HomeMy WebLinkAboutCE 78-51/AR 78-74 Poss/Foss Appeal 1978-1980 117 City of Huntington Beach
_'• rj' " ,� P.O. BOX 190 CALIFORNIA 92648
� ' . OFFICE OF THE CITY CLERK
July 23, 1980
I HEREBY CERTIFY that the foregoing pages , numbered from
1 through 17, inclusive, represent a true and accurate transcription
of a tape recording of the proceedings of the City Council , City
of Huntington Beach on April 7, 1980.
DATED this 23rd day of July, 1980 , in the City of Huntington Beach,
County of Orange, State of California.
ALICIA M. WENTWORTH , CITY CLERK
By:
Connie Brockway
Deputy City Clerk
STATE OF CALIFORNIA
COUNTY OF ORANGE
On July 23, 1980, before me, the undersigned, a Notary Public in and for said
State, personally appeared Connie Brockway, known to me to be the. person
whose name is subscribed to the within instrument and acknowledged that she
executed the same.
WITNESS my hand and official seal .
0MCIA1. SEAL
Signature ;�'� EVEIYN SCHUB RT
NOTARY PIALIC CALIFORNIA S
'tr OP.AUGE COUNTY
Gsb/� �- My comm. expires MAR 25, 1993
✓P�Gii�G h �" _
Name Typed or Printed
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9
1 Please come forward. State your name and address ,
2 please.
3 MR. JAMES FOSS : I 'm James Foss . Along with
4 Charlie Poss , we're the owners of the subject property.
5 I would like to present you first with a brief
6 prepared by our attorney, which outlines some of the legal
7 and factual aspects of our position.
8 Conditional Exception Number 78-51 is a request
9 to reduce the required 6% landscaping to approximately
10 1. 5%, as a requirement to the issuance of a permit for the
11 construction of a Contractors Equipment Yard.
12 The City of Huntington Beach Planning Commission
13 has approved the conditional exception, subject to some
14 twelve conditions . These conditions. are acceptable to us ,
15 with the following exceptions :
16 Condition 1 is a .requirement of a fifteen-foot �(
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17 wide landscaped area, witb4six-foot high decorative masonry
18 wall at the fifteen-foot setback, recessed a minimum of
19 forty feet at the proposed driveway.
20 A ten-foot landscaped area, as originally
21 suggested by the Design and Review Board, is adequate to �(
22 uphold the aesthetic standard along Gothard, and in this
23 Cone.
The parking areas to the north are only set
24
25 back ten feet, and the masonry wall to the south is only
26 set back three to five feet .
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1 1 would like to introduce some photos , which show
2 the surrounding area, including the A-Z dismantling yard
3 to the south, Metzler Lane gulch to the north, the City
4AW
4 park to the,, ast, and the City library and park frontage
5 on Talbert, which illustrates the City's own standards .
6 The requirement that the wall be recessed a
7 minimum of forty feet on both sides of the driveway is
8 unreasonable and unnecessary. The yard would operate with
9 an opaque gate,, which eliminates the need for this recess .
10 Condition 2 requires a landscaped island, or
11 grouping, to be placed at some point within the facility,
12' directly in back of the proposed driveway.
13 This requirement is inconsistent with current
14 requirements of others , and is a safety hazard, and would
15 result -- or could result -- in personal injury and
16 property damage, both within the property and on the
17 sidewalk outside. This is a most unusual and unreasonable
18 requirement.
19 Condition 4 requires that the six-foot block wall
20 be extended around the future intersection of Metzler Lane ,
21 with the curved area landscaped.
22 This will reduce the usable property at a time
23 when Metzler Lane is not being constructed. This should
24 not be a requirement until such time as Metzler Lane is
25. improved. There is no current plan to improve this
26 proposed street.
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1 Condition 6 requires a one hundred foot by
2 thirty-five foot asphalt-concrete driveway.
3 We propose to place six inches of base material,
4 which will be oiled with rock chip seal . This is sufficient
5 to accomplish the intent of preventing dirt and mud from
6 being tracked. on to Gothard. We request that this
7 requirement be modified.
8 As pointed out by Mr . Sangster, there are four
9 requirements in order to prove hardship to justify a
10 reduction in the 6% landscaping . X
11 The first, Exceptional Circumstance : I think ; \
12 the depth of this property versus the frontage and usage,
13 along with . the fact that the public does not use this
14 property, is an exceptional circumstance .
15 Landscaping beyond that which is required along
16 Gothard, and along the future Metzler Lane, when installed,
17 would be of no use, and an economic waste.
18 In addition, the area is exceptional in that the X
19 property bu*$ up to a railroad embankment to the east, to
20 the A-Z dismantling yard to the south, and an unimproved
21 gulch to the north.
22 Necessity to Property Rights : As you know; our
23 present use of the property is not the highest and best
24 use . The various .requirements which are being put upon us ,
25 including the 6% landscaping requirement , makes the cost
26 so high as to prevent us from using the property for the
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1 proposed use. Again, a 6%.. requirement would be of no
2 benefit to the public, and an economic waste . '
3 Absence of Detriment : There is no detriment
4 to the public. The Development staff -- Services staff. --
5 takes the position that minimal aesthetics require/ 6%
6 landscaping.
In order for the public to even see the 6%
8 landscaping from Gothard, we would have to have a forty-
9 foot setback of the planted area. A ten-foot setback,
10 planted, is sufficient to preserve and promote an
I1 aesthetically pleasing atmosphere.
12 The final item is Good Faith: I can assure you, �(
13 we are acting in good faith, and the Development Services
14 Department is not question* this requirement. For example ,
15 we are willing to landscape along Gothard in excess of
16 what has been installed by some of our neighbors , in order
17 to promote aesthetic value in the Gothard area .
18 Administrative Review 78-74 . is , Request for Permit
a
19 to Operate a Contractors Equipment Yard, at the subject
20 location:
21 The Board of Zoning Adjustments has denied this
22 permit because we will not agree to dedicate and bond a
23 paved right-of-way; Metzler Lane, in addition to the
24 landscaping requirements referred to previously.
25 The requirement of Metzler Lane dedication was
26 appealed to the Planning Commission. The Planning Coumission
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1 was advised by the City Attorney'.s Office that they did
2 not have the right to defer this dedication.
3 The Planning Commission and the Planning Department
4 dealt with this subject in the hearing, but did not include
5 it as an itemized condition in their approval . Presumably,
6 they are taking the position that it is not within their
7 authority :to deny or grant this item..
g Now the City Engineer has recommended that we
9 be required to dedicate a twenty-foot wide strip of land,
10 and install drainage and sewer facilities . While I don' t
11 know the exact alignment of this system, it is probably
z: 12 somdwheres' in the neighborhood -of nine hundred feet. The
13 _ storm drain is a fifty-four inch pipe .. These two items
14 could run as much as a. hundred and thirty thousand dollars , �,•
15 OmA., Maybe that request was removed tonight . I 'm
16 not sure what Mr. Sangster was advising you in that area,
17 but the packet that I saw made that part of a recommendation
18 of the Public Works Department.
19 Neither the proposed forced dedication of
20 Metzler Lane, the sewer and storm drain facility easement,
21 or their construction, benefit our property.
22 It is also our position that the requirement
23 of dedication and bonding of this paved right-of-way, and
24 the requirement of the dedication, and the construction .
25 of the drain and sewer facilities, are unconstitutional .
26 The State of California Government Code , Section
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• CITY OF HunTinGTon BEACH
DEPARTMENT OF PLANNING AND ENVIRONMENTAL RESOURCES
• P. O BOX 190, HUNTINGTON BEACH, CALIFORNIA 92648 (714) 536-5271
TO: Honorable Mayor and City Council
ATTN: Floyd G. Belsito, City Administrator
DATE: December 14 , 1978
SUBJECT: APPEAL: CONDITIONAL EXCEPTION NO. 78-51 AND ADMINISTRATIVE
REVIEW NO. 78-74 - CONTRACTOR' S EQUIPMENT YARD
C. POSS AND J. FOSS
Pursuant to your request, followinq is a summary of the original request
and Planning Commission action on landscaping.
'Mr. ..:Poss had originally requested a reduction from the six percent land-
scaping required by code for his facility to approximately 1. 5 percent;
however at the time the Planning Commission reviewed the conditional
exception request, they did not feel that this magnitude of reduction
was conducive to the City' s efforts in regard to Central Park across
Gothard from the subject site.
• The Commission therefore conditioned additional landscaping along Gothard
and Metzler Lane to equal a percentage of approximately 4 . 8 percent of
landscaping required for this facility.
Respectfully submitted,
a
James W. Palin
Acting Planning Director
JWP:df
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CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH - •
To Honorable Mayor From Office of the City Attorney
and Members of the City Council
Subject APPEAL TO CITY COUNCIL Date December 13, 1978
CONDITIONAL EXCEPTION #78-51
ADMINISTRATIVE REVIEW #78-74
December 18, 1978 Agenda item D2e
As additional backup material for your consideration of the above mentioned appeal
of C.W. Pass and James D. Foss, I attach herewith a copy of the opinion of this
office relevant to this appeal. This opinion reflects on the legal validity of the ,
City Ordinances currently in effect and applicable to this appeal.
Respectfully Submitted,
GAIL HUTTON
City Attorney
GH:cw •
'cc': Jim Palin, Planning Dept .
CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
• HUNTINGTON BEACH /
1
To GAIL HUTTON From JOHN O'CONNOR
City Attorney Deputy City Attorney
Subject C.W. POSS PROPERTY ALONG Date September 27 , 1978
GOTHARD - USE PERMIT
This memorandum responds to your request of September 20th
as to whether Government Code Section 65909 would prohibit
the city from requiring dedication of the precise planned
street known as Metzler Lane, and the procedure for requesting
alleviation of the 6% landscaping requirement on the project .
Briefly reviewing the history of this project , C .W. Poss , Inc . ,
a local contractor established a contractor storage yard on the
subject property without securing the appropriate permits from
the city; to wit :
(a) permit approval from the- Design Review Board
• (b) Administrative Use Permit from the Board of
Zoning Adjustments
Criminal complaints were filed against C .W. Poss , Inc . ,
on both of these counts , and the Court found C .W. Poss , Inc . ,
guilty on both counts and imposed as a condition of probation,
they procure the necessary permits from the City, and that if
a permit is denied that the matter be appealed within the
designated time , either through the .hiearchy of the city and
to the Court ; provided further, that if at any time an appeal
is not pending or the permits granted, they immediately cease
use of the property as a contractor storage yard . C .W. Poss , Inc . ,
through their attorney, is now questioning the validity of
City Ordinances which require the dedication of Metzler Lane ,
and 6% landscaping on the project as a condition of granting
their permits .
Metzler Lane is a precise , planned street which extends
for several hundred feet on the northerly edge of the subject
property and is situated between Sja.ter Avenue and Gothard
Street . One-half of the precise plan of street alignment
lies on the adjacent property to the north, which is undeveloped.
The subject ' s property was improved through extensive grading
and fill which extended the grade level of the subject ' s
• -1-
property some ten to fifteen feet abpvethe. existing natural •
grade on the adjacent property . Apparently, it will be some
time in ,the future before Metzler Lane is completely dedicated
and improved, however, a portion is already .dedicated and
improved, commencing at Slater Avenue . The precisely planned
street , Metzler Lane , would ultimately provide access from
the subject property to Slater Avenue as well as provide ingress
and egress to the numerous small parcels north of the subject
property. ,
It is! the contention of the property owner that the street
is of no value or use to the subject property and .not .reasonably
related to the use of the property as .a contractor' s s,to.rage
yard, and therefore .dedl.cation is prohibited by. Gov. .'Code 65909 .
Government Code 65909. provides : .
"§65909 . Prohibited conditions for issuance of
permit or variance .
No local governmental body, or any agency thereof,
may condition the issuance of any building or use
permit or zone variance on. any or all of the following:
(1) The dedication of land for any purpose not
reasonably related to the use of the property for •
which the variance, building, or use permit is
requested" .
(2) The posting of a bond to guarantee installation
of public improvements not reasonably related to the
use of the property for which the variance, building
pr use permit is requested" .
The decided judicial decisions have uniformly upheld the
requirement of dedication where a precise plan of street alignment
so requires , and where the designated use of the property would
increase the intensity of traffic . The leading case is
Southern Pacific Company V. City of Los Angeles , 51 Cal Reporter
9197 . In the Southern Pacific case , the City. of Los Angeles
required dedication of a street as a condition to establishment
of a warehouse use . Southern Pacific contended that this
requirement was an unconstitutional taking. The. Court , in an
extensive discussion of the existing cases , held that since
additional traffic may be generated by the use , dedication of
the street was justified under the police power . Section 65909
is a codification of that decision which is to the effect that
dedication must be reasonably related to the use of the
property . In this case , the use of a contractor' s storage yard
-2- •
• unquestionably generates additional traffic , the street is
contiguous to several hundred feet of the subject property,
and, therefore, dedication and improvement is justified under
the city ' s police powers .
Insofar as 6% landscaping is required, this is the uniform
requirement for all commercial and industrial developments
under city ordinances . If the property owner feels that it
is a particular hardship in his case , the appropriate procedure
is to apply for a variance under Article 983 of the Huntington
Beach Ordinance Code . Section 9830 provides , "when practical
.. difficulties, unnecessary hardship, or results inconsistent
with .the general purpose and intent of applicable provisions
of Division- 9 occur through strict application of their pro-
visions , that a request for a conditional exception may be
filed: " Sections 9832 . 1 through 9833 set forth the require-
ments for a conditional exception whi.ch are as follow:
S. 9832 . 1 Exceptional circumstances . That there
are exceptional or extraordinary circum-
stances or conditions applicable to the land, build-
ings, or premises involved, or to the intended use
of same, that do not apply generally to the property
or class of uses in the same district .
S. 9832 . 2 Necessity to property rights . That such
• conditional exceptions are necessary for
the preservation and enjoyment of substantial prop-
erty rights .
S. 9832 . 3 Absence of detriment . That the granting
of such conditional exceptions will not
be materially detrimental to the public health,
safety, and welfare or injurious to the conforming
land, property, or improvements in the neighborhood
of the property for which such conditional exception
is sought .
S . 9832 . 4 Good faith. That the applicant is willing
and able to carry out the purposes for which
the conditional exception is sought; that he will pro-
ceed to do so without unnecessary delay .
S . 9833 Hearing and findings of hardship required .
Before a conditional exception may be granted
by the Council or Commission, the Council or Commission.
shall hold a public hearing relative to the proposed
conditional exception, as provided in Article 987 , and
findings in support of and relevant to the hardship
standard must be made .
-3-
i
If all of the findings are made in accordance with the
foregoing provisions a conditional exception may be granted
diminishing the requirement of the 6% landscaping.
JOHN 0 ONNOR
Deputy City Attorney
JOC :yr
APPROVED:
GAIL HUTTON
City Attorney
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December 1.3, 1978 C✓lY ���'1
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To : City Council Members
City of Huntington Beach
Subject : Storage yard on Gothard Street
I am the owner of three acres of land adjacent to
Mr. Poss on the south and directly behind the A to Z Auto
Wreaking. At the present time my property is virtually land
locked from public street access . The current Metzler Lane
• precise plan of street alignment makes no provision to solve
this problem. Furthermore, the issuance of Mr . Poss ' s storage
yard permit without additional restrictions , such as requiring
that Metzler Lane be extended south to my property, would insure
the permanance of this situation and preclude the development of
highest and best use improvements on my acreage .
Two important engineering studies are presently being
conducted for this area. One study being prepared by Hall and
Foreman Engineering will result in the design of a master storm
drain system intended to correct the present flooding problems
in the area. This- will be of great benefit to my property if
street access can also be obtained.
The second study was initia�ed as a the result of a meeting
held by Mr . Bill Hartge and Mr . Mike Zambori, and attended by Walt
Hamilton of Ronald Martin and Associates , Charles Poss , James Foss ,
• Wilber Metzler , Frank Buccella and myself .
Continued
At this meeting the three landowners , Metzler, Poss and myself
agreed .to fund a feasability study for an extended Metzler Lane .
The alignment selected by all the parties would extend Metzler
Lane in such a way as to encourage better development in the
area. This study will establish the detailed street design,
estimate the improvement costs , and estimate the benefits each
property owner will derive . The formation of an assessment
district for full street improvement is the long range goal .
In light of. these considerations , :I respectfully request
that the City Council postpone the issuance of the storage yard
permit to Mr. Poss until these two studies have been completed.
Sincerely yours , •
Tom Manthei
TM:ge
•
PROPOSED FINDINGS:
1. There are no exceptional or extraordinary circumstances
related to the subject property that do not apply generally
to the property or class of uses in the same district. The
requirement for 6 .percent of the total site to be landscaped
is a City-wide standard and has been applied in numerous
instances without creating an undue hardship on other proper-
ties in the City . The subject property is virtually 1.00
percent usable and, therefore, the 6 percent landscaping re-
quirement would not substantially impair .the use of the
property.
