in escrow now. Was a public
hearing on this one not necessary be-
cause it was a sale where the city can
purchase back?
Ahu-0—
P.O. BOX 190
HUNTINGTON BEACH, CA 92648
-,-- from the desk of:
CONNIE BROCKWAY, CMC
CITY CLERK
(714) 536-5404
Gail. - I cc'd you on this because I cannot
request your office to prepare a
code amendment for the planning dept,
yet I believe that if a code amendment
is necessary that you should be aware
of it so a Councilman's appeal (or
anyone else's should not be considered
late) .
LOG # l / 7 -__
ASSIGNED T �L'
DATE
CITY OF -HUNTINGTON-'BEACH
INTER-DEPARTIVIENT COMMUNICATION
HUNnNCTON BEACH
To Sarah Lazarus From Arthur DeLaLoza
Deputy City Attorney Acting City Attorney
Subject Notices of Action, Date March 2, 1990
Coastal Development Permits
J•- `' Please prepare an. analysis for Gail Hutton regarding. the attached
;h., materials received :.from .the..City Clerk on the above subject.
x.
Thanks....
�i
ARTHUR .DELALOZA
Acting..'`City_Attorney..: ,
Connie Brockway, City Clerk
;4J.
CORRECTED COPY
. • � Sao =�=a
CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH
To Mike Adams From Connie Brockway
Community Development Director City Clerk
Subject NOTICE OF ACTION SENT AFTER, Date January 30, 1990
COUNCIL'S ACTION ON COASTAL
DEVELOPMENT PERMITS
1 . This office has been sending Notices of Action which gives the 10
working day appeal period to the Coastal Commission as starting the
date the Coastal Commission receives the City Clerk' s Notice of
Action. (See attachment #1 )
2. The HBOC states 10 working days from City Council ' s action. (See
attachment #2)
3. I believe the city code may be incorrect which is making our legal
notices incorrect. I will continue sending the Notice of Action
out with the time frame of the letter not the code unless I am
informed otherwise.
4. Also, while reading the city code in trying to figure this question
out I noticed the HBOC section re: a finding that is necessary to
be made when a Conditional Exception is part of a Coastal Development
Permit. This wording (See attachment #3) was not included in the
findings on the recent Huntington Harbour Bay and Racquet Club
appeal filed by Bannister/Silva which I understand is being appealed
to the Coastal Commission.
5. ' Another area the code may need changing is that on a recent .CUP-CDP
appeal from Planning Commission to City Council , the appellant was
allowed because of a technicality to file one day late (11 days) .
In reading the HBOC, it again states that an appeal may be filed with
Council to a Planning Commission decision within 10 working days, so
the appeal was actually timely and did not need a technicality to be
accepted. Perhaps the code could be changed to be more uniform unless
there was a legal reason requiring working days rather than calendar
days. (Attachment #4)
CB:bt
CC: Gail Hutton, City Attorney
Council/Administrator
Attachments
Notice of Action
Coastal Development Permit No .
Page Two
Pursuant to PRC S . 30603 , an appeal by an aggrieved person must be
filed in writing , and addressed to:
California Coastal Commission
245 W . Broadway , Suite 380
POB 1450
Long Beach , California 90801-1450
( 213) 590-5071
The appeal period begins when the Commission receives phis notice of
action and continues for ten ( 10) working days . Applicants will be
notified by the Coastal Commission as to the date of the conclusion of
the Commission ' s review period , and as to whether or not an appeal has
been filed . Applicants are advised not to begin construction prior to
that date .
Provisions of the Huntington Beach Ordinance Code are such that an
application becomes null and void one ( 1 ) year after the final
approval , unless actual construction has begun .
