Loading...
HomeMy WebLinkAboutDrainage General Plan - Procedure - Opinion 78-7 - HBMC Sec59 19 N OFFICE OF THE CITY ATTOR14EY OPINION NO. 78-7 March 27, 1978 SUBJECT: Drainage General Plan - Procedure REQUESTED BY: H. E. Hartge, Director of Public Works PREPARED BY: Gail Hutton, City Attorney James Georges, Deputy City Attorney QUESTION 1: Can Municipal Code Section 14.48.010 be amended to delete Article 5 (commencing with Section 65300) of Chapter 3 of Title 7 of the California Government Code from the City's Master Plan of drainage? ANSWER 1: No. QUESTION 2: Can Municipal Code'Section 14.48.010 be amended to provide that the City's Master Plan of drain- age is to be adopted pursuant to only Article 5 (commencing with Section 65300 and ending 65307) of Chapter 3 of Title 7 of the California Govern- ment Code and not with any other article of Chapter 3, Title 7? ANSWER 2: Yes, but Ordinance Code Section 9802 must also be amended. QUESTION 3: Was the City Council's action of October 6, 1976, changing the boundaries of the drainage districts by simple motion, a valid and legal action? ANSWER 3: No. DISCUSSION NO. 1: California Government Code, commencing with Section 65300, sets forth a comprehensive scheme covering the authority for and scope of general plans. The following is a brief highlight of such authority and scope of general plans. The following section numbers refer to the California Government Code, unless other- wise so indicated. Section 65300. The Planning Department shall prepare, and the City Council shall adopt, a comprehensive, long-term general plan for the physical development of the City. Avrk OFFICE OF THE CITY ATTORNEY March 27, 1978 OPINION NO. 78-7 Page Two Section 65303. This section lists the elements permitted in the general plan. Section 65305 The Planning Department shall refer the general plan or any part or element of it to the County Planning Department. The provisions of this section are directory, not mandatory. Section 65351. The City Planning Commission shall hold at least one public hearing before approving a general plan, or any amendment to such plan, or any part or element thereof. Section 65352. The City Planning Commission shall approve by resolution the general plan, or any amendment to such plan, or any part or element thereof. Section 65355. Before adopting the general plan or any amendment to such plan or any element thereof, the City Council shall hold at least one public hearing. Section 65356. After the Planning Commission has adopted any amendment to the general plan and transfers it to the City Council, then the City Council shall not make any changes or additions with- out first referring the change or addition back to the Planning Commission for a report from the Planning Commission. Section 65357. The adoption of the general plan or any amend- ment to such plan or any part or element thereof, shall be by resolution of the City Council. Section 65700. The provisions of Chapter 3 shall not apply to a charter city, except to the extent that the same may be adopted by charter or ordinance of the city; except that charter cities shall adopt general plans in any case, and such plans shall be adopted by resolution of the city council, and such plans shall contain the mandator elements required by Article 5 (commencing with Section-65300) of Chapter 3 of Title 7. Therefore, according to Section 65700, it is mandatory that the City's general plan contain the mandatory elements required by Article 5, commencing with Section 65300. Municipal Code Section 14.48.010 cannot be amended to delete reference to Article 5. DISCUSSION NO. 2: Section 65700 provides that charter cities shall be subject to the provisions of Article 5 (Sections 65300 through 65307) of Chapter 3 of Title 7 which contain the mandatory elements of a general plan. OFFICE OF THE CITY ATTORNEY March 27, 1978 OPINION NO. 78-7 Page Three If Municipal Code Section 14.48.010 is amended to adopt only Article 5 and not adopt Articles 1, 2, 3, 4, 63 73 8, 93 103 11 and 12 of Chapter 3, then Government Code reauirements such as amending the general plan or any amendments to such plan by resolu- tion of the City Council shall not apply to this city, nor shall it be required to hold public meetings prior to amending the general plan. Ordinance Code Section 9802 mast also be amended. DISCUSSION NO. 3: The City Council's action of October 6, 1976, in which the bound- aries of the drainage districts were changed by a simple motion was invalid because, as it presently reads, Municipal Code Section 14.48.010 requires that amendments to the general plan or any part or element thereof shall be by resolution of the City Council. Section 65357 mandates such a procedure. This mandate can be deleted by amendment to Section 14.48.010. CONCLUSION: Government Code Section 65357 provides that the adoption of the general plan or any amendment to such plan or any part or element thereof shall be by resolution of the City Council. This is pre- sently required in this City, but this procedure may be discon- tinued if Municipal Code Section 14.48.010 is amended to adopt only Article 5 of Chapter 3 of Title 7 of the Government Code. The City is mandated to adopt only Article 5. Government Code Section 65355 provides that the City Council must hold at least one open hearing prior to amending the General Plan, but this procedure may be discontinued if Municipal Code Section 14.48.010 is amended to adopt only Article 5 of Chapter 3 of Title 7 of the Government Code (Sections 65300 through 65307)• Ordinance Code Section 9802 must also be amended. �GAIL HUTTON City Attorney ,9 / JAMLS GEORGES Deputy City Attorney GH:JG:ps cc: Ed Selich, Planning Director Ron Lacher, Division Engineer, Public Works John Whipple, Public Works Michael Zambory, City Engineer