2 . Said conditional exception is not necessary for the preserva-
tion and enjoyment of substantial property rights on the
subject property. . The property owner has full rights to
develop and utilize the subject property in compliance with
the provisions of the M1 zoning district. The 6 percent
landscaping requirement is reasonable and a - standard require-
ment for this industrial zone and all other industrial and
commercial zones within the City. The proposed equipment
storage can still utilize the remaining 94 percent of the
subject property.
3 . The granting of such a conditional exception will be detri-
mental to the public welfare in the neighborhood insofar as
all of the adjacent properties in the general area and
all other commercial or industrial properties in the City
have provided a minimum of 6 percent landscaping, which has
established an aesthetic standard for not only the general
area but the entire City. The granting of this reduction in
landscaping would afford special privileges which would
-undermine this aesthetic standard.
4 . There is no reason to assume that the applicant is not willing
and able to carry out the purposes for which the conditional
exception is sought without. unnecessary delay.
I
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3 ME14BERS OF THE CITY COUNCIL IN ATTENDANCE:
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5 DON MACALLISTER, Mayor
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6 BOB MANDIC, Mayor Pro-Tempore
j RUTH BAILEY
$ RUTH FINLEY
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}{' 9 RON PATTINSON
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10 JOHN THOMAS
11 CLANCY YODER
4
13 MEMBERS OF THE CITY STAFF IN ATTENDANCE. ( irk
14 GAIL HUTTON, City Attorney
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15 ROBERT C. SANGSTER, Deputy City Attorney
16 . JIM PALIN, Director of Development Services
17
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1 P R O C E E D I N G S
2
3 MAYOR MACALLISTER: All right , the last of the
4 public hearings tonight.
.5 Item D-3. A. Reconsideration of an Appeal to
6 Conditions of CE 78-51 and AR 78-74, known as Poss/Foss .
7 Transmittal from Development Service Department,
8 Appeal of Poss/Foss to the Planning Commission's Condition
9 of Approval of Conditional Exception 78- and Administrative
10 Review 78-74.
11 The Superior- Court has mandated that the City
12 Council reconsider the prior denial of its approval to the
13 Commissions .
14 The CE 78-51 is a request to reduce the required
15 on-site landscaping.
16 AR 78-74 is a request to approve site plan,
17 elevation and floor plans , for Permanent Contractor
18 Equipment Storage Yard, in accordance with all applicable
19 code requirements .
20 The subject site is located on the east side of
21 Gothard, approximately a hundred feet north of Talbert .
22 City Attorney Gail Hutton, please! .
23 MRS . HUTTON: Yes . I ' d like to offer the
24 opportunity for the Council to receive some advice from
25 Robert Sangster, the. Deputy , who was assigned to this case,
26 and who has some suggestions and advisements for you.
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1 MAYOR MACALLIS.TER: All right, thank you very much.
2 Mr. Sangster, go right ahead. .
3 MR. SANGSTER: Thank you.
4 Mr. Mayor, members of the Council, we thought;
5 if you' d. like, we might just briefly review some of the
6 legal aspects of what's before you; and Mr. Palin can talk
7 about the planning considerations .
8 This is , basically, a •reconsideration of an
9 appeal to the grant of Conditional Exception Number 78-51,
10 which was made by the Planning Commission, subject to
11 various conditions .
12 The Conditional Exception is to reduce the
13 required landscaping on the subject property from 6% to
14 the applicant's. requested approximately lk%.
15 After the BZA denied the application, the
16 Planning Commission then considered it, and reversed that
17 decision, requiring some 4.8% landscaping. And it imposed
18 some twelve conditions .
19 The appeal was thereafter filed by the applicant,
20 who was unhappy with some of the conditions contained in
21 the staff report of the Planning. Commission' s action,
22 namely, Conditions 1, 29,. 4 and 6 .
r23 In the file the . evidence introduced before
24 the Planning Commission, and the BZA, and also , before the
25 Council , is before you, and on file here .
26 The issue is , whether to grant the application
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1 to reduce the code required 6`70 landscaping . In order to
2 grant this , you're guided by four standards in the Ordinance
3 Code, and they 're basically factual questions which you
4 have to decide, and they also are set forth in the
5 Development Services staff report; and, briefly, you have
6 to find exceptional circumstances applicable to the subject
property distinguishing it from other property in the
8 area, and the zone, the necessity to property rights ,
9 and the absence of detriment and good faith on the part
to of the applicant.
11 The staff report includes the prior action of
12 both the , BZA and the Planning Commission, and I believe
13 the letter of appeal, which states the objections to various
14 conditions, is also attached.
15 You have three choices -- three alternatives :
16 You may affirm the Planning Commission' s granting; you
17 may overrule that and deny the conditional exception;
18 or you may modify the Planning Commission' s decision.
19 Now, . if the Planning Commission' s granting of
20 the conditional exception is affirmed, you may also modify
21 it by deleting .or adding additional conditions of approval .
22 If the granting is overruled; then, of course ,
23 there is no basis for any conditions .
24 The Director of Development Services has
25 recommended overru�flndings .
ing he Planning .Comnlission decision,
r26 and has proffered I believe those are forth
set o t
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1 both in the staff report, and on a separate sheet -- which
2 contains one slight change, the last sentence to Finding 3
3 is a little bit different.
4 I might also note that we sent you, on February
PR;or' X
5 21, .various papers relating to pa.*&litigation in this
6 matter.
. 7 Once having decided the issue of the conditional
8 exception, then the Council must also address the
9 administrative review. These would be the proposed
10 findings .
11 You might note that the last sentence of Paragraph
12 3 is a little different; a little more directly related to
13 the issue . The only change is the sentence at the end
14 of Paragraph 3:
.15 "The granting of this reduction in
16 , landscaping would afford special
WOO I�
17 privileges which $hvtrYti undermine the
18 aesthetic standard. "
19 With reference to .the administrative review, the
20 AR, the City. Council may affirm, reverse or modify; the
21 Planning Commission decision, specifying the facts relied
22 upon.
23 Now, basically, this AR. is just administerial
24 review to determine whether the occupancy complies with
25 the variance Ordinance. Code requirements .
26 The use here is an expressly permitted one, so
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1 that is not a consideration; but. the site plan for the
2 occupancy must meet various requirements ; and those would
3 include: compliance with landscaping; setbacks ; street
4 requirements ; street, alley and highway, dedications ; and
5 so forth. It does not include drainage easement
6 dedications , because that is not one of the express.
7 ordinance requirements .
8 Now, ,if it doesn' t comply with these various
9 code requirements , then the appeal should be denied
10 without prejudice . to filing a -revised administrative
11 review with the. Planning Director .
12 Please note that new conditions not required by
13 the Ordinance Code may be imposed upon the administrative
14 review; so', while the drainage fees may be required,
15 dedication of a drainage easement, mentioned in the City
16 Engineer' s memorandum in the staff report, may not be
17 required.
18 The Director will discuss the planning aspects ;
19 and the applicant should be afforded an opportunity, then,
20 to present any additional evidence -&ket he may have.
.�
21 MAYOR MACAL•LISTER: All right, thank you.
22 Staff, is there any further input?
23 MR. PALIN: Mr . Mayor, and members of the City
24 Council, Bob was extremely thorough. There 's really not
25' too much more to say.
26 We do have the original site plan for display, as
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1 approved by the Planning Commission; and we have an overlay
2 which reflects the landscaping in the compromise position
3 that was discussed previously with the' City Council .
4 As indicated by Bob, essentially, the applicant ,
5 after review and conditional approval by the Planning
6 Commission, was proposing , essentially, about 4. 6 -- 4. 8%
7 landscaping.
8 That did take into consideration a fifteen-foot
9 setback, the block wall construction, and the ultimate
10 landscaping to be installed at some future date; also ,
11 along the orange area on the site plan there, which would
X
12 beA Metzler Drive dedication and improvement .
13 Just to quickly recap : Our recommendation is
14 to wipe the slate clean, to deny the request pending here
15 before you tonight; remand the action back to the Board
16 of Zoning Adjustment to act upon a site plan that has
17 full compliance with all provisions of the Ordinance Code.
18 We.'re prepared to answer questions .
19 MAYOR MACALLISTER: Are there any other Council
20 questions at this time, before I open the public hearing?
21 (No audible response to the question. )
22 Seeing none, I' ll declare the public hearing open
.23 in regards .to the reconsideration of appeal conditions of
24 CE 78-51 and AR 78-74.
25 Is there anybody who wishes to speak in regards
26 to this item?
M&M Certified Court Reporters
(213)637.3550 MACAULEY,BARRETT,CRAM, DAWSON&MELMAN (714)558-9400
14
1 65909, prohibits the requiring of the dedication of land
2 for any purpose not reasonably related _to the use of the
3 property for which the variance, building or use permit ,
4 is requested..
5 Court cases have also required government to
6 demonstrate that some economic benefit would result to the
property owner from the nature of the forced dedication.
8 The dedication clearly does not relate to the proposed use
9 of the property. Ingress and egress to the property from
10 Gothard is more than satisfactory.
I1 The entire area sought to be dedicated is
12 unimproved and, in fact, the street could not be constructed
13 due to the fact that one-half of the street -- the north
14 half -- is in an unimproved gulch.
15 The dedication and construction of sewer and
16 drainage lines is of no benefit to the present use of
11 the property. The benefit of the drain goes to the
18 surrounding property owners , not to this property.
19 There's more than ample time to require these
. 20 dedications ; at such time as the property is developed
21 and built upon.
22 Many. of the proposed requirements are a waste,
23 and will have to be bulldozed into the ground when the
24 property is put to its ultimate use . This , most likely ,
25 will include the masonry wall across the front, which we
26 have agreed to install.
lrl(X, M Certified Court Reporters .
(213)637-3550 MACAULEY,BARRETT,CRAM,DAWSON&MELMAN (714)558.9400
• 15
1 L believe that it is now more important than
2 ever for the people of this country -- including government --
3 to run their affairs on a sound economic basis .
4 Many of the requirements being imposed upon us
5 here are not sound, are an economic waste, and can not help ,
6 and contribute to more inflation:
7 I-11.1 be happy to -answer any of your questions . _
8 I 've got- one more thing I' d like to give you,
9 and that. is a recital of much of what. I've said here .
10 MAYOR MACALLISTER: All right, thank you, Mr .
11 Foss .
12 Is-there anybody else who wishes to make any
13 comments from the public in regards to this item?
14 (No audible response to the question. )
15 Seeing none, . I declare the public hearing
16 closed. Council, are there any question,
17 (No audible response to the question. )
18 Seeing no lights on, a motion is in order --
19 'Councilman Thomasl
20 COUNCILMAN THOMAS : I ' d like to ask, what' s your
21 when, and what ' s your future , for that. property?
22 MR. FOSS : I would have to say, that.' s speculation.
23 But I most certainly believe that it will end up in
24 industrial-- like industrial buildings -- at a future. date.
25 The use we have. a4-44 to now is -- economically,
26 it won' t be feasible in the long run; and we know that' s
OiC M Certified Court Reporters.
(213)837.35M MACAULEY,BARRETT,CRAM;DAWSON&MELMAN (714)558-9400
16
1 most like what it will end up by being.
2 COUNCILMAN THOMAS.:4How long off?
:VCAV1f-
3 MR. FOSS I would be lying if I tried to put
4 a figure on that I can' t. I can' t say, for sure; but the
5 value of the property is such that it just will not, and
6 can not, remain what it is , for too long.
7 . 'MAYOR: MACALLISTER: All right , thank you.
8 Are there any other questions or comments?
q (No audible response to the question. )
10 A motion is in order. Councilman Mandicl
11 COUNCILMAN MANDIC: Okay pprove the
:y
12 Recommendation of the Department of Development Services ,
13 and Deny CE 78-51 and AR�-74, with the Findings as Amended.
.: 14 MAYOR MACALLISTER: That were passed out a few
F.
15 moments ago
16 COUNCILWOMAN BAILEY: Second.
17 MAYOR MACALLISTER: It' s been moved and seconded --
18 MRS . HUTTO ,Without prejudiced
19 . Without prejudice ; right.
AWN
20 COUNCILWOMAN BftTt%f Second.
21 MAYOR MACALLISTER: All right, it' s been moved and
22 seconded.
23 Councilman Pattinson.1
24 COUNCILMAN PATTINSON: Point of information, Mr.
25 Mayor. Should these proposed findings be stated for the
26 record?
1r1CX M Certified Court Reporters
(213)837.36W MACAULEY,BARRETT,CRAM,DAWSON&MELMAN (714)558-8400
:v
it
- 17
1 MAYOR MACALLISTER: I .was going to ask that
2 question. Do we need to read these into the record?
3
4 MR. SANGS-TER: No.
5 .MAYOR MACALLISTER: All right, thank you. Do you
6 have a copy of it?
7 P.zT fL&K.. Yes
8 MAYOR MACALLISTER: Right. All right, seeing no
9 other questions or lights on, call ` for the question.
,t
10 . CLERK: Six ayes ; Thomas no.
. 11
12 (WHEREUPON, THE PROCEEDINGS
13 WERE TERMINATED. )
14
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M&M
Certified Court Reporters
(213)837.35W MACAULEY,BARRETT,CRAM,DAWSON&MELMAN (714)558-9400
' • 18
1 C E R T I F I C A T E
2
3 I HEREBY CERTIFY that the foregoing pages, numbered
4 from-1 through .17, inclusive, represent a true and accurate
5 transcription of a tape recording of the proceedings of the
k. 6 City Council, City of Huntington Beach, 4/7/80, Item D-3.
.7 DATED this 5th day of June, a.d. 19801 in the
g City and County of Orange, and State of California.
9
10
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12
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14 c.... ...1�
15 _
i ARTHUR SPRI G
16
17
OFFICIAL SEAL
1 H o PRING
NOTARY PUBL C ARTHUR S AR PI
CALIFORNIA
.I RIVERSIDE COUNTY
19 Mq comm. expires SEAL
26, 1981
4 '
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lrl&M Certified Court Reporters .
(213)837-3550 MACAULEY,BARRETT,CRAM;DAWSON&MELMAN (714)558-9400
E:
e,
City of Huntington Beach
P.O. BOX 190 CALIFORNIA'92648
OFFICE OF THE CITY CLERK
I
April 25, 1980
Charles W. .Poss/James D. Foss
P. 0. Box 1610
Huntington Beach, CA. 92647
The City Council of.the City of Huntington .Beach at its April 7, 1980
meeting denied your appeal pertaining to Conditional Exception No. 78-51
and Administrative Review No. 78-74.
This. is a final decision. You are hereby notified that pursuant to provisions
of Section 1094.6 of the Code of Civil Procedure of the State of California
You have ninety days from April 25, 1980 to apply to the courts for judicial
review. .
ALICIA M. WENTWORTH, CITY CLERK
By:
Deputy
AMW:CB:bt
CC: City Attorney
i
i
WILLIAM E. GUMMERMAN
ATTORNEY AT LAW
HUNTINGTON EXECUTIVE PARK-EAST BUILDING
16152 BEACH BOULEVARD,SUITE 279
HUNTINGTON BEACH, CALIFORNIA 92647
TELEPHONE (7141 848-1088
April 22 , 1980
City Clerk
City of Huntington Beach
P . O. Box 190
Huntington Beach, CA 92648
Attention: Alicia Wentworth
Re: Reconsideration of Appeal to Conditions
of Approval : CE 78-51/AR 78-74
Dear Ms. Wentworth:
Pursuant to Huntington Beach City Ordinance Code, I
hereby request that you transmit as soon as possible to
me the public hearing transcript .on the Reconsideration
of Appeal to Conditions of. Approval CE 78-51/AR 78-74 with
the tape of the Huntington Beach City Council meeting of
April 7 , 1980. My clients will bear the cost of such transcript
and tape by remitting a check to you upon receipt of an
appropriate billing sent to me. .
Further request is made pursuant to Huntington
Beach City Ordinance Section 9815 . 5. 5 for official notice
of the decision, which should have been sent within five
days of the making of such decision.
I would appreciate your cooperation in this matter.
If you have any questions regarding these requests, please
contact me immediately.
rs ve tr ly,
illiam E. erman
WEG/pb
cc: James Foss / J
C. W
/t;F44
City of Huntington Beach
P.O. BOX 190 CALIFORNIA 92649
OFFICE OF THE CITY CLERK '
April 18, 1980
Charles W. Poss/James D. Foss
P.O. Box 1610
Huntington Beach, CA 92647
Enclosed is a "Statement of- Action" of the City Council of
the ,City of Huntington Beach taken-at its regular -meeting
hel.8 .Monday, April 7, 1980 relative to reconsideration of
your appeal pertaining to Conditional Exception No. 78-51
And Administrative Review No. 78-74.
If you have any questions .regarding the matter, please contact
the Department of Development Services - 536-5271 :
ALICIA M. WENTWORTH, CITY CLERK
By:
Deputy
AMW:cb
enc.
cc: James Palin - Director of Development Services
CITY OF HUNTINGTON BEACH
LO INTER-DEPARTMENT COMMUNICATION '
HUNTINGTON BEACH
To CITY CLERK From ROBERT SANGSTER
Deputy City Attorney
Subject FOSS/POSS v. CITY OF Date April 11, 198o
HUNTINGTON BEACH
The following is a summary of the remarks we made concerning the hearing
of Conditional Exception -No . 78-51 and Administrative Review No . 78-74
at the City Council meeting on April 7, 1980 .