Connie Brockway
City Clerk
FOJJE
CITY OF HUNTINGTON BEACH
2000 MAIN STREET CALIFORNIA 92648
OFFICE OF THE CITY CLERK
NOTICE OF ACTION
COASTAL DEVELOPMENT PERMIT NO
APPEALABLE DEVELOPMENT
Applicant :
Request :
Location :
Date of Approval :
Your application was acted upon by the Huntington Beach City Council.
on and your request was :
Approved
Conditionally approved ( see attached )
Denied
Withdrawn
Under the provisions of the Huntington Beach Ordinance Code , the
action taken by the City Council is final .
Approval of this development is appealable to the Coastal.. Commission
pursuant to PRC S . 30603 . A denial may be appealed ( S . 13319 , Title 14 ,
California Administrative Code ). only if the City has approved a
development on the basis of local land use regulations but has denied
the issuance of a coastal development permit because it cannot make
the findings required by Section 13311 , Title 14 of the California
Administrative Code .
Attachment #1
(Telephone: 714-536-6227)
989 . 5 . 5--989 . 5 . 7
( iii ) the owner of the subject property or duly
authorized agent ( if different from the
appellant and/or applicant) ;
( iv) the Coastal Commission;
(v) any commission or board as provided in the
C-LCP;
( vi ) all persons who have submitted a written
request for notification of action on this
specific CDP application and who have
submitted self-addressed , stamped envelopes
or paid a reasonable fee to receive such
notice .
(3 ) Notire of City_ APPeal Action . On or before the
seventh ( 7th) calendar day following the date of
action on an appeal , the H . B . Director , or the Clerk
of the City Council ( as appropriate) shall forward , by
first class mail , a copy of the written decision to
the persons who were notified of the appeal .
(See subsection (B) (2) above . ) !
(C) Actions APPealable to the Coastal Commission After
Exhaustion of City Appeals . An action by the City Council
regarding a CDP application for any appealable development
may be appealed to the Coastal Commission within ten (10)
working days from the date of the Council ' s action by the
applicant , an aggrieved person, or any two (2 ) members of
the Coastal Commission, provided such appeal is filed in
accordance with the adopted regulations of the Coastal
Commission .
989 . 5 . 6 Application After Denial . Whenever a CDP request
under the provisions of this section has been denied and such
denial has become final , no new CDP application for the same or
similar request may be accepted within one ( 1) year of the
denial date, unless the H. B . Director finds that a sufficient
change in circumstances has occurred to warrant a new CDP
application .
989 . 5 . 7 Expi.r.a..t_ion _gf .QDP. A CDP shall expire on the latest
expiration date applicable to any other permit or approval
required for the project , including any extension granted for
other permits or approvals . Should the project require no city
permits or approvals other than a CDP, the CDP shall expire one
( 1) year from its date of approval if substantial work on the
11/87
989 . 5 . 4
(d) California Coasta_l__Ac_L. That the development
conforms with the public access and public
recreation policies of Chapter 3 of the California
Coastal Act ;
(e) Conditional Exception Applications . In addition
to the findings required for a Conditional
Exception by the Board of Zoning Adjustments
and/or the Planning Commission , the following
finding shall also be made : "Approval of the
Conditional exception will result in no
modification to the requirements of the C-LUP . "
(H) Pl bli-Q_ Hearing and Comment-* .
( 1) The approving authority specified in subsection (G) of
this section , shall hold a public hearing prior to any
action on a CDP application where any of the following
apply :
( a) The CDP application is for a non-appealable
development and the base district regulations
require the holding of a public hearing prior to
action or recommendation on other approvals
required for the project .
(b) The CDP application is for an appealable
development , as defined in Section 989 . 5 . 1 .
( 2 ) A public hearing on a CDP application may be held
concurrently with any other public hearing on the
development project held by the approving authority
specified in subsection (G) of this section .
(3 ) Any person may submit written comment on a CDP
application , or on a CDP appeal , at any time prior to
the close of the applicable public hearing . If no
public hearing is required , written comments may be
submitted prior to the action date specified in the
notice required by subsection (J) of this section .