This is a reconsideration of the appeal to the grant of Conditional
Exception No . 78-51 by the Planning Commission, subject to various con-
ditions . The conditional exception is to reduce the required land-
scaping from the required 6% to 1-1/2100 . After the Board of Zoning
Adjustments denied the application, the Planning Commission granted
the CE, requiring approximately 4 . 8% landscaping and imposed some 12
conditions . The appeal was filed by the applicant , based on dissatis-
faction with some of the conditions of approval (namely 1, 2, 4 and 6) .
The file and evidence introduced before the BZA, Planning Commission,
and City Council is here this evening.
The issue is whether to grant the CE 78-51 to reduce the required 6%
landscaping. In order to grant this exception to zoning requirements,
Council must find in favor of the applicant on the standards set forth
in Huntington Beach Ordinance Code §9832 . These are factual questions
for Council' s determination. They are set forth in the staff report and,
briefly, are :
1. Exceptional circumstances applicable to the property that do
not apply generally to other property or uses in the zone .
2 . Necessity to property rights .
3 . Absence of detriment, and
4 . Good faith.
The staff report includes the Planning Commission's prior action, as
well as the BZA' s earlier denial . The letter of appeal is also attached .
Based on factual findings, the City Council may :
1. Affirm.
2. Overrule, or
3 . Modify the Planning Commission decision.
If the granting of the conditional exception is affirmed, the City Council
may delete or add conditions of approval . If the granting of the condi-
tional exception is overruled, then, of course, there is no basis for
To : City Clerk
Foss/Poss v. City
April 11, 1980
0
any conditions . The Development Services Director has recommended over-
ruling the Planning Commission' s decision and has offered proposed find-
ings . I might also note that we sent you various papers relating to
litigatioh .over this issue on February 21 .
Once having decided the conditional exception, the Council must also
address the administrative review application.
Again, the City Council may affirm, reverse, or modify the Planning Com-
mission decision, specifying the facts relied upon. Basically, an AR
is an administerial review to determine whether the occupancy complies
with applicable ordinances and codes . The use here is expressly per-
mitted -- but the site plan must meet such landscaping and street require-
ments as the code requires . If it doesn't the appeal should be denied,
without prejudice to filing a. revised AR with the Development Services
Director.
Please note that no conditions not required by the Ordinance Code may
be imposed upon an AR. So, while drainage fees may be required, dedica-
tibn of drainage easements mentioned in :the City Engineer ' s memo may not .
The Development Services Director will discuss the planning aspects .
The applicant will then be afforded an opportunity to present further
evidence support the application.t
ROBERT C . SANGSTER
Deputy City Attorney
RCS :ps
City of Huntington Beach
P.O. BOX 190 CALIFORNIA 92646
OFFICE OF THE CITY CLERK
March 19, 1980
Charles. W. . Poss/James .D. Foss
P. 0. Box 1.610
Huntington Beach, CA 92647
Gentlemen:
The City Council of .the City of Huntington Beach.at its regular meeting held
Monday,. March 17, 1980 approved your. request for a continuance .of the recon-
si'deration of appeal relative- to Conditional Exception #78-51 and Administra-
tive Review #78-74, to the April 7, 1980 meeting.
If. we may be of assistance to you, please contact this office - (714) 536-5405.
Sincerely,
Alicia M..Wentworth
City Clerk
AMW:cd
cc: Jim Palin, Director of Development Services
U 6erl —ap_v
ryW
1 n160 �C 10
•
I• ' CITY OF HUM FINGTON BEACH
�2 INTER DEPARTMENT COMMUNICATION
11UNIIN(;I0N MACH
To Director of Development Services From City Attorney
Subject Foss and Poss v. City of Date March 14 , 1980
Huntington Beach
It is our understanding that the reconsideration of the appeals on
CE 78-51 and AR 78-74 are set for hearing before the City Council at
its regular meeting of March 17 , 1980 . This is a reconsideration
pursuant to the writ of- mandate that was forwarded to your office on
February 21. We have received a telephone call from Mr. William
Gummerman, the attorney for the applicants , requesting that this
matter be continued until the following Council meeting. Apparently
your department did not notice the applicants that this matter was,
being set for hearing and they did not learn of that until we be-.
came aware of this oversight and telephoned them last. Wednesday. In
the interest of due process , it is suggested that you join with the
petitioners in requesting a continuance so that they might have an
opportunity to prepare a responsive case .
We note also that you. have set this matter for hearing under the com-
munications portion of the. agenda While this is not a hearing for
which publication is required, please be aware that due process re-
quires you to nonetheless afford the petitioners an opportunity to
speak and present evidence and other arguments in support of their ap-
plications . Accordingly, perhaps it might be better placed on the
agenda as a public hearing for which publication is not required under
the "D3" portion of the agenda. Alternatively, it could be maintained
. under the "M" section with an appropriate notation that the applicant
has a right to address the Council and present evidence and argument .
In our opinion, there is no legal necessity. to open the hearing up to
comments from members of .the public who are not parties to the appli-
cation.
ROBERT SANGSTER
Deputy City Attorney
RS: be
cc : City Administrator
City Clerk
REQUEST FOR CITY COUNCIL ACTION
Submitted by James W. Palin Department Development Services
Date Prepared March 10, , 1980 Backup Material Attached E] Yes No
Subject RECONSIDERATION OF APPEAL ON CONDITIONAL EXCEPTION NO. 78-51AND
ADMINISTRATIVE REVIEW NO. 78-74 TO REDUCE THE REQUIRED SIX PERCENT
LANDSCAPING AND APPROVE AN OCCUPANCY FOR A CONTRACTOR' S EQUIPMENT
STORAGE YARD. City Administrator's Comments
Approve as recommended .
Statement of Issue, Recommendation, Analysis, Funding Source, Alternative Actions:
STATEMENT OF ISSUE:
Transmitted for recon�sic�,,eration by the City Council are appeals to
- - O/Tiov O
Planning CommissGoIuion,tapproval of Administrative -Review No.. 78-74 and
Conditional Exception No. 78-51. -'The conditional exception is a re-
quest to reduce the required onsite. landscaping, while the admini-
/strative review is a request, to approve site plan, elevations, and
floor plans for a permitted contractor equipment storage yard.in
accordance with all applicable code requirements. . The Superior Court
has mandated the City Council to reconsider the prior denial of these
applications.
RECOMMENDATION:
The Department of Development Services is recommending that the City
Council deny Conditional Exception No. 78-51 and Administrative Review
No. 78-74 with findings as outlined in the discussion section of this
report.
ANALYSIS:
Appellant: Charles W. Poss/James D. Foss
P.O. Box 1610
Huntington Beach, Ca. 92d47
Applicant: Same
Location: East side of Gothard Street approximately 800 feet .
north of Talbert Avenue.
Request: To establish a contractor' s equipment storage yard
(AR 78-74) and to allow a reduction in the required
6 percent landscaping (CE 78-51) .
o�
Pio 3ne
Page Two
CHRONOLOGY OF EVENTS:
On February 20, 1980, the Orange County Superior Court issued a
writ of mandate in the case of Foss/Poss vs. City of Huntington
Beach. This suit pertained to the City Council ' s denial of Con-
ditional Exception No. 78-51 and Administrative Review No. 78-74.
After hearing arguments from both sides, the Court directed the
City Council to reconsider the subject appeal and review the appli-
cations on their merits and not on the use, which is a permitted one.
December 8, 1978: At a public hearing held by the City Council on
December 8, 1978, the City Council denied the applicant' s appeal of
the Planning Commission' s action and conditions of approval of the
November 7, 1978 Planning Commission meeting (transmittal and minutes
attached) .
November 7, 1978: On November 7, 1978, the Planning Commission over-
turned the Board of Zoning Adjustments' denial of the subject appli-
cations and approved the administrative review and conditional exception
with findings and conditions of approval. (Planning Commission
Minutes of November 7, 1978 are attached. )
DISCUSSION•
The applications were originally heard by the Board of Zoning Adjust-
ments at the September 13, 1978 meeting, where they were denied for
the reasons as outlined in the attached Planning Commission staff
report dated October 17, 1978. The Board of Zoning Adjustments did
not find sufficient exceptional circumstances to justify granting a
conditional exception. The applicant appealed the Board of Zoning
Adjustments ' denial and was heard by the Planning Commission, and
approved with certain conditions imposed on that approval. At the
Planning Commission meeting the applicant- indicated that strict
compliance with the 6 percent landscaping requirement of the Huntington
Beach Ordinance Code. would be an undue hardship on the property due
to its size, 300 feet of frontage, 605 feet of depth, and condition
of the surrounding area. Discussion took place .as to what amount of
landscaping, treatment of masonry wall, present and future improve-
ments required for Metzler Lane and other conditions that should be
required.
It was the consensus of the Commission that: 1) the reduction in the
required landscape percentage was justified; 2) that the width of
the .landscaping area along Gothard Street frontage should be between
15 and 20 feet; 3) some sort of recess in the landscaping area at the
proposed driveway entrance should take place; 4) that the landscaped
area or island should be placed onsite directly behind the gate or
wall opening to shield the bulk of activity being generated; and
5) Metzler Lane improvements should be bonded for as provided for in
the Huntington Beach Ordinance Code and that at such time these im—
provements are required or necessary, additional landscaping would be
required to be provided along Metzler Lane frontage.
The conditions of approval included a total percentage of landscaping
of 4.8 percent, of which a portion; along Metzler Lane, would be
installed at a future date.
Page (Three •
Action on the Administrative Review will be determined by the
Council ' s decision on the Conditional Exception. It is the
applicantts.,.responsibility to prove to the Council that a hard-
ship exists, by showing the following:
1. Exceptional circumstances
2. Necessity to property rights
3. Absence of detriment
4. Good faith
These four standards identified in Section 9832 of the Huntington
Beach Ordinance Code are further defined as follows:
1. Exceptional Circumstance -"That there are exceptional or extra-
ordinary circumstances or conditions applicable to the land,
buildings, or premises involved, or to the intended use of same,
that do not apply generally to the property or class of uses in
the same district. " Staff analysis- of the subject site indicates
that there are no exceptional or extraordinary circumstances to
the subject property. Subject property is a regular shape in
configuration with no major topographical irregularities that
,:.' would deprive the applicant from any of the privileges enjoyed
by the adjacent property owners. The subject site is adjacent
to one improved public street and another unimproved planned
street. The subject property is zoned, designated on the General
Plan as Light Industrial.
2. Necessity to Property Rights -"That such conditional exceptions
are necessary for the preservation and enjoyment of substantial
property rights. " The required 6 percent landscaping is not in
excess of the landscaping requirements for any other commercial
or industrial use in the City. This 3andscaping require-
ment does not distract from the preservation nor the enjoyment of
the applicant' s property rights. All other commercial and indus-
trial uses which have received entitlement from the City subsequent
to the adoption of Article 979 have provided the minimum of 6 percent
landscaping without experiencing undue hardship.
3. Absence of Detriment -"That the granting of such conditional except-
ion will not be materially detrimental to the public health, safety,
and welfare or injurious to the conforming land, property, or im-
provements in the neighborhood of the property for which such con-
ditional exception is sought. " Part of the welfare for the general
community is the requirement for a minimal aesthetically pleasing
atmosphere. Therefore, the City has established certain criteria
for development which will help to assure a certain level of
. aesthetic quality. These criteria include setbacks, height limit-
ations, screening of heavy or unsightly uses, and the requirement
for landscaping. Therefore, the elimination of, or the reduction
of the requirements set up as an overall City standard for land-
scaping could be considered to be detrimental to the public welfare.
Page Four
4. Good Faith: - "That the applicant is willing and able to carry out
the purposes for which the conditional exception is sought; that
he will proceed to do so without unnecessary delay. " The staff
has no reason to believe that the applicant would not act in
good faith and would proceed to do so without unnecessary delay.
Based on .the above discussion; the Department of Development Services
is recommending that the City Council deny Conditional Exception No.
78-51 based on the following findings:
PROPOSED FINDINGS:
1. There are no exceptional or extraordinary circumstances related
to the subject property.that do not apply generally to the property
or class of uses in the same district. The requirement for 6
percent of the total site to be landscaped is a City-wide standard
and has been applied in numerous instances without creating an
undue hardship on other properties in the City. The subject property
is virtually 100 percent usable, and therefore, the 6 percent land-
scaping requirement would not substantially impair the use of the
property.
2. Said conditional exception is not necessary for the preservation
and enjoyment of substantial property rights- on the subject property.
The property owner has full rights to develop and utilize the
subject property in compliance with the provisions of the Ml zoning
district. The 6 percent landscaping requirement is reasonable and
a standard requirement for this industrial zone and all other
industrial and commercial zones within the City. The proposed
equipment storage can still utilize the remaining 94 percent of the
subject property.
3 . The granting- of such a conditional exception will be detrimental
to the public welfare in the neighborhood insofar .as all of the
adjacent properties in the general area and all other commercial
or industrial properties in the City have provided a minimum of
6 percent landscaping, which has established an aesthetic standard
for not only the general area but the entire City. The granting
of this reduction in landscaping could set a precedent in the City
which would reduce this aesthetic standard.
4. There is no reason to assume that the applicant is not- willing and
able to carry out the purposes- for which the conditional exception
is sought without unnecessary delay.
Action on the administrative review will be determined by the Council
decision on the conditional exception. If the conditional exception
is not granted, the applicant' s course of action would be to submit
a revised site plan which complies with all applicable provisions of
the Huntington Beach 'O inance Code including the landscaping require-
ments, to the -Board f Zoning Adjustments for further review and action
by the Board. The ouncil, ' in this case, should deny the administrative
review based on fai. ure to comply with the landscaping requirements,
without' pre`iudi'ce,� o allow filing of a further application with the
Director of Development Services and meeting all applicable code require-
ments. However, if: Council can identify findings of fact to support
Page Five
granting the conditional exception, those facts should be identified
and staff directed to prepare appropriate findings to support granting
Conditional Exception No. 78-51.
If Conditional Exception No. 78-51 is granted, and Administrative Review
No. 78-74 is approved by the Council, the staff is urging the Council
to impose the conditions of approval imposed by the Planning Commission' s
approval of November 7, 1978 and one additional condition pertaining
to a storm drain for the subject property as depicted on 1975 Master
Plan of Storm Drains (see attached memo) . If the conditional exception
is not granted and the applicant wishes to resubmit a revised site
plan to the Board of Zoning Adjustments that will comply with all ap-
plicable provisions of the. Huntington Beach Ordinance Code, the
applicant is entitled to have the administrative review application
granted.
ENVIRONMENTAL STATUS:
Conditional Exception No. 78-51 is a categorical exemption (Section
. 15105, Class V, California Environmental Quality Act, 1970) .
Administrative Review No. 78-74 is covered by Negative Declaration
No. 78-69, . adopted by the Board of Zoning Adjustments on September
13, 1978.
FUNDING SOURCE:
Non Applicable.
ALTERNATIVE COURSE OF ACTION:
1. Identify facts supporting granting of Conditional Exception No.
78-57 and direct staff to prepare appropriate written findings
for the consideration of the Council and determine what con-
ditions should be required.
SUPPORTING INFORMATION:
1. Area Map
2. Findings of Fact and Conclusions of Law received and dated 2/19/80
3. Request for City Council Action dated November 28, 1978
4. Council Minutes of December 8, 1978
5. Planning Commission Minutes of November 7, 1978
6. Board of Zoning Adjustments Minutes of September 13, 1978
7. Memo from George Tindall, City Engineer, dated March 6, 1980
8. Letter of Appeal from:_Applicant received and dated Nov. 17, 1978
Respectfully submitted,
es W. Palin, irector
Development Services
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FOE
CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH
To : James Palin From: George L. Tindall
Director Development Services City Engineer
Subject : CONDITION EXCEPTION Date : March 6, 1980
NUMBER 78-51, AR-78-74
The subject property, owned by Foss-Poss, contains a natural drainage swale. The
1975 Master Plan of Storm Drains, approved by the City Council, indicates that a
storm drain is necessary and is to be constructed in this low area to provide for
adequate drainage. In addition a Master Planned Sewer line is also necessary and
is to be constructed across this property.
Therefore, in accordance with Municipal Code, the development of the subject property
would require construction of the Master Planned Storm Drain and the dedication of a
20 foot easement for the storm drain. The costs involved in installing Master Planned
Storm Drains is reimbursable under -provisions of the ordinance, subject to availability
of funds.
It is recommended that any approval of the subject property contain a condition that
the Master Planned drainage and sewer facilities be constructed, including the dedi-
cation of necessary easements.
GLT:ik
js NSIN r •
2 '� v FEB 19 pY
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4 lI �'ATTOR
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8 SUPERIOR COURT OF CALIFORNIA
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9I
10 i
11 i JAMES D. FOSS and )
CHARLES W . POSS .) ) Case No . 30 91 20 i
Petitioners, ) FI.dDINIGS OF FACT AND
13 I ) CONCLUSIONS OF LAW I
vs . )
14 )
CITY 07 Hi, NTINCTON BEACH, )
15 et al . , )
16 Respondents . )
)
17
18 The above entitled cause came on regularly before the I
I
19I court on October 15 , 1979 , in Department 22 of the above-entitled
i
20 court , before the Honorable Oretta Ferri Sears , Judge of the
i
21l Superior Court presiding, without a jury . William E . Gummerman �I
22 appe,ared for petitioners and Gail Hutton, City Attorney , by
I I
73 liubert C . IanE; ;i;cr , Deputy City Attorney , cippeared i'or re:; on-
24 d0_nts . ff
25 The transcript and record of the Administrative Pro-
26 ctredIngs hav ins; been received into evidence and exar,;ined b,, the
27I court , acid briefs and arguments having been presented , the court
i
I
28 makes the following Findings of Fact and Conclusions •of Carr :
- j
I
1 . I
2 ,� Lhe Court finds, that. :
3
1 . Administrative {Zevie�.a No . 78-711 is a request to I
4 establish a contractor ' s storage ya.rd in a 1411-CD. zone , a use
5 expressly permitted by §9530 ( c ) of the Huntington Beach Ordi-
6 nance Code ;
7 2 . Conditional Exception No . 78-51 is a request pur-
8 suant to Huntington Beach Ordinance Code §9830 for relief from a'
9 code requirement applicable to the property contained i.n Hunt-
10 ington Beach Ordinance Code §9792 . 2 . 2 , imposing a requirement tInatl
i
11 a minimum of six percent ( 6% ) of the net area• of the site be land-
12 �' scaped.
. I I +- 4 n i.
13 I 3 . _T t The Board of Zoning Adjustments of he Clity
14 initially heard the application and denied it on the grounds set ,
15 forth J.n City T7rhibit l . _ On that date the administrative revieih
16 was also denied in view of the denial. of the Conditional l:xcep
17 tion for reduced landscaping. (City Exhibit 1 . )
�.
18 4 . Petitioners .appealed the denials to the Plannir:c
19 Commission, whic.h overruled the Board of Zoning Adjustments at. I
20 I its meeting held November 7 , 1978 , made the necessary findings I
21 pursuant to Huntington. Beach Ordinance Code. 59832 , et seq . , and
22 r;rant;ed the Conditional. Exception subject to various conditions ,
23 as set: f'ort:h more f'ul.ly in petltiorners, ' 1`;xhibit A . The _Planning
24 Commission further overruled the Board of Zoning Adjustments and
I
25 granted petitioners ' application for administrative review .
26 5 . The petitioners then appealed the decision , of the
27 Tanning Commission to the City Council on the grounds that they
I
28 '!"elt some of the conditions of approval were unreasonable �
I
2
I -
r,�� 1 ( l'M Lt-ionet•s Kh UK L. B . AL :its regular meeting hr:l'3 Decem-
2 leer 18, .1.978, the City Council heard We appeal and denied both
3 Conditional Exception No . 78=5.1 and Administrative Review No .
4 78-74 ;
�, II
5 6 . in support of the decii-on , respondents made the
6 findings required by Huntington Beach Ordinance Code 559832 . 1 ,
7 9832 . 2 , 9832 . 3;
8 7 . The decision of the City Council to deny the
9 applications was based , in part , upon a premise expressed by
10 , some members of the City Council that was not a basic working `
i
11 premise, namely , that the property use sought for the property
12 '.:;y the petitioners was not a permitted use . In dolig so , those �.
13 I members of the Council failed to determine the merits of peti-
14 I tioners ' claim for a Conditional Exception .
15
16 I PROPOSED CONCLUSIONS OF LAly] {
17 From the foregoing Findings of Fact , the court makes !
18 the following Conclusions of Law:. i
19 i . Administrative Review No . 78-70 is a request. to j
i
20 establish an exphessly permitted use which is not subject to an
l21 I� unconditional denial .
22 2 . An expressly permitted use may not be denied ;
23 howevc.-.r• , ',I, review may be dQnl ud .1 r the applicant �
I
24 h;r:; not compl.3od with all applicable provis:i.ons of the Huntington
25 Heath 0,:•dinance Code .
26 I ppl.3 . An application for a conditional excepsion ma •
� E y be , I.
27 dr�n:i.ed upon evidence that the findings required by Huntington
28 Beach Ordinance Code 19832 , et seq . , do not exist . I
I
i
;' 3 .
T)I(.. pl. 1 (,w c1c.11 i.r1.1 of tl c;at• Ion CoI Conc(]l.-
1
2 tCtlu . cxcet�tio n was _got.i re ;trl.ct;ed to the merits of petitioners '
3 claims under Huntington Beach Ordlnance Code §9832 , et seq .
4 5 . Petitioners ' appllcation for a Writ of Mandate is
5 � .granted and the City Council is ordered to reconsider its prior. I
6 denial and limit such reconsideration to standards set forth in
7 Huntington Beach Ordinance Code §9832 , et seq . , and other .ap_pli
8 I cable code provisions .
9 LET JUDGIIENT BE ENIIERED ACCORDINGLY.
r �
10 D at.ed
11
12 I ORETTA FERRI SEARS -- -
`S ORETTA FERRI SEARS
13 + Judge of . tne Superior Court
I
14 }. .,
15
16
17
18"
19
20 i
I
21
22 i .
23
24
25
26
27
28
I
4� y �,
9 ro ss/�a Ssl
r=�c .e II
REC JEST FOR CITY COUNCIL ACTION
Submitted by Floyd G. Belsito Department Public Works
Date Prepared August 23 . , 1ff19 Backup Material Attached X� Yes No
Subject S orin nrain anA cAkfflr Fasempnt Through the Foss/Pons Property___
Located E/o Gothard. Street; CC-481
City Administrator's Comments
C.t
Approve as recommended .
CITY CLit 2—
statement of Issue, Recommendation,Analysis, Funding Source,Alternative Actions:
Statement of Issue:
In order to construct the needed storm drain and sewer systems in the
Gothard/Talbert industrial area, condemnation of property for the .storm
drain and sewer easement must be accomplished, because the property owner
will not dedicate the necessary easement.
Recommended Action:
Authorize the City Attorney to start condemnation proceedings for the
storm drain and sewer easements across the Foss/foss property, and authorize
-staff to prepare a reimbursement agreement ..with the affected property owners.
Analysis:
On December 4, 1978, the City Council authorized Hall & Foreman, Inc. ,
(Consultant Engineer) to design the Gothard/Ta.lbert storm drain and
sewer systems The construction drawings were complete and the affected
Property owners were contacted for .the granting of storm drain and sewer .
easements. Easements were. received from two of the affected property
owners, but Mr. Foss and Mr. Poss did not want to commit themselves to
the granting of any easements until their pending litigation with the
City was resolved.
Landowners. in the area are anxious to develop their properties, but
cannot do so until the Foss/Poss easement is obtained. Therefore, we
. recommend that condemnation proceedings be initiated as soon as possible.
This procedure which includes an appraisal, resolution of necessity, and
an order of immediate possession will take approximately four months.
In .the meantime the landowners who wish to. develop their properties can
proceed with administration for the construction of the proposed storm
drain and sewer lines within the City's proposed- alignment. Reinforced
concrete pipe takes at least three months to manufacture and deliver.
Ther•.efore, at the time the City receives an order of immediate possession
the storm drain pipe will be available for instal)ate on by .the developers
Request for Council Action
Storm Drain and Sewer Easement
CC-481
August 23, 1979
Page 2
Since the storm drain system is a part of the City' s master plan, the
cost- of the construction can be credited against the developer'.s . drain-
age fees and any excess construction costs could be `recovered through
a reimbursement agreement with the City. Many storm drains and sewers
have been constructed in this manner in the past.
Alternatives:
(1) Do not proceed with condemnation for an easement through the Foss/
Poss property, but construct parallel sewers and storm drains on
the north and south properties adjacent to the Foss/foss property.
The problem with .this alternative is two fold. First of all, ease-
ments have not been acquired from the A to Z Wrecking Yard property
owners or from Foss/foss. Easements would be needed from both pro-
perties in order to accommodate the storm drain and sewer. Secondly,
because. of . the parallel construction of lines, the project would cost
approximately $70,000 more than the primary alignment.
(2) ' Do not proceed with the condemnation of the easement. This would
prohibit development south of the Foss/Poss property until an ease-
ment is granted.
(3) Authorize the Public Works Department to administer ..the construction
project. Under this alternative the storm drain could not- be built
before this winter because of the required formal bidding. procedure
and following required. council action. Private developers are not
subject to the. restrictions that the City is subject to in advertis-
ing, bidding and awarding a contract.
Funding:.
Costs for .the appraisal and condemnation would be financed with the City's
sewer and Drainage District 9 funds.
As of June 30, 1979, . Drainage District 9 had $580,0.00±.. Setting aside
$100,000 for the Slater storm _drain pump station equipment and $200,000
for the building, and also $110,000 for the Talbert Avenue storm drain,
east of Gothard .Street, which. will be constructed wit# the Talbert AHFP-
project this fall, the drainage district has $170,000- which is sufficient
for the proposed project along and through the Foss/foss property.
FGB:WAP:lw-
__ANNINS _
SECTIONAL DISTRICT • MAP 26 - 5 - 11 • ���
CITY OF -
i HUNTINGTON BEACHA& PROPOSED_ GOT14ARD/
ORANGE COUNTY, CALIFORNIA ITALBERT STORM
USE OF PROPERTY MAP DRAIN - SEWER
ALIGNMENT AND.
I WARNER
LEqAISI E M E IN A" AA,
AVE I '
CF_E I
a
1 L�
- CEDAR AYE I -_ .. � I I �• � ,
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'� EfCIST IA/� -ST `�B�►N��__ ._::::; I
AMO Slows g I' slah4s ff 1
.I I -
`'.F_R i.1 PR��IOQ� 05 0: STORM tDB�►/Iii
4lop SrWa�t_ ►�€�EJIIT
PRO ED SR1AI I�Q. •AMP ----- --
I *TOORAI�I AL16N Mf�1T / '1Y�I�I.i:....
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DTNA R
R 8 /H
_ JL__
7ALBER M AvE
PRAPOS►fD IriALBERT T02t pRA�A�
CITY HUNTINGTON BEACH
INT -DEPARTMENT COMMUNICATION 9
MUNTINGTON BEACH
To Floyd G. Belsito From Paul E. Cook CO,vdeAih
. � �� oNF�
Subject Gothard/Talbert Date rm Drain• Se tomb r, V
�S
CC-481
t .
Considerable discussion has been heXd recently on the subject
matter. For the City Council' s benefit, :the following is a history of
the most recent decisions on drainage within the area shown on the
attached map.
1. During the winter of' 1977-78 the "A to V Wrecking Yard -property
was flooded due to grading of the Foss/Poss property. A remedial
drainage system was constructed on the Foss/Poss. property. How-
ever, litigation for the prior flooding was undertaken by "A to V
naming the City and Foss/Poss at fault in the matter.
.2. On. lb/2/78, the City Council authorized the design of the subject
storm _drain by Hall & Foreman, Inc. This design has, been completed.
3. Last month, the City Council authorized condemnation proceeding
for a _drainage easement across the Foss/Poss property. They also
authorized the preparation of a reimbursement agreement with
Manthei/Buccella whereby. M/B would install the subject storm drain
system in conjunction with the development of their property in
the area. However, M/B in their letter of 9/7/79 said they are
no longer.. interested in installing the drain because of the City
code requirement that only 90% of the total cost is reimbursable
to them. It is their contention that the City should proceed with
the acquisition of easements and condemnation where necessary as
well as letting a contract for construction of the storm drain
system.
Alternatives
I have analyzed. the matter and feel there are many alternatives
for the City as follows:
1. Proceed with- acquisition of easements and construction. of the en-
tire drain from Gothard to. Talbert. I do not favor this alterna
tive because it puts all the burden on the City when the property
owners along Gothard will be the primary benefactors. I feel that
all easements including Foss/Poss should be dedicated at .no cost
to the City' before the City would construct the drain. The total
cost of 'this drain is estimated at $275,000.00.
2. Do not participate in any way with the storm drain system, leaving
it to future developers to install on, a reimbursement basis. I
do not favor this alternative because it indicates bad faith on
the. part of the City who has in the past supported the project by'
acquiring.. some easements and having the storm drain design completed.
In addition, the. City Council has indicated support for light
industrial development in the area.
Memo to Floyd G. Belsito
Sept. 25, 1979
,Page 2
3. Proceed with a contract to install a storm drain from Gothard
easterly to the railroad as shown on the attached map. An ease-
ment for this construction has already been granted. I am in
favor' of this alternative because it will allow approximately 50
acres to develop- at a cost of only $125,000.00. This cost will
be recouped by. the City in a reasona4ly short time through the
payment of drainage fees for these 5.0' acres. This alternative
will not require the condemnation and payment for any other ease-
ment from a private property. owner.
The remainder- of the storm drain system from the north side of
the Foss/Poss property to Talbert Ave. could be installed by a
developer on a reimbursement basis or by the City after all ease-
ments have been granted.
Recommendation
It is my recommendation that .the City Council approve Alternative
No. 3 as described above and authorize staff to complete plan and
specifications for their approval as .soon as possible.
C �
Paul E. Cook
Director of Public Works
PEC: jy
Attach.
SLC,l_•1ONAL DiST FT MAP 26
CITY OF
H UN I G 1 ON 131-ACI
ORANGE COUNTY, CALIFORNIA
1
i USE OF PROPERTY MAP
PORTION:STO OF/�� 1
G/�OTI4A RDl''� L B ERWARNER T
j r -
Hill: :il;A^pll �-1 •_
0.1
. fff (o •-
u
LJ
Li
J ;ij - -- 17
17. 1 : .._AREA 1 IMMEPIATEL'
! ! ;S6NEFI mm& E5Y t
! Pao APSE D STORM-DIs
PROPOSED STORM ORAIlJ i ; { J -
-
; .
FVTUR STORM OQAI I i �.... :;'I` ... :::::: :
Ta LBEA7 AVE
i
i DEFERRED
' AY COUNCIL
CITY OF HUNTINGTON 8EA4H
too INTER-DEPARTMENT COMMUNICATION ; r ......i -I-.? ......................
i
M.na+cTa+Kam
` ..............................................
To F.•::G,. .,Belsito From Bill Patapoff
Subject. othard/Ta.lbert -Storm, Drain Date Sept. 11, 1979
cc-4s1 ;
After, ieviewing the Manthei/Buccella. letter of September 7, 1979
the followim ` BCtton$°;rare recommended:
i i�ctiat�ye�t
The 'trutary area foz the Gothard/Talbert storm drain is .-for the
most part und.'ep oped �nvacant .industrial property. The 'natural drain-
age courser F� 'fi cape d exc4pt .:for the grading of the Foss/Pos' s
property. Becso ��1f,' tthi$- grading the A tq Z Wrecking Yard. building
south of. the t`Po® :,� p property;:was flooded ,two winters ago' As a
result of the. 4%` d3.Qg F6 0: .-Foss constructed .a 24" and 36" diameter
corrugated meta7p pe.;dranage' 'system through their property to remedy
the flooding � Ag.�an .interim-. so.lution and until additional development
in the areas ahwed, this .system should suffice. Therefore. it is
recommended.:'that':as _ a` a` area develo s t � owners be
require to: e_ •cati �emdnts and- construct the necessary :storm drains:
Since Manthei/Buceella•.indicated in their. letter that there is no
incentive for: then io.:.6onstruct- the necessary storm drain system (there-
fore not developing -theYr.:``property) , it is, recommended. that the City
not proceed "with' the 'condemnation for the storm drain and sewer easements
across. the doss%Poss- property. There is -no reason for us to purchase
the easement.at this, time, `because we could require it later as a condi-
tion of development of the Foss/Foss property. Attached is 'a copy of
the Foss/Pose easement appraisal. Furthermore, the reimbursement
agreement with Maiithei/Buccella is not needed as was recommended to the
Council at. the.ir last 'meeting.
An alte -na ; to, the above recommended action is to proceed with
condemnation.. and' purchase the 'storm:.drain and sewer easement through
the Foss/Poss,-: property: Also in order to encourage industrial develop
merit in :the surrounding area,,, instruct the City's engineering staff to
administer.'thb construction-, of' a portion of the Gothard/Talbert storm
drain -and sewer,.. The drainage district presently has enough money to
construct a storm drain along and through the Foss/foss property. . It-
is anticipated that this construction could begin in the spring, 1980.
In regards: to. the 908 maximum .reimbu.rsement stipulation. in .the
. City Ordinance Code, this could be changed to 100% reimbursement by
amending:tfi6 0idinance. Most other public agencies offer a 100% re-
imbursement.
. . . . . . . .