Written comments shall be submitted to the H . B .
Director who shall forward them to the appropriate
person , board , commission , council or applicant .
11/87
.t
989 . 5 . 5
989 .5 . 5 Appeals . Development pursuant to an approved CDP
shall not commence until all applicable appeal periods expire
or-, if appealed , until all appeals , including the Coastal
Commission, have been exhausted . The action regarding any CDP
application may be appealed in compliance with the provisions
of the Huntington Beach Ordinance Code and with the following
additional provisions :
(A) Actions _ ARPoalable Directly to the Coastal Commission . An
action regarding a CDP application for any appealable
development may be appealed directly to the Coastal
Commission without exhausting the appeal procedures
specified by this section provided such appeal is filed in
accordance with the adopted regulations of the Coastal
Commission .
(B) Actions Appealable in Accordance with the Huntington Beach
Ordinance Code .
( 1) Filing-Procedure . An appeal shall be filed within ten
( 10) working days of the approving authority-' s action
by any aggrieved person with the Department of
Development Services on a form provided by the H . B .
Director , and shall be accompanied by a fee set by
resolution of the City Council and a statement of the
grounds for appeal . Said appeal fee shall be waived
in lieu of the reimbursement of that fee through the
instrument of Section 2231 of the Revenue and Taxation
Code (SB 90) claim or similar reimbursement process
established by the Coastal Commission .
(2) Noticg of Public Hearing .
( a) Contents of Notice . Notice shall contain the same
information as the original notice except that it
shall also give the appellant ' s name and state
that the hearing is an appeal .
(b) Provision of Notice . Notice shall be mailed, by
first class mail , at least ten '( 10) calendar days
before the public hearing on an appealed CDP
application to the following :
( i ) the appellant ;
( ii ) the applicant ( if different from the
appellant) ;
11/87
-ilk
CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH - -
HONORABLE MAYOR JOHN ERSKINE From GAIL HUTTON
To AND MEMBERS .OF CITY COUNCIL City Attorney
Opinion Re: Huntington Beach Date September 1., 1988
Subject City Charter Section 300 ,
"Two Consecutive Term Limitation
on City Council Election. "
FACTS:
Mayor John Erskine, the Mayor ' s Committee and Councilwoman. Ruth , .
Finley have recently inquired regarding interpretation of
referenced Hun.tih.gton Beach City Charter Section 300 .
QUESTION:
Does Huntington Beach City Charter Section 300 prohibit a. former
Councilperson who has served two consecutive (4 year) terms from
being elected to serve another term when there has been a hiatus .
of two years interrupting the occupancy of office .
ANSWER:
No. The limitation applies only: to consecutive terms. It . does .
not. limit nonconsecutive service:
ANALYSIS:
I . HUNTINGTON BEACH CITY CHARTER SECTION 300 PROVIDES IN
. PERTINENT PART AS FOLLOWS: _
"Section 300 . CITY COUNCIL, ATTORNEY, CLERK AND TREASURER..,-..-
TERMS . . . . .and no person shall be elected as a member of . the.:."
City Council for more than-'two consecutive terms and -no person ;
who has been a member for more than two years of -a _ term to
which some other person. was elected a member shall be elected
to the City Council more than one further consecutive term. " . -
(Emphasis added)
II . THE RULES OF STATUTORY CONSTRUCTION ARE APPLICABLE TO
THE -
HUNTINGTON BEACH CITY CHARTER
The general rules of statutory construction have been found to be,-
applicable to municipal charters. Diamond International Corp .
vs . BOAS 155 Cal .Rptr . 616 , 626; -58 Cal . Jur. 3d , "Statutes, "
§ 82 . These rules are therefore applicable to construction -of the
Huntington Beac4, City Charter . __
Mayor John Erskine and
Members of the City Council
Page 2
September 1, 1988
III . THE PLAIN MEANING OF HUNTINGTON BEACH CITY CHARTER 300
The primary rule. of statutory' construction is that statutory.