Bi Patapoff
Civil Engineer Associate
WAP:jy
September 7 , 1979
Mr, JFkoyd Be,��ita
City Ads inistrator
City of ROntington Beach
P
. .
Hwatli tow, $each; 92648
Suh, +gt � ' albert,.storm drains
t d
Dear ! r�
We of ,4y ` Che efforts made by you. and the City Council
to S0107 , `` a ge problem with an early project of the Goth-
ard-Talk N drain. However , due to what we understand are
the cone a Chapter 14.48 of your ordinance code imposing
a 90% met ursment we find that we cannot justify enter-
ing into a rei.mbursment agreement with the City. The project is
estimated to cost $253,000. 00 , therefore we would lose $25 , 300 . 00 ,
right off.`the''top•, even though we are only one of the participants
in the project.
If 100% reimbursment were possible we would be willing to en-
ter into an agreement . However if we must lose the 10%, there
is no incentive for us to participate. We urge that you expedite
the project by whatever means are at your disposal and if there
is any way we can help please contact us .
Very Truly Yours ,
Manthei/Buccella Investments
Timothy. M --� -F--
Franklin,<T, 3u.cel la
Jy
• � E__
CEDRIC A. WHITE, JR., M.A.I.
REAL ESTATE APPRAISER
2651 WOODLAND DRIVE ANAHEIM. CALIFORNIA 92801 17141 527-0261
August 31 , 1979
City of Huntington Beach
P. 0. Box 190
Huntington Beach, Calif. 92648
Att: Charles" B. Davis Re.: Proposed 15 ' Easement -
Real 'Property Agent Foss, et al Property
Gothard Street
Dear Mr. Davis :
.Subsequent to our meeting at the Foss, et al property on the
afternoon of August 27, I have made telephone contact with Mr.
Foss . Fie was available at 846-7328. It is his residence , and
he also has his office there.
Accompanying this letter is a copy of the letter I sent to ?1t.
Foss . He didn 't feel that we needed to meet at the property. to
make an inspection. . However, I did leave an opening for future
contact, if that would be his choice.
For .preliminary evaluation purposes, I believe there are two
methods of analysis:
First, the land would have value for •continued incidental
industrial type storage purposes , and the easement .acquisi-
tion would be 50% of the fee value for this limited type of
industrial use.
Second, and subject to review by the City Attorney, I would
estimate the proposed acquisition as 500 of the fee value .
for all "of the industrial uses to which the land is available
and adaptable.
Please note that soil tests and a title report have not been re-
viewed. Both of these could be pertinent in the two evaluations .
And, the area of the easement is an estimate , and is . subject to a
City Engineer 's calculation .
The value conclusions are contained on the. following page , SU!'L"4ARY
OF EVALUATION . I have added a third alternate which requires re-
view by the City Attorney . As to each alternate., there is no
apparent damage -- though some consideration would need to he given
in alternates 1 and 2 , if a railroad spur track could not bu placed
Charles B. Davis
August 31, 1979
Page 2
along or across the 15 ' easement.
Accompanying this letter are the following : SUT1A1ARY OF EVALUATION,
RIGHT OF WAY MAP, PURPOSE OF APPRAISAL and PREMISE SECTION . Other
data and analyses for this preliminary evaluation are retained in
my files.
Very truly yours ,
CAW:dh dric A. White, Jr. , M.A. I
SUMMARY OF EVALUATION
APPROXIMATE CONCLUSIONS
FIRST METHOD
If open storage land only.
$2 .50/� fee x 50% esmt. _ $1 . 25/�.
4650� x $1.25/gi = $5,,813, Say $5 , 800
SECOND METHOD
If industrial land available for all zoned uses .
$4 .50/tfi fee x 50% _ $2 . 50/t
4650t x $.2 . 50/t, _ $11 , 625
THIRD METHOD
If have to dedicate = nominal
4650t, @ nominal = nominal, say $500
•t::i i i t gi: 1
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� { � `1':S`A�sr��� ,�R°t J�rr ���15�x { ' L` �• I
ill vIA
�cP1r��zPti*r r+�` �.•'41 V1' < \ `.�
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AWT
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. �� � ���}�- # 3 t?„`�, tr1� >x Eke-d((r•-� �. (�_ � � 1
try'+Y
, (yi( •�d��.'! �+ +� }}t}, E` \ \ 'tit- '
::.c 3,tffY yy�1�};/ r its 6�9h� - !�{° i �,$3F�f1t f•�fi� v '� (
40. �` 1�;&1i•G�t ` �"�ir.,� V}r.. t�..a'` - - - - (J ', i .
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hh� { - •.} t jfi�� jNl tlr- F t +{ f{.Ll r„ � ,mil-.� ^ ._
�` t S4 'S e r • '.a i
Sit rf!-4 1 ' �� M1•
N '
PURPOSE OF THE APPRAISAL
The purpose of this appraisal is to estimate
the approximate fair market value of property
described .as the proposed 15 ' easement, Foss ,
et al property on Gothard Street, City of Hunt-
ington Beach.
Date of Value: Current Date
The fair market value of the property taken
is the highest. price on the date of valuation
etc. , as. per Section 1263. 320 in Assembly Frill
No. 11 that was effective July 1 , 1976 .
PREMISE SECTION
This appraisal has been based upon the following
assumptions and limiting conditions :
1. That I assume no responsibility for matters
legal in character, nor do I render any opin-
ion as to the title, which is assumed to be
good. All existing liens , easements , leases ,
bonds and other encumbrances have been disre-
garded unless . otherwise specified. The prop-
erty is appraised as though under responsible
.ownership and competent management.
2 . That while information was obtained from sources
felt . to be reliable, it is in no sense guaranteed.
3 . That this is an approximate valuation based upon
a preliminary investigation and analysis , and it
is subject to refinement after additional study .
City of . Huntington Beach
f° 7 P.O. BOX 160 CALIFORNIA 92669
OFFICE OF THE CITY CLERK
January 16, 1979
William E.- Gummerman; Attorney at Law
16152 Beach Boulevard, Suite 279
Huntington Beach, CA 92647
RE: James D. Foss and Charles W. Poss
City Council denial CE 78-51 and AR 78-74
Dear Sir:
Enclosed please find the copies of, the file material on the .above-
mentioned proceedings, as requested pursuant to $. 1094.6 of the
C.C. P.
The City has not as yet adopted a Resolution pursuant to S. 1094.6 (g),
but your request did bring the matter to the attention of the Legal
Department.
A statement in the amount of $7.20 is attached for copying the
material.
Sincerely yours,
Alicia M. Wentworth
City Clerk
AMW
Enc.
T sa
•STATEMENT — IN ACCOUNT WITH
City of Huntington Beach
Huntington Beach, Calif. .7anuary. 16 19 11L
William E. Gummerman, Attorney at Law
16152 Beach Boulevard; Suite 279
Huntington Beach, CA 92647
L J
72 pages @ 10q, each 0.20
Foss & Poss
CE 78-51 and AR 78-74
WILLIAM E. GUMMERMAN
ATTORNEY AT LAW
HUNTINGTON"EXECUTIVE PARK-EAST BUILDING
161S2 BEACH BOULEVARD,SUITE 279
HUNTINGTON BEACH, CALIFORNIA 92547
TELEPHONE (714) 848-1088
January 11, 1979
Office of the City Clerk
City of Huntington Beach
Post Office Box 190
Huntington Beach, California 92648
Re: James D. Foss and Charles W. Poss,
. City Council denial CE No. 78-51 .and AR -No. 78-74
Dear'Ms, Wentworth:
Formal request is hereby made pursuant to ..C.C;P. § .1094.6
(c) that you prepare and send to me the complete record of the pro-
ceedings involving the above entitled matter.
I represent "Messrs. Foss and Poss in these matters, and
we will that -record for the purpose of filing the appropriat.!
petition for writ:,of mandate.
Please don't hesitate o give me a call .if you have any
questions concerning this reques
u s v ry ruly,
ills , unmmerman
. WEG/pb
cc : City Attorney's Office
City of Huntington Beach .
Post Office Box 190
Huntington Beach, CA 92648
Messrs, James D. Foss and Charles W. Poss e
Post .Office Box" 1610
Huntington Beach, CA 92647
K�
City of Huntington Beach
P.O. BOX ISO CALIFORNIA 82648
OFFICE OF THE CITY CLERK
December.29, 1918
Mr. James D. Foss
Mr. Charles W: Poss
P. 0. Box 1610
Huntington Beach,_ California 92647
Gentlemen:
The City Council of the City of.Huntington Beach at its .regular meeting
held Ho'nday, December 18, 1978. denied. CE #78-51 and AR #78-74.
"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 December 18, 1978 to apply to the
courts for judicial review. "
If you have any questions. regarding this matter, please contact our -office -
'536-5226.
Sincerely yours,
Alicia M. Wentworth
City Clerk
AMW:bt
CC: City Attorney
§ 1094.6
• CODEO CIVIL PROCEDURE
rr 1094.h. ('fitn limit for seeking review of administrative determinations: ;
Preparation (if record: Application in local agency]
(a) Judicial review of any decision of a local agency, other than school {
district, as the term local agency is defined in Section 54951 of the
Government Code, or of any commission, board, officer or agent thereof,
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 within 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 provision of any statute,
charter, or rule, for the purposes of this section, the decision is final on the
date it is made. If there is such provision. for reconsideration, the decision is '
final for the purposes of this section upon the expiration of the period
.during which such reconsideration can be sought; provided, that if reconsid-
eration is sought pursuant to any such provision the decision is final for the ;
purposes of this section on the date that reconsideration is rejected.
(c) The. complete record .of the proceedings -shall be prepared by the. local
agency or its'.commissiori; board,.Q ficer, or agent which-made the decision
And shall be delivered to the petitioner within 90 days after he has filed a
written request therefor. The local agency may recover from the petitioner.
its actual costs for. transcribing or otherwise preparing the record. Such
record .shall include -the ,transcript of. the proceedings, all pleadings, all
notices'. and orders, any proposed decision by a hearing officer, the final
decision, all admitted exhibits, all rejected exhibits in the possession of the
heal agency or its commission, board, officer, or agent, all written evidence,
and any other papers in the case;
(d) if the petitioner files_a. request for the record as specified in subdivision
(c) within 10 days after the date the decision becomes final as provided in
subdivision (b), the time within which a petition pursuant to Section 1094.5
may be filed shall be extended to not later than (lie 30th day following the
date on which the record is either personally delivered or mailed to the
petitioner or his attorney of record, if he has one.
(e) As. used. in this section, decision means adjudicatory administrative
decision made, after hearing, suspending, demoting, or dismissing an officer .
or employee,.revoking or denying,an application'for a permit or a license, or
denying an application for any retirement 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 employee 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 allow�ince has been
denied.
Q) This section shall.he applicable in a local agency. only if the 'f;overning
board Ihcreof adopts an ordinance or resolution ivakinb this section applica-
ble. if such ordinance or resolution is adopted, the provisions of this seolon
60 (9 Gv Pror.Cod..]
�SSt
,I
V PROCEDURE § 1006
C.F.I)U R G
CODE OFCI IL i RO('El L RC:
,tinations: shall.prevail over any conflicting provision ill any otherwise applicable law
relating to file subject platter.
Added Slat., 1976 ch 270 § I.
If school Revicw of Selected 1976 California Legislation. A Pacific I.J 247.
' I of the
thereof, § 1095. [Award of damages: Recovery from public entity]
tition for
C'alJur ?d lalforccnlent of Judgments§?,Ciovernntenl Toit liability § 13.
tic', limits
1.In Cencral, cowry of d:unages by an applicant for administra-
Thc gencral provisions of Cock Cie. Prod., live relief• ihc. award of costs it, a prevailing
Wing the §I095, allowill: daimig"s ill"iniilchillius actions, a1plicant in a nianchimus proceeding normally lies
�1(lil for were ntit iinended to pt.0-ail uder the-spcclfi� within the discretion of the court. 'Tripp v Swoap
st:itote, ininnulitics granted to jwhlic entities and public (1976) 17 CM 671, 131 Cal Itp(r 789, 552 P2d
11 oil the cmhlo)ees by (.iu\. C't.,dc; §§818.4, 821.2. State v 749.
Superior Court (1)74) 12 C?d 237, 115 Cal Rpir
'clsloll IS 497. 524 P'_d 12M. S.—in Specific Instances
1. period - In :w .aluunisuali\r nlan,l.uuu< lao,'rrdint•. in
1)amagcs
l'C'()nSid Mill.11M h\' ploh;ltl„11;11\.lear11e1 \\Ito had riiel\ed
1.for the The imm1?1-unity
Ili
p of the:ilic Cann Act, granting notices of icrthum ion Irons dcfend;utt school dis.
irilnunuly to public entities-and employees for
u'1..t hoard of trustees wrsuant In liJ. Code.
Jiserninnary arts in grlirlal (Gov..Code, §§+(20.2,
815.'_• suhd. (li)), and for licensing activities in § I3447, based on a decline in pupil attendance
Ifr IoC'al ;Ind planned reductiuns.iti services, the that court
panicul:u' (Ciuc. Cade. §§ti_I.._,.81#.4,) t:Ikc pn•c•.
decision edence o\cr file protisions of Code Civ. Proc., did not err in awarding costs In the leachers, -even
filed it § I01)5, providing that if a petitioner ill a Illanda- though judynlcnt writ against them, \where they
ctIl1011ef mus action rcco\cn judgnle•nt• he may :its() i'c- Prcv:iiled on file issue whether the hoard had
,,,er ;I:nnugcs agumsl the public entity repre- ordered termination of more employees than nec-
1. 11C11 cssar d a l 15111I r ol• the leachers would have
\e-tet� h•. the officer ag:u:nt uhonl. the artioti.is )'• an
:ngs, all hrougl,t. O'llagan v Homd of Zoning Adjustment been entitled to relief, would have had judgment,
lie fpal (P1714) 38 ('Ak1%2;, 111 Cal Rim >(ll. but for the actions of the hoard in recnlploying
'1 of the Ihcm and rendcitng Iheir IM111un nlco,l. Lewin v
4.('n+tti Hoard of lruslecs (1476) 62 CAM 977. 133 (:al
\Idellce, Under Code Civ. Pine., § I005, goveiuing re- Rpir 385.
'i1lVlslon t
ided in § 1096. Service of the writ
1094.5 2 Cal Jur .,it Adnliilislralke Law §.125.
.'IIICg the
to file
Istralive -
1 Officer -
Iise, or
agency
review
ho has
','•c has
IcIlied:
s hcen
Criiin
,
,,,I I'?Q,hri,r,Cwit-1 61
IN THI
Superior Court
OF
STATE OF CALIFORNIA
In and for the County of Orange
....CITY A.F.MUNTIMOTON...13.EAC .I!Y..CLER.K
PROOF OF PUBLICATION
Pub1-ic.-H-earing...................................
......................................................................................................
..... ..................
..........
r ,AM Fi P 01110GENAMMINMG-5 U
APPEAL TO CONDITIONS OF -
State of California I APPROVAL
County of Orange Ss.
CONM76NAL EXCEPTION'
....Ri r ta...J....Richte- ..........................................................
AN0,1- ft f7
ibetp
That I am and at all times herein mentioned was a citizen of the I elic.heiftfiilwffi"be field OVA00
unc 3�a Of t&1C.r of h"QW&Beach,
United States,over the age of twenty-one years,and that I am not a in the CodhWtha6ber of th`6 VWCen;-
party to,nor interested in the above entitled matter;that I am the I ter,-Huntipiti5h Beech,at the
7:30 P.M.,-or is Mdn themifthr as poss.ii-I
principal clerk of the printer of the
I ble,on Wndaj.,the daY-6,13eceimizi
ber.1978,for 'e, '-.-d
ACM M
an apoeiC*65 Wons -0 M
-Hun tington.-Beach..Ind ep.en dent.Revdew.... osed Y Vu ni
app '0�ion
a newspaper of general circulation,published in the City of I 0.78.51 _W
7 -74 in tra-
five'Review No T847,4 isaaesE to
Hurit ington**Beach.....................................
in an..MI.--
cue i
County of Orange and which newspaper is published for the dis-
78-61 isrequest
sernination of local news and intelligence of a general character, six (6) Vieweritt anpeapp
and which newspaper at all times herein mentioned had and still inatel -hid one
..
'b"ian pin t e an Mil for J
has a bona fide subscription list of paying subscribers,and which ., 1 5'.
.8 Le;u; - e as MAO sub
newspaper has been established,printed and published at regular Got tF;s funa_5
intervals in the said County of Orange for a period exceeding one north "I'TV111 Ve- AIR 0 review
will beN Ati tion lo I A
year; that the notice,of which the annexed is a printed copy,has legalidwesOnquon n Planding
_[Wn.uon[Wn Uon Awn Bon Rn Gon
been published in the regular and entire issue of said newspaper, De A01in en 'Pe_..aona ere M� to
and not in any supplement thereof,on the following dates,to wit:
lattind 'a So—m-'n-g- and I W reas
9 o fMir-
jfrom
Wl st N. -1 NEW,
November 309 1978
.................................................................
(714)
Datgd:N
C
................................................................. HUNTING. JBEAEH.-
Sy:' -ENT H_
W WORT
Pub.'Nov A
.................. Hunt. c 1 #105
I certify(or declare)under penalty of perjury that the foregoing is
true and correct.
Dated at ..............Garden-Grove.....................
Calif h..d No-v b JR 19.7a.....
. ..........
Signature
r /�
Form No.CAF-51377
REQUOT FOR CITY COUNCISACTION
Submitted by :r,1?ames..:W.l Palin . -_ Department Planning
Date Prepared November 28 , 1978 Backup Material Attached ❑X Yes No
Subject APPEAL TO CONDITIONAL EXCEPTION 78-51/ADMINISTRATIVE REVIEW NO. 78-74
Planning Commission approval of a contractor' s equipment yard located on
the east side of Gothard Street 800 feet ± north of Talbert Avenue.
City Administrator's Comments
Approve as recommended.
Statement of Issue, Recommendation, Analysis, Funding Source, Alternative Actions:
STATEMENT OF ISSUE:
Transmitted for consideration is an appeal to the Planning Commission' s
approval of Administrative Review No. 78-74 and Conditional Exception No. 78-51
for the establishment of a contractor' s equipment storage yard.
RECOMMENDATION:
The Planning Commission recommends that the City Council uphold their approval.
of Administrative Review No. 78-74 and Conditional Exception No. 78-51 with
the conditions imposed thereon.
ANALYSIS:
Appellants James D. Foss
Charles W. Poss
P.O. Box 1610
Huntington Beach, CA 92647
Applicant: Same
Location: East side of Gothard Street approximately 800
feet north of Talbert Avenue.
Request: To establish a contractor' s equipment storage
yard (AR 78-74) and to allow a reduction in the
required landscaping (CE 78-51) .
PLANNING COMMISSION ACTION ON NOVEMBER 7 , 1978:
ON MOTION BY FINLEY AND SECOND BY COHEN CONDITIONAL EXCEPTION NO. 78-51
WAS APPROVED WITH THE FOLLOWING FINDINGS AND CONDITIONS, BY THE FOLLOW—
ING VOTE:
P10 V78 �a
C,ity Council- Appeal• •
CE 78-k/AR 78-74
Page 2
FINDINGS:
1. The nature of the use and size of the subject parcel constitute excep-
tional circumstances on the property; for example, distribution of
landscaping in the amount of proportion to the code requirements would
serve no useful purpose in furthering the intent of the Ordinance Code
to provide a pleasant street scene. Furthermore, the imposition of
landscaping in excess of code requirements along the existing and pro-
posed streets for the property complies with the intent of the code
provisions.
2. The requirements for six percent landscaping upon the subject site
constitute an exceptional hardship for the applicant for the afore-
mentioned reasons. Approval of the exception request is necessary for
the preservation of property rights in this instance, as the institu-
tion of landscaping along the street-side property lines as depicted
on the submitted plan is comparable toy or exceeds the amount of land-
scaping normally required for small parcels in like zones.
3. Granting of the conditional exception will not be materially detrimental
to the public health, safety,' and welfare because of the landscaping
treatment proposed within the public view.
CONDITIONS OF APPROVAL:
The revised plan reviewed and dated November 7, 1978 , shall be the approved,
layout, subject to all .of the following conditions:
1. The landscaped area along the Gothard Street frontage shall be at a
width of fifteen (15) feet with a six (6) foot high decorative masonry
wall at 15 foot setback, recessed a minimum of forty. (40) feet at
the proposed driveway.
2. A landscaped island or grouping to be placed at some reasonable dis-
tance in the facility directly in back of the proposed driveway opening
at a width and length to sufficiently screen as much of the onsite
activity from public view as possible.
3. A minimum of a ten (10) foot landscape area shall be provided along the
future Metzler Lane frontage at such time that Metzler Lane is
physically improved to City standards.
4. The proposed six (6) foot high block wall along the Gothard frontage
shall be extended around the future return at its intersection with
Metzler Lane and the curved area within the return shall be fully land-
scaped at the time of construction of the block wall.
5. All landscaped areas shall be provided with an automatic sprinkler sys-
tem and plans for such irrigation and landscaping shall be submitted
to the City Planning Department for review and approval.
6. The proposed driveway from the Gothard Street property line into the
,facility shall be paved with asphalt concrete for a minimum width of
thirty-five (35) feet and to a depth of 100 feet (or to the proposed
�Q) onsite landscaped island) .
City Council ,- Appeal • •
CE 78-'51/AR 78-74
Pace 3
7. A revised plan reflecting all of the above conditions shall be sub-
mitted to the Planning Department for review.
8. The sewer, water, and fire hydrant systems shall be designed to City
standards.
9. The sewage disposal shall be through the City of Huntington Beach
sewage system.
10. The water system shall be through the City of Huntington Beach water
system.
11. The property shall be subject to local drainage assessment district
requirements and fees.
12. All applicable ordinances and codes shall be complied with.
AYES: Higgins, Russell, Stern, Finley, Cohen, Bazil
NOES: None
ABSENT: None
ABSTAIN: Paone
ON MOTION BY FINLEY AND SECOND BY RUSSELL ADMINISTRATIVE REVIEW NO. 78-74
WAS APPROVED SUBJECT TO ALL CONDITIONS IMPOSED UPON CONDITIONAL EXCEPTION
NO. 78-51, BY THE FOLLOWING VOTE:
AYES : Higgins, Russell, Stern, Finley, Cohen, Bazil
NOES: None
ABSENT: None
ABSTAIN: Paone
HISTORY/DISCUSSION:
These applications were originally heard by the Board of Zoning Adjustments
at its September 13, 1978 meeting, where they were denied for the reasons as
outlined in the attached staff report to the Planning Commission dated
October 17, 1978.
The applicant appealed the Board of Zoning Adjustments' denial and was heard
by the Planning Commission at its October 17, 1978 meeting.
The Commission at its October 17 meeting expressed sympathy with the appli-
cant, in that it was felt that the strict compliance with the landscape per-
centage portion of the Ordinance Code would be an undue hardship on the
property due to its size - 300 feet ± in frontage and 605 feet ± in depth.
Discussion took place as to what amount of landscaping, treatment of masonry
wall, present and future improvements required for Metzler Lane, etc. ,
should be required.
It was the consensus of the Commission that: 1) reduction in the required
landscape percentage was justifiable; 2) that the width of the landscape
area along the Gothard Street frontage should be between 15 and 20 feet;
3) that some sort of recess in the landscape area at the proposed driveway
City' Council Appeal •
CE 78-51/AR 7$-74"
Page A .
entrance should take place; 4) that a landscape area or island should
be placed onsite directly behind the gate or wall opening to shield the
bulk of activity being generated; and 5) Metzler Lane street improve-
ments should be bonded for as provided in the Huntington Beach Ordinance
Code and that at such time these are required or necessary to install
additional landscaping would be provided along the Metzler Lane frontage.
The applications were continued until November 7 , 1978, and the staff
was directed to establish conditions and findings for the Commission' s
consideration (see staff report to Commission dated November 7 , 1978) .
These conditions included a total percentage of landscaping of 4 . 8 per-
cent, of which a portion (along Metzler Lane) would be installed at a
future date.
It should be. noted that as of this date a group of adjacent property
owners, some of whorl own "landlocked" parcels, have asked the Department
of Public Works to act as "lead agency" in conducting a financial
feasibility study for the purpose of forming an assessment district.
These owners have deposited with the City monies to cover the full cost
of said study. This proposed assessment district would include the
acquisition of right-of-way for Metzler Lane and construction of full im-
provements including sewer, water, and storm drains.
ENVIRONMENTAL STATUS :
Conditional Exception No. 78-51 is a Categorical Exemption (Section 15105 ,
Class 5, California Environmental Qualitv Act, 19"70) .
Administrative Review NO. 78-74 is covered by Negative Declaration No.
78--69 , adopted by the Board of Zoning Adjustments on September 13, 1978 .
FUNDING:
Not applicable.
SUPPORTING INFORMATION:
l. ' Letter of Appeal
2. Area Map
3. . Staff reports dated Oct. 17, 1978 and Nov. 7, 1978
Planning Commission minutes of Oct. 17 , 1978, and Nov. 7, 1978 .
5. Plot Plan
Respectfully submitted,
am Palin
Acting Planning Director
JWP-CPS:df
�,
f ,
famed D. f oj.
Chazled W. lojd
P.O. Box 1610
Huntington Beach, Ca.1 i foAnia 92647
Novembea 17, 1978 _
:. .
Huntington Beach C.t to Council
P.O. Box 190 _`-'
Huntington Beach, m CaUif om/ i.a 92648 ` :C—
0 r<
Re: 4ppeai .to C.i tV Council ;=
Cond i t i_ona,i Cxcepti.oa No. 78-51
Adnu.n taative Review No. 78-74v;
%,.ope/z4 .located at 17762 Cjothalzd Sticeet
Sentlemen:
We henebg appeal dome of the conditi..ond of appzoval impoded ba .the Huntington
Beach Planning. Commm dj.ioa in, appzoviag Conditional Cxception No. 78-51 and
Admini tAa .Lve 2ev.Lew No. 78-74 to .the Huntington Beach Citg Council.
Condi t i on.a l Cxcept.i.on No. 78-51
Conditional Cxcept.ion No. 78-51 id a Aeque dt to /zeduce the zeg died 6%
.landdcap ng to appltoxtmate bj 1.5% aj a aequiaement to i mue a peAm t for the
con dtlutc ti.on of a con .,zactoa'.d equipment gal d. The C.t to of Huntington Beach
l,I . g Conmi�d-d.ion haj app zoved thij Condit i.onat (Exception dub jest to dome
tiue.lve conditi.ond. Thoje condi ti_ond ate acceptable except the fotiow.tng
which we he2eby appeal toqthehC.i,tg Council.
Condit ion No. 1. Th•i d condition zequi�r.e d a landscaped a/tea of
15 feet to fAoast of a 6-,foot high deco/tati.ve madonluj, wa)-i at a
15-,foot Aetbach. We agree to con�dt�u ct the 6-foot high decoaative
maaonmt t wail, but obiect to the 15-foot j etbach. It .t d our. f ee.Ling
that a 10-toot .lam caped jetback .i j juf ici.ent to accomp,L: h .the
intent of .the Civic D.t dtzict gone, would be corvd.t item with othea
i"tal,lation d on Sothaad St zeet, and uz fact .t d .the exact .lands caged
,detbach that waa olzi.gi,na bt juggeited bg .the %.fanning Depa2tment.
T hi,j waa .incase u ed to 15 feet bcq the l.Canning Commies,j.i.on. A
addition, the d condition zeq -iAeA a aece m ed minir m 40 feet waU.
on both .d.i.de d of the pnopo�ded duvewact. Th i�d condition wa d
p to dumab4 .tmpo ded jo that a tlucch could pu.il into th.vd zece d d ed
area in o�rde z to open the gate. We have j nce decided a gate .t d
.impzacti..cal foe out ope/tation and the gate w,U. be etimi.nated faom
the plans. We, theaefo se, 2eque.dt that the 1zequiAemen t of a
necemed 40-foot wail at both •d.ided of the pzopojed dzivewac4 be
e.Um uzated.
Huntington Beach Ci4 Council Novembez 17, 1978
Page Two
Condition No. 2. Condition No. 2 zegaiAe i a laru'�caped iiJand
o2 grcoupi.ng to be placed at dome d.i,4tance i u i.de the faci l i tg
diaect4 in back of the p2opojed duvewag opening to act ao a
,jc/zeen, of on,4 to acti.v,z tca aom pub Uc view. Th iA zequi�zement
.ti incon di dten t with cu went AequuzementA of. other, would 4e da,Ct
.in an obdt Luc tion and jaf eta hagaad which could contz.i.bute and
Ze du.Lt in pen&donaL in u g and p zopeatg damage. We f ee.L that thiA
condition .i i un zeajonab.le, inefficient, dangezoud and object to
..it aA a zequ Aement.
Condition No. 4. Thzi,4 condition zequihej that .the 6-foot high
eco4ati.ve maoon g waiiL along the S•otha�zd fAontage be extended
around the f utu2e i te"ec t i_on of Met3,Lea Lane and .the exiting
Sothazd Stizeet. Th j w.L. rceduce our ujabte p2opezt4 at a. time
when Meta Lie z Lane .cam not being conAt zucted. T hzii zequi cement
,jhould not be sequeited until such, time that Met,7,LeA Lane ij
actuai4 bu,&U. We obiect to .the zequirzemen t of dedication of
Met3�Lea Lane which .i.4 diicuwjed in mo�ze deter i below.
Condition No. 6. Th i4 condition zequ.if ej a &LZvelwag .into .the
faci.UtV pave w.c th aiphait concAete fog a.minimum width of 35
feet and to a depth of 100 feet. We propoje that 6 .inchej of
bate mateuaL, o.Lied with a cock-chip .jeat iA juf f LcLent to
accomp,UAh .the intent of preventing .the trzaching of diet oiz mud
onto Sothalzd St/zeet. We, therze f ooze, aeque it that thi j condition
be modified accoAdi.ng y-
A ;6�ati.ve'RevLew' No. 78-74
4dm-inijt4a-Lve Review No. 78-74 id a /zequeit foe a pelimit to opeaate a
cont4acto,z',j equipment gaicd at dubiect :location. The Boaizd of Zoning
4djuAtinen has denied thud pem. t becau4e we w.i U not ag2ee to dedicate and
bond a paved eight-of-wag (Metgie2 Lane) .in addition to the .L�cap.ing
Aequin.ement,j 2efe Aed to above. (CC 78-51)
The zequiAernen t of .the Metziea Lane dedication waA appealed to .the %dann.ing
Comm.ii,dioa. The Planning Commv».ion waj advtied brg the C.itcg.Atto.,znec,',j
oface .that .thee did not have .the zight to defeat thij dedication. The
Planning Comm iA it on and the P-Lann ing Depa2tment dealt with th A subject in
.the healing,fb4 dial not .inc ude it a4 an .t temi_ged condition in theist
appltovai. PAe.,junab4 .thee aze taping .the po jit i.on that it ij not within
theta authoAiteg to et theA deag o�z gaant.
.9t id our. pojition .that .the zequtAement of dedication and bonding of this
paved A.ighzt-of--way. .tom uncondti tuti_onaL. The.State of CatZpAni.a Soveznment
Code, Section 65909, paohubitj the zequiA ng of the dedication of .land foe
ang puzpoje not aeajorzab4 .ze.Lated to .the uoe of .the p�zopezt4 foa which
.the vaAiance, bui lL g o z uoe permit ij zequeited. Count cajej have at4o
nequi zed goveanmeat to demorwtAate that jome economic benefice would zejuit
to the p zo pew owne2 aom the nattute of the f o sced dedication.
Hite ing ton Beach City Cowzc i t Novernbe2 17, 1978
Page l h4ee
The dedication cLeaa4 doe-4 not zeiate to the paopojed a4e. o, the plLopeatg.
9ngAej,j and egaejj to the paopent4 Morn Sothaitd .i j rno2e than jatiA, actoAy.
The entia e. azea fought .to be dedicated .ti unimpltoved and, in ,fact, .the
,jtt zee t could not be corrdtiuucted due to the ,fact ,that one-hall= o4 the i t�zeet
(.the north ha if) .i j in an umimpaoved dace guich.
Paulo,jed &,z you z zev i.ew .tA a coAV o, .the t/u.a.L b z Leo paepa2ed by, out
attolmeg which outtinej and juppo4tj oust pojiti.on segaAding thij dedication
and bonding zequiaernemt.
We, theaefone, /teque4t .that .the City, Council gAant the appzovaL o4 .the a4e
pemmit wi thout the dedication and bonding o4 th i j paved zi.ght-o4-waa.
Sinceae.Lg,
�4MS D. FOSS
CHAL6S W. rOSS
haine,j D. f ojj
l a4 tnen
�Df:ggb
CncLo.4u1Le,j
PLANNI G • ZONING • DM 31
o 000
SECTIONAL DISTRICT MAP 26 - 5 - i1 _
E :E N DF WA
CITY OF .,' INC.,
VNFIN.