construction principals are ,only applicable where the language is
uncertain and ambiguous. Where the meaning of a statute is plain,
its language clear and unambiguous, and there is no uncertainty,
the courts will look no further to •ascertain the legislative
intent . 58 Cal . Jur.. 3d, "Statutes, " § 84 (emphasis . added)
Courts must follow the. -language used and give it its plain
meaning . Eureka 'vs . Diaz 89 C467 26 p-.961 . This is so,: "no matter•
what may be thought of the wisdom, expediency, or 'policy- of the
act . Eureka vs.'.,Diaz 89 C467 - . 26 p.961, Smith vs. Union -Oil -Co. ,
166C21 , 135 p-.966. a f 249 U.S. 337, 63L Ed. _.
The -plain meaning- ofCharter §300 - the 'limitation' "that no person
shall be elected:.-as a::member of the city council for more than two
consecutive' terms" is:;construed by analyzing the' phrase
"consecutive terms .." -
"Every word to have meaning,". In..'attempting , to_ scertain
legislative.. intent, ;ef-feet ;.should ,_be =giv.en;.;whenever possible;
to the statute- as"'a''-who- le-'and. to*::every...wor:dirig, clause thereof•.
leaving -.no .part of., the' provision._useless,-:or deprived; of
aw Ten.L f -Co`
24 . .. , Ca .Rpt _. P see(1979 ) : Ca
also CCP ;� `185"8;' Edgirigton v".San Diego:aourity :(1981") 118
Cal :App.3.d`39_ .:,-.45 ,- 173. Cal.Rptr..: 225: :(constr.uction .making some'-.. .
words surplusage:'to ,be . avoided) ;- Liptak- .v Diane=Apts . , -Inc.
(1980 ) 109,,;Cal•-:App.: d 762;' 770,. . 167 :Cal,-.Rpt.r::::':440 (pre'sumption- :r";-
that every.:word';fir phrase,. and provision in a atat,dt6. is
intended to. hav6.,,neaning ) ] . Whenever...:reasonable,.
interpretations: which- produce inter'na�l harmony, .avoid_
redundancy,'' and' accord significance:��to each 'word _and: phrase. .,
-are preferred [Pacific Legal:= Foundation v Uriemployment . Ins .` -
Appeals Bd. (-1981) 29 Cal .3d 101, .114 , 172 Cal .Rptr , 194 , 624
P2d 2441 . 13 Cal.- Forms of Pleading & Procedure "Statutes and -
Ordinances" 11, . 14, & 15
Applying the concept that - every. word is to have meaning to the
instant charter provision, an analysis of the word consecutive
must be made. Random House Dictionary provides the following
definition of "consecutive
Mayor John Erskine and
Members of the City Council_
Page 3
September 1, 1988
"l . Following one another in uninterrupted succession or
order; six consecutive numbers 2 . Marked by logical
sequence 3 . Gram, expressing consequence or result: a
consecutive clause.
Random House Dictionar .of English Langua e, Random House 1966 ,
p. 312 .
The phrase "two consecutive terms" must be interpreted to mean
"two uninterrupted successive terms" in order to provide meaning
to every word of, the charter § 300 prohibition.
The charter^does not further limit office-holding to a total of
"two terms only" ' or just "two terms," but rather only limits
election to a term in immediate succession beyond two consecutive
terms ._ Therefore, by. plain reading of the words there is no total
ban on further municipal council office-holding as long as the
additional term is not- held immediately after two consecutive
terms . Thus, by implication, after a non-office holding interval
breaking the two consecutive terms from .the new term, the
completion of two consecutive terms in office is no longer a bar
to a new term under Charter Provision 300 .
. . If. it was the intent of' the people who enacted the city Charter
amendments to limit the total number of terms that a council
member could serve to two consecutive terms or eight years , then
the referenced prohibition could have been written as follows:
"No person shall be elected as a member of the City Council
for more than two terms and no person who has been a
member for more .than two years of a term to which
some other person .was elected shall be. elected to the City
Council more than one further term."....
CONCLUSION•
It seems clear that the plain meaning of Charter Section .300 .
prohibiting more than two consecutive terms, means exactly that,
and does not mean that Councilmember may not be elected after a
hiatus in time to a further term or two consecutive terms . � .
GAIL HUTTON
City Attorney
c m/
00, 30
CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH
HONORABLE MAYOR JACK KELLY & GAIL HUTTON
To MEMBERS OF THE CITY COUNCIL From City Attorney
The Inherent Incompatibility February 25, 1987
Subject Holding An Elected Office and Date
Any Other City Employment at the
Same Time
The question has been posed "may an elected city official hold
other employment with the city?"
Answer : No .
Conclusion
The elected city officials are the City Clerk, City Treasurer, y
City Attorney and. the Mayor and Councilpersons .
The Law _
The inconsistency which at common law makes offices
"incompatible" does not consist in any physical impossibility
to discharge the duties of both offices, but in a conflict of
interests, as where one is subordinate to the other and
subject in some degree to the supervisory power of its
incumbent, or where the incumbent of one of the offices has
the power to remove the incumbent of the other or to audit the
accounts of the other. People on the Complaint of Chapman v.
Rapsey (1940) 107 P. 2d 338 (quoting 46 Cal . Jur . 941) .
Analysis
The question addressed in this opinion is the incompatibility
between the offices of elected City Treasurer and City
ABusiness License Manager.
The elected City Treasurer is required by Charter to perform
certain designated city functions . If, as is contended, the
incumbent City Treasurer also performed a separate position in
city government, as an employee, he would, of necessity
"report" to a "superior. " The choices are:
A) The City Administrator;
B) Some other elected officer (other than himself, i .e. ,
the Mayor, the Clerk or Attorney, or the Council as a body) ;
C) A subordinate of (A) or (B) .
In any conceivable situation, in his second or employee
capacity the rule of incompatibility as recited above would be
1 i
HONORABLE MAYOR JACK KELLY &
MEMBERS OF THE CITY COUNCIL
February 25, 1987
Page 2
violated. The penalty is that by accepting the second and
incompatibile office one vacates the first office. Thus, if
Mr. Hall accepted a subordinate position in city employment,
he would, ipse dixit, forfeit his City Treasurer position.
The Charter avoids this result by expressly providing that the
elected Treasurer and Clerk may be given other "consistent"
duties . By Resolution 5311 adopted on October 17, 1983 , it
was very carefully expressed that the City Treasurer was being
assigned additional duties pursuant to.-Charter Section 311(e) ,
and that the position of City Business License Manager was
being abolished .
The compensation was continued to be split on the apparent
theory that if the council later determined it was in the
. , . -city_'s .inte.rest..to.,nd.ivest the,Treasurer of •the license, manager � 4
duties, - it`would be a simple: matter to_.subtract_ the
compensator for those duties from the' Treasurer' s 'compensation
package .
A copy of Resolution 5311 is attached.
Conclusion
Adoption of Resolution 5311 established the assignment of the
business license manager duties to the Treasurer, it abolished
the separate position of city business license manager in the
personnel system which had been held by Dan Brennen. It made
clear that the City Treasurer did not hold two positions in
city employment, dispelling the fiction that the City
Treasurer was an elected official and a member of the
personnel system, a fiction which, if true, would have
violated Charter Section 403 (which exempts elected officials
.rfrom the personnel system) and obviated any conflict of
interest problem for the City Treasurer incumbent on the
compatibility doctrine.
GAIL HUTTON
City Attorney
cc : Warren Hall, City Treasurer
Charles Thompson, City Administrator
Robert Franz, Deputy City Administrator/
Chief of Administrative Services
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