ADOPTED APRIL II,1960 r IONC NI G
T[NOEDOTO FaiENO TO THCTC[rvT[Rr
CITY COUNCIL ORDINANCE NO. 759 LEGEND:
AMENDED
AMENDED ORD.NO. AMENDED ORD.NO. v—J RESIDENTIAL AGRICULTURAL DISTRICT
HUNTINGTON BEACH o a_'0 A IT rCM-M TWO FAMILY RESIDENCE DISTRICT
COMMUNITY FACILITIES(EDUCATIOMI DISTRICT
.To
ii-i9n ® PRUFESSIONAL
Q LIGHT INDUSTRIAL DISTRICT
_a_m%s�- Ti 2-i-7", MOBILE NOME WSTRICT
j O SINGLE FAMILY RESIDENCE DISTRICT
ORANGE COUNTY, CALIFORNIA = ." 3 9 =N R3 LIMITED MULTIPLE FAMILY RESIDENCE DISTRICT
g3fi C4 HIGHWAY COMMERCIAL 0:5TRICT
LL'AMENDED BY ZONE CASE cx-N COMMUNITY FACILITIES(RECREATIONAL)DISTRICT
,°"63 -cD Clv:c DISTRICT
101,148,172,187,192,202,208,211,212,237,304,312,313 i-eo 7N C-C COMMUNITY FACILITIES(CIVIC)DISTRICT
308,326,339.341,348.356.359,369,371,289.487,504.505,509,66-7,66-13,66-14,66-57,PP 66-3 ---- FRONT TARD SETBACK
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IN
Publish 11/30/78
NOTICE OF PUBLIC HEARING !/
APPEAL TO CONDITIONS OF APPROVAL
O
CONDITIONAL EXCEPTION #78-51 & ADMINISTRATIVE REVIEW #
AND
NEGATIVE DECLARATION #78-89
NOTICE IS HEREBY. GIVSN that a public hearing will be held by the .
City .Council of the City of Huntington Beach, in . the Council
Chamber of the Civic- Center, Huntington Beach, at the hour of
7:30 P.M. , or as .soon thereafter as possible, on Monday
the lath day of December , 1978 for the purpose of
c ons ide r ing an appeal to conditions' -of approval imposed by the Planning Commission
upon its approval of Conditional Exception No. 78-51 and Administrative Review No. 78-74 on
November 7, 1978. Administrative Review No. 78-74 is a request to establish a contractor's
equipment yard in an M1-CD, light manufacturing civic district, while Conditional
Exception No. 78-51 is a request to reduce the required six (6) percent landscaping
to approximately one and one-half (11s) percent .landscaping for the subject yard.
The subject site is located on the east side' of Gothard Street approximately 800 feet north
of Talbert Avenue. Also for review will be Negative Declaration No. 78-89.
A legal description is on file in the Planning Department.
All interested persons are .invited to attend said hearing and
express their opinions for or against said Appeal
Furiher .information may be obtained from the Office of the City
Clerk : 2000 Main Street, Huntington Beach, Calif. 92648 (714) 53675226
DAM 11/20/78 CITY OF H nItINGTON BEACH
By: Alicia M, ' Wentworth
City Clerk
• , aces=.::.-.:':•;�.: .: _ .-;;-;:r;.cs.
.r LL POINT P£N ONLY.=-PRESS FIRMLY f ``
CASH RECEJP�035 40 • 7540 i•:G
• .CITY OF HUNTINGTON BGACH 11/17/70 75*00 TL
P.O.BOX 711
•
HUNTINGTON.BEACH.CALIFORNIA 92648
(714)536.5511'
.CITY TREASURER WARREN G:HALL<'..
DEPT..ISSUING �' �'4 DATE / I
RECEIVED FROM—
ADDRESS- O S x
FOR. -
AMOUNT RECEIVED
• Q � 1
CASH CHECKX
A.B.A.ak
RECEIVED 9 O � •
i
ACCOUNT AMOUNT
o s'
{
t
l .
TOTAL OU
i
No. ISSUING DEPARTMENT
WHITE-CITY ATTORNEY /, CITY OF HUNTINGTON BEACH No.
•BLUE-CITY CLERK
GREEN-CITY ADMINISTRATOR 'C
CANARY-DEPARTMENTAL REQUEST for ORDINANCE or RESOLUTION
Date Request made by Department
INSTRUCTIONS: File request in the City Administrator's Office quickly as possible but not later than noon, one week prior to the Council
Meeting at which it is to be introduced. Print or type facts necessary for City Attorney's use in preparation of ordinance. In a separate
paragraph outline briefly reasons for the request of Council Action.Attach all papers pertinent to the subject.All appropriation requests must
be cleared and approved by the Director of Finance before submitting to City Administrator's Office.
Preparation of an Ordinance or Resolution is hereby requested:
�Lac,S� �an__� Gdre�
Cam• C,
� � i �l
I
0 �
Desired effective date Signed: !I Approved as to availability of funds
66 � Director of Finance
City Attorney— Please prepare and submit printed copies to�his office by:
City Administrator
• C. W. POSE, INC. DETACH AND RETAIN THIS STATEMENT
THE ATTACHED CHECK 15 IN PAYMENT OF ITEMS DESCRIBED BELOW.
I HUNTINGTON BEACH, CALIF. IF NOT CORRECT PLEASE NOTIFY US PROMPTLY. NO RECEIPT DESIRED.
DELUXE FORM TWC-3 V-2
PATE DESCRIPTION AMOUNT
I
I
I 4 �
I V-!Z'
}
LEGAL NOTICE . . .
NOTICE IS HEREBY GIVEN that a public hearing will be held by the
City Council of the City of Huntington Beach, California, for the
purpose of considering an appeal to conditions of approval imposed
by the Planning Commission upon its approval of Conditional Exception
No. 78-51 and Administrative Review No. 78-74 on November 7, 1978.
Administrative Review No. 78-74 is. a request to establish a con-
tractor' s equipment yard in an M1-CD, light manufacturing civic'
district, while Conditional Exception No. 78-51 is a request to
reduce the required six (6) percent landscaping to approximately
one and one-half (1 1/2) percent landscaping for the subject yard.
Also for review will be Negative Declaration No. 78-89.
The subject site is located on the east side of Gothard Street
approximately 800 feet north of Talbert Avenue. A legal description
is on file in the Planning Department.
Said hearing will be held at the hour of 7; 00 p.m. , on December 4 ,
1978 , in the Council Chambers Building of the Civic Center, 2000
Main Street, Huntington Beach, California.
lip
•
NOTICE TO CLERK TO SCHEDULE PUBLIC HEARING
ITEM CONDITIONAL EXCEPTION 78-51/ADMINISTRATIVE REVIEW 78-74
NEGATIVE DECLARATION NO. 78-89
TO: CITY CLERK'S OFFICE DATE: November 20 , 1978
FROM:
PLEASE .SCHEDULE A PUBLIC -HEARING USING THE ATTACHED LEGAL NOTICE FOR THE
4th DAY OF December 1978. .
AP's are attached (Have been sent' to Clerk' s office)
AP's will follow
No AP's
Initiated by:
Planning Commission
Planning Department
Petition
* Appeal X
Other
Adoption of Environmental Status (x) X
YES . NO
Refer to Pat Spencer Planning Department - Extension # 5457
for additional information.
* If appeal, please transmit exact wording to be required in the legal .
AR 78 '78-51
10/3/"1 8 - PC
111-010-2 5 Charles Poss 165-261-20
C. W. Poss, Inc. James D. Foss Jahn J. Stanko
P. O. Box 1610 P. O. Banc 1610 16771 Bolero Lane
Huntington Beach, Cal. 92647 Huntington Beach, Ca. 92647 Huntington Beach, Cal. 92649
111-010-46 Pacific Electric Railroad
Robert Morris 610 Main St.
15892 Overton St. . Los Angeles, Ca. 90014
Fountain Valley, Cal. 92708
111-010-62 111-063-19
rnieodore W. Manthei Robert Contorelli
74565 Dillon Rd. 4310 W. 5th St.
Desert Hot Springs, Cal. Santa Ana, Call. 92703
92240
11.1-010-57 111-065-22 !
Ohevzon U.S.A, Inc. Eleanore M. Richardson et al
Property.Tax Dept 1254 E. 1st St. #7
P. O. Box 7611 Long Beach, Cal. 90802
San Francisco, Cal. 94120
111- .366-1 Ul-481-04
Wilbur E. Metzler Family Hdine Builders, Inc.
11143 S. Budlong Ave. 16168 Beads Blvd.
Los Angeles, Cal. 90044 Suite 150
Huntington Beach, Cal. 92647
066--03 165-261--4
Joseph R. Byrd et al Frank Bucoella .
66 Payne St.. 1866 Rhodes Drive
Elmsford, New York 10523 Costa Mesa, Cal. 92626
111= 165-261-05
August Rol-dfs Un. F. Barry
Clara M. Rohlfs Ray M. Keck
2944 30th St. P.O. Drawer K
San Diego, Cal. 92104 Cotulla, Texas 78014
111-066-13 165-261-21
Richard Haster John C. Large
P. O. Box 370 Eheodore Manthei
Cypress, Cal. 90044 74565.Dillon Rd.
Desert Hot Springs, Cal. 92240
111-066-17 165-261-22
Jerry E. Pazzulla Harris H. Hale et al
Cluster Banc 1d7-20 (no address)
Big Bear Lake, Cal. 92315
I
NOTIC.OF Pit FSLIC REARING
APPEAL TO CONDITIONS(IF
APPROVAL
ON
CONDITIONAL EXCEPTION 1t78-SI
&ADMWISTRATWF REVIEW A 78.74
AND
NFGATIVE DECLARATION#78-89
NOTICE.IS HEREBY GIVEN that a
public hearing will be held by the City
Council of the City of Huntington Beach
In the Council Chamber of the Civic Cen-
ter, Hunungton Reach, at the hour of
7:30 F.M.,or as soon thereafter as posal-
ble,on Monday the 18th doy of Decem-
her,1978,for the purpose of ronsidering
an appeal to conditions of approval im-
posed by the Planning Commission upon
its approval of Conditions] Exception
No.78-51 and Administrative Review No.
78.74 on November 7,1978.Administra-
tive Review No. 78-74 is a request to
establish a mntractnr'n equipment yard
in an MI-CD,light manufacturing civic
district,while Conditional Buwption No.
78.61 is a request to educe the revtuired
sit (6) percent landscaping to approxi-
mately one and one-half fl'n) percent
landscaping for the subject.yard. The
subject site is Located on the east-fide.of
Gothnrd Street approximately Alk) feet
north of Talbert Avenue.Aiw)for review
will he Negative Det:laration No.7h-fi9.A
legal description is on fide in the Planning
Depsrtment..
All interested persons are invited to
attend said hearing and exprees their
opinions for or against said Apfs•al.Fur-
ther information may he obtained from
the Office.of the C,itp Clerk,2000 Main
`Street, Huntington Reach,Calif. 9,2648
(714)630.6226.
Datod:Nov.21),79.
CITY OF
HuN'rINC TON RE,ACII
Hy:Alicia M.WENTWORTH
City Clerk
Pub.Nov.30,1978.
Hunt.Reach Ind.Flee.a tNrO).
OFFICE OF THE CITY CLERK
2000 Main Street
Huntington Beach, California 92648
C�
5�1
- i
City of Huntington Beachv
y M` P.O. BOX 190 CAUFORNIAI-N
9Z6�9
S �r�x - !
; :'. '`-"'t ,., -. OFFICE OF THE CITY CLERK
December 20, 1978
Mr. James D Foss
Mr. Charles W. Foss
P. 0. B.ox. 1610
Huntington Beach, California 92647
Gentlemen:
The City Council of the City of Huntington Beach. at its regular meeti.� ,;
held Monday, December. 18, 1978 denied 1 0078-51
and AR #78-74.
"This is a final decision . You are hereby notified that pursuant. to pro-
visions of Section 1094.6 of the Code of Civil P ocedure of the :State rrf
California you have ninety days' from December 18,E 1978 to apply to the
courts for judicial review."
if you have any questions regarding this matter please contact our off.ir.-e.. -
536 - 5226.
Sincerely yours,
66"
Alicia M. Wentworth
City Clerk_
AMW/js
B (9 4-
r
I
I
I.
I r �
F 4-rr/
1 WILLIAM E. GUMMERMAN
Attorney at Law
2 16152 Beach Boulevard, Suite 279
Huntington Beach, California 92647
3 714/848-1088
4 Attorney for Defendant,
C. W. .POSS
S '
6
7
8 MUNICIPAL COURT OF THE STATE OF CALIFORNIA
9 WEST ORANGE COUNTY JUDICIAL DISTRICT
10
11 THE PEOPLE OF THE STATE OF
CALIFORNIA,
12
Plaintiff:, Case No. 78W6576
13
-vs- TRIAL BRIEF
14
15 C. W. POSS,
16
Defendant. )
)
17 INTRODUCTION
18 The present controversy stems from a disagreement
19 between the -City of Huntington Beach (the city) and the defendant
20 C . W. POSS, INC. (defendant) over what may be constitutionally
21 required of defendant before undertaking operation of a use
22 (contractors storage yard) expressly permitted by Section 9530(c)
23 of the Huntington Beach Ordinance Code.
24 It is defendant's contention that no conditions may be
25 attached pursuant to- Section 9530 since approval there by the
26 Board of Zoning Adjustments can .only be a ministerial act when
27 there are no enumerated standards to -govern the approval of the
28 necessary applications *.and the application relates to an expressly
1 permitted use. However, defendant' s property is also located
2 within the Civic District Suffix Zone (Article -967 of the
3 _Huntington Beach Ordinance Code, -6.9670, et.seq) which is designed t
4 regulate the "orderly harmonious, attractive and aesthetic
5 development of facilities around dgsignated community facilities
6 districts" (Huntington Beach Ordinance Code, 69670) . Pursuant to
7 that section defendant concedes the city may exact conditions for
8 approval of the necessary application. Defendant' s objections to
. 9 the proposed conditions are two fold; (1) the conditions imposed
10 to date such as the construction of a solid concrete wall enclosi g
11 the premises, ' the dedication of a :paved right-of-way to the city
12 and the construction of a paved parking area are not reasonably
13 related to the use of :defendant' s property; . (2) defendant's
14 use will not serve to create the need for :the dedication; and
15 . (3) defendant will not -receive an economic benefit from the
dedication or other improvements.
16 Defendant further objects to the city' s bringing the
17 instant criminal actions on a second level, that of equitable
18 estoppel. The city issued several,.necessary operational permits
19 . to defendant with full knowledge of-defendant's-intended and
20 actual use of the subject property'; At no time prior to their
21 issuance was defendant cautioned that application approval was a
22 condition precedent to commencing construction and operations an
23 expressly permitted use.. Furthermore, and the more significant
24 point with respect to defendant' s estoppel argument, the city
25 never intimated, before any permit was issued, or before any
26 construction or operational use had begun, that extensive conditi ns
27 (such as the dedication of paved right-of-way) would be required
28 before approval was given to defendant' s application. Rather, at
r 30
1 e - -
I the time defendant applied for and was given those various permits
2 the city' s conduct indicated that approval was nothing more than
3 a ministerial act.
4 It was only after defendant objected to the reasonable-
5 ness of the city's requirements that the city threatened criminal
6 prosecution and complained about operation of the use without
7 first obtaining application approval. It thus , appears that the
8 city is attempting nothing more than to use the threat of
9 criminal prosecution to exact unreasonable concessions from
10 defendant as a condition precedent to the use of their property
I1 as expressly permitted. It is therefore defendant's contention
12 that absent the frustration of some important governmental policy
13 that would result from.defendant's:: Use prior to application
14 approval the city should be estopped from complaining ( in the
15 form of these criminal prosecutions) about construction undertake
16 pursuant to the permits previously issued.
17
18 = STATEMENT.`OF THE FACTS
19 Defendant is' the owner of an unimproved parcel of real
20 property located at 17762 GothardStreet, Huntington Beach,
21 California. Such pro erty is situated within the Civic District
22 Suffix Zone. On the subject property defendant intended to
23 construct a contractors storage yard, a use expressly permitted
24 by Section 9530(c) of the Huntington Beach Ordinance Code.
25 In order to commence construction defendant obtained- an
26 electrical permit,' a grading permit, a fire hydrant use permit, a
. . 27 permit to irs tall underground gas ''storage tanks and a permit to
28 tie into the storm drain system. . :At the time the above mentioned
- 3 - �- e
I permits were obtained the city was well aware of the use defendant
2 intended to make of his property both through oral representation
3 to the city' s Planning Department as well as on site inspections
4 made by the city's building inspectors. However, at no time did
S the city, prior to the issuance of.°the permits, condition or even
6 suggest that the commencement of construction was dependant upon
. 7 approval of their application. In. fact, defendant was issued the
8 aforementioned permits even though..they had not completed or had
9 approved the necessary :application;-which' had been previously ob- :
10 tained at a meeting with members 'of` the Plannint Department before
any permits were issued.
11 Afterissuance_ of the permits, defendant, .'to his consid-
. 12 erable expense, commenced construction on the subject property.
13 Included within such construction were the beginnings of a chain
14 link fence surrounding the property. for obvious security reasons.
15 When the city became aware of the construction of the fence they
16 objected claiming a chain link fence was inappropriate alleging
17 that defendant' s use was subject to the standards of Section 9534
18 of the Hunt.nxton_ .Beacli-Drdinanc"o-de. "Uses Subject to Approval
19 of a Conditional Use Permit". Specifically the enumerated
20 standards therein called for the construction of a solid six
21 inch concrete block or,pasonry wall;,with a minimum height of six
22 feet. After defendant .objected on the grounds that Section 9534
23 applied only to "Automobile Storage Yards" the 'city informed
24 defendant that- his property bounded on an undeveloped portion of
25 the -Civic Suffix District and attempted to exact the same condi-
26 tion pursuant to approving any use .subject to the district' s
27 zoning regulations. When defendant objected on the _grounds 'no
28 such standard was enumerated within Section 9674 as a condition
-�� 4 _
I to approval the city began its threats of permit revocation and
2 criminal prosecutions.
3 In a letter dated May 19, 1978, the City informed
4 defendant that they were in violation of Sections 9530 and 9674
S of the Huntington Beach Ordinance Code and pursuant thereto
6 defendant would first. have to obtain approval of an application
7 for design review by the Design Review Board and a use permit fro
8 the Board of Zoning Adjustments prior to the commencement of any
9 use- on the subject property. There was no mention of any
10 conditions to approval.. Defendarit::was requested to file only the
a
11 appropriate applications. On July° 19, 1978, at a meeting between
12 defendants representative' LES BASICH, JOHN O'CONNOR, the Deputy.
13 City Attorney and CHARLES P. SPENCER the assistant Director of
14 The Planning Department defendant was inf¢cned of the following:
15 (1) the City's belie£ that defendant was subject to the enumerate
16 wall requirement _in Section 9534; (2) that a criminal complaint
17 would be filed against them for violation of Sections 9530 and
18 ' 9674 and (3) that defendant should have first gone before the
19 Planning Board for approval even though the intended use was
20 expressly permitted within the M1 zone.
21 On July 27, 1978, the city, by letter,gave defendant
_ 22 notice that its permits for temporary power and a gas pump had
23 been issued in error and that the .city would request the Edison
24 Company to discontinue service until it was determined that
25 defendants use was conforming. Also on July 27, 1978, the city,
26 by letter, cancelled, effective immediately, defendants fire
27 hydrant Use Permit #751. On July. 28, 1978, the city did in fact
28 request the Southern California Edison Company to remove the
3�
I service to the subject property. On'.July 31, 1978, defendant fil d
2 the necessary applications for approval and the use permit.
3 It was not until August. 4, 1978 after the criminal
4 complaints had been filed and defendant had agreed to construct
5 the wall that defendant was informed of the dedication and parkin
6 improvement requirements as further conditions precedent to
7 approval of their applications. On August 8, 1978, at a meeting
- 8 before the Board of Zoning Adjustments,defendant was informed of
9 the following requirements to approval of their use: (1) the
10 Huntington Beach QXditiance C, od §9730.2 and 9730.4 required
11 defendant to dedicate and pave one-half of a public right-of-way
12 along the. north side of the subject property, (2) paved parking
13 lots with a striped % parking designation for every five thousand
14 square feet of property, and (3) . the screening of the property
15 from public view by the erecting _of the concrete fence.
16
17 I
18 UNLESS THE CITY CAN DEMONSTRATE A RESULTANT
FRUSTRATION OF A FUNDAMENTAL GOVERNMENTAL
19 POLICY BY ALLOWING THE DEFENDANT TO CONTINUE
CONSTRUCTION 'PRIOR TO APPLICATION APPROVAL IT
20 SHOULD BE ESTOPPED FROM ASSERTING THE PRESENT
CRIMINAL VIOLATIONS.
21
22 A long linetof cases have held that once an owner
23 acquires a building permit, and in reliance thereon incurs
24 liabilities in good faith, the owner acquires a vested property
25 right entitled to protection against revocation or subsequent
26 changes ' in the zoning laws. Spindler Realty Corp. v. Manning,
27 (1966) 243 Cal. App. 2d 255, 53 CaZ. Rptr. 7; Trans-Oceanic Oil
28 Corp., v. Santa Barbara - (1948) 85 Cal. App. 2d 776, 194 P. 2d 148;
I Kissinger v. City of Los Angeles , (1958) 161 Cal. App. 2d 454,
2 527 P. 2d 10; County of San Diego v. McClurken (1951) 37 Cal.
3 2d 683, 234 P. 2d 972; .Jones v. City of Los Angeles (1930) 211
4 Cal. 304, 295 P.14; Griffin v. County of Marin (1958) 157 Cal.
5 App. 2d 507, 321 P.2d 148.
6 However, in order to come under the protection of a
7 vested rights theory the owner had to demonstrate that the permit
8 were valid when issued. Pettitt v. City of Fresno, (1973) 34 Cal
9 App. 3d 813, 110 Cal. Rptr. 262; Millbrae Assn. v. City of- Millbrae.,
10 (1968) 262 Cal. App. 2d 222, 69 'Cal. Rptr. 251. In the present
11 controversy the city alleges the defendants permits were issued
12 in "error" and therefore of no force and effect. As a consequence
13 thereof, the city revoked some of the permits and instituted the
14 present criminal actions alleging defendants use was non-conforming.
15. Notwithstanding the alleged technical invalidity of
16 defendants permits , it is defendants contention that the Doctrin
17 of Equitable Estoppel may still be applied. Equitable .estoppel,
.18 in the context of zoning or otherwise, is applicable against the
19 government whenever the effect of its invocation would not defeat
20 the effective operation of an important governmental policy
21 adopted to protect the public. Pettitt v. City of Fresno (1973)
22 34 Cal. App. 3d 816, 822, 110 Cal.. Rptr.. 262, 268.
23 The issue is thus presented: when would a fundamental
24 policy, evidenced by a zoning law, be frustrated by application o
25 the doctrine of equitable estoppel..against a municipality asserting
26 the unlawful nature of construction commenced pursuant to an
27 invalid .building permit. It is defendants' contention that 'such
28 a frustration would exist only when . the desire to revoke an
- 7 -
D oo
I existing permit stems from a subsequent change in the zoning laws
2 which would thereby render the existing use a non-conforming use
3 in relation to the new law. Support for this approach may be
4 found in that line of .cases holding the owner was entitled to
S complete construction pursuant to existing permits despite
6. subsequent changes in the zoning laws. _ Dobbins v. Los Angeles,
7 (1904) 195 U. S. 223 25 S. Ct. 18, 49 L. Ed. 169; Trans-Oceanic
8 Oil Corp. v: Santa Barbara (1948) 85 Cal. App. 2d 776, 194 P.
9 2d 148; Jones v. City of Los Angeles (1930) 211 Cal. 304, 295 P.
10
14.
a �
11 The preceding authority illustrates the maximum degree
12 to which the courts have been willing to apply a vested rights
13 approach to building permits. Despite the obvious frustration of
14 a governmental policy (evidenced by the subsequent moving law) th
15 owner was allowed to complete construction in accordance with the
16 prior rather than the 'subsequent zoning law. The instant case is
17 distinguishable in several respects; first, defendants' permits
18 were issued prior to the approval of their application and thus,
19 it is possible to claim the permits are technically invalid,
20 second, there has been no subsequent change in the zoning laws an
21 third, the city attempted to revoke, the permits and prosecute for
22 defendants present use of the premises only after defendant
23 objected to the conditions the city imposed fw approval.
24 The distinction between a valid and invalid permit is
25 a marked one to be sure. It- has the effect of depriving defendant
26 of a vested property right. However, it is not that significant
27 that it should prevent defendant from asserting an equitable
28 estoppel against the city's conduct.
I Without a change in.:the ,zoning law the city's governmen al
2 policy remains unchanged. The existing violations in no way
3 impede or frustrate that. policy. . .zn fact, since the requisite
4 application has been filed there remains only the ministerial act
5 of approval before defendants',- usp.',conforms with the requirements
6 of Section 9530. Defendants non-conformity with respect to
7 Section 9674 raises the question of the conditions the ' city is
8 attempting to force defendant to comply with.
9 The reasonableness and legality of those. conditions is
10 discussed in following arguments`. ' For purposes of discussion
11 �
here their importa.ncelies within the manner in which they were
12 raised and whether it :w' as sufficie.nt . to constitute an estoppel.
_ 13 Again, but for those conditions all that would remain
14 for defendant would be.the ministerial act of application
15 approval. However, it is defendants' contention that the city is
16 eatopped from asserting those conditions as a basis of defendants
17 present non-conforming use. First, the issuance of the permits
18 induced defendant to commence construction originally, Second,
19 the city made no mention of any conditions prior to the issuance
20 of the permits. Third, the city was aware that defendant had
21 , commenced construction pursuant to those permits. Fourth, the
22 city was aware that an application had not been approved prior to
ermits. Fifth, defendants' use is expressly
23 the issuance of the p
24 permitted under Section 9530; and Sixth, the instant criminal
25 complaints are premised on the fact that defendant is operating a
26 use without an approved application, however, prior to defendants
27 objection to the conditions the city imposed upon defendants' use ,
28 the city made no such objection. Thus, it appears that the city is
37
- 9 - e
I not really concerned with the penal violations at all, but rather
2 is using the same .to gain a superior bargaining position over
3 defendant. Such a practice bordsk�a', precariously close to abuse
4 of process and if not " it certainly raises the issue of
S equitable estoppel. '
6 The inherent,dangers of. forced dedications are not new
7 and have been noted before:
8 -A third [danger] is that Judicial surveillance
of dedication requirements may be'leffective and
9 sporadic.. The result would be diminution of
constitutional protection against overextension
10 of the police power, since the cost and delays
inherent in .litigation tend to discourage r&-.'
11 � sistance to 'improper demands and induce
• compliance b the developer. The unlikelihood
12 of legal challenge may, in turn, reinforce ,,-- .
existing incentives - for .local officials to
13 exploit their superior bargaining position by
expanding the practice of imposing dedication
14 conditions to. its maximum feasible extent..'
Alstyne, "Takin or Damage by police ower:
1S the wear v rse Icon emnatio "
44 ; See also Associated Home
16 Builders v 'Citx of Walnut Creek Cal.
pp�. 3d-11299 11439 90 Cal: ptr. 663, 673:
17
18 "But- we- cannot 'eubstriba:-.-to:::the premise-. that the police
19_ power expands;. and -property.:rights''.guaranteed. by the Constitution
20 contract, in proportion to the general fiscal exigencies which
make expropriation attractive." . -.. .
21 II..
22 ONCE ISSUED A BUILDING PERMIT CONSTITUTES A
PROPERTY RIGHT THAT MAY`NOT BE REVOKED WITHOUT
23 DUE PROCESS OF LAW
24 The fact that defendants,' permits were technically
25 issued in error shoul& not be relative to their rights of due
26 process in an- attempted -revocation. This is especially true
27 when defendant acted in good faith both in obtaining the permits,
in
28 commencing construction and/incurring liabilities in reliance
38 .
D 10
-
I thereon.
2 It has :bng been held that the governing body of a
3 municipality acts in a-quasi judicial capacity in determining
4 that a validly issued permit should be revoked and that due process
5 requires notice, a hearing and the. .reception of competent evidenc
6 substantially supporting the finding of revocation. Trans-Oceani
7 Oil Corp. v. City of Santa Barbara (1948) 85 Cal. App. 2d 776,
8 194 P. 2d. .148; City-of San Marino v. Roman Catholic Archbishop of
9 Los Angeles (1960) 180 Cal. App. 2d 6579 4 Cal. Rptr. 547; O'Ha e
10 V. Board of Zoning Adjust. , City of Santa Rosa (1971) 19 Cal. App
11 3d 160, 96 Cal. Rptr. 484. Requiring a technically valid permit
a•
12 before defendant acquires a right of due process would work an
13 unnecessary hardship for many of the same reasons that defendant
14 asserted in his argument that an equitable estoppel should not be
15 barred simply due to the permits technical invalidity.
16 The revocations in both Trans-Oceanic Oil Corp. aWd
17 City of San Marino were premised upon subsequent changes in the
18 zoning laws. In order that the owner be allowed to complete
19 construction in a manner contrary to the subsequently enacted
20 law it was necessary to find a vested right in the owner. And
21 such a right could be found only in conjunction with a validly
22 issued permit. Pettitt v. City of Fresno (1973) 34 Cal. App. 3d
23 813, 110 Cal. Rptr. 262, -Once a vested right was found,the
24 inescapable conclusion was that .due process was required in any
25 attempted revocation.
26 It is defendants' contention that the requirement of
27 a valid permit relates. only to the finding of a vested right, not
28 to traditional notions of due process. Without a subsequent
. 39
- 11 -
I change in -the zoning law as in the instant case, it should not
2 first be necessary. to find a vested right before rights of due
3 process attach. Substantial reliance pursuant to governmental
4 authority should be sufficient.
S Once the permits were issued and thereafter relied upon,
6 defendant acquired more than a mere license Wevog4b1Q at will.
7 Upon issuance, there arises at least a presumption of validity.
8 In accordance with that presumption, the burden is upon the City,
9 through a noticed hearing affording defendants all their procedural
10 rights, to demonstrate. the permits -invalidity through competent
11 evidence.
12 ::.If .not of forddd---•sonde".sort,;.6f limited property :might and
13 corresponding right of due process, the city, through its' own
14 omissions, subjects .others, such as the defendant, to criminal
15 sanctions without an opportunity to defend. The defendant
16 actually iias no such opportunity in the criminal hearing since
17 once the permit has been revoked the zoning violation takes on
18 aspects of strict liability. Surely the lawf'does not contemplate
19 the city be allowed to 'act in such a careless and reckless manner
20 and still have resort ..to the full letter of the criminal process
21 without first giving defendant the -right to some form of prior
22 confrontation.
23 Granting defendants a right of .due process in this
24 situation . should be carefully distinguished from those cases
25 refusing to recognize a vested right in those owners undertaking
.26 construction in willful violation of a subsequently changed zoning
27 ordinance in the hopes. -of acquiring such a right based upon the
28 sole fact they had incurred material expense and liabilities. The
=...12 -. ..
I two critical differences are, first, there has been no subsequent
2 change in the zoning .laws and second, the defendant acted in good
3 faith both in obtainipg. the permits and in acting. upon the same
4 in commencing construction.
6
7
8
9
10
11
12
13
14
1S
16
17
18
19
20
21
22
23
24
25
26
27
28
- -12a -
D -
1 III
2 THE CONDITIONS THE CITY .IS ATTEMPTING TO EXACT
PURSUANT TO SECTION 9530 ARE AN ABUSE OF
3 DISCRETION SINCE THERE ARE NO ENUMERATED STANDARDS
TO CONTROL SUCH DISCRETION
4
5 Section 953.0 contains no standards whatsoever to govern
6 _ the issuance of permits. And under that section a contractor's
7 storage yard is expressly permitted. After the application has
. 8 . been filed,approval should be nothing more than a ministerial act
9 To allow the city to impose conditions to defendants use pursuant
10 to that section would seem to constitute a clear abuse of
11 discretion. In Anderson v. City Council (1964) 229 Cal. App. 2d
12 79, 40 Cal. Rptr. 41 the court stated:
13 ". . .where the legal requirements for the
issuance of a building permit have been
14 complied with the issuance of the permit
becomes a ministerial act the performance of
13 which may be compelled by the mandate of the
Court. 229 Cal. App. 2d at 88; See also
16 McCombs v. Larson (1959) 176 Cal. App. 2d
1U5,—I�7-10T,=al. .Rptr. 140; Munns v.
17 Stenman (1957) 152 Cal. App. 2d 34T,,-551-
32 9 314 P. 2d 67. "
18
19 The cases are legion in- upholding standards for the
20 issuance of building permits couched in general health, 'safety or
21 welfare terms against the charge that they confer unbridled
22 discretion on the administrative body or are unconstitutionally
23 . vague. CEEED v. California Coastal Zone Conservation Com'n (1974
24 43 Cal. App. 3d 3062 3262 118 Cal. Rptr. 315, 329; City & County
25 of S. F. v. Superior Court (1959) 53 Cal. 2d 236, 250, 1 Cal.. Rptr.
26 158, 347 P. 2d 294; Garavatti v. Fairfax Planning Comm. (1971)
27 22 Cal. App. 3d 145, 150, 99 Cal.. Rptr. 260; Staddard v. Edelman
28 (1970) 4 Cal. App. 3d 544., 5482 84 Cal. Rptr. 443. However, a
Q �) � . - 13 -
I general health and welfare limitation is the limit to which the
2 courts will go. Initially it was thought that such a standard wag
3 too vague since the power to discriminate was nowhere curtailed.
4 In fact, such a standard was often identical to the standards
S which governed the municipal councils in exacting such ordinances
6 in the first instance. Thus, the power delegated to the planning
7 commissions was no less than that conferred on municipal councils
8 by the Government Code. See People v. Perez (1963) 214 Cal. App.
9 2d Supp. 881, 29 Cal. Rptr. 781; Redwood City Co. of Jehovah's
10 Witnesses v. City of Menlo Park '(1959) 167 Cal. App. 2d 686, 335
11 P. 2d 195.
12 Section 9530 goes beyond the limit of acceptable
13 discretion. Without even a general welfare limitation the
14 ordinance falls within the general rule that "a legislature's
1S. ' delegation of unbridled discretion 'to an administrative agency is
16 invalid, and thus to _avoid such a result it is necessary that
17 the delegating statute establish an ascertainable standard to
18 guide the_ administrative body. " Stoddard v. Edelman (1970) 4 Cal
19 App. 3d 544, 548, 84 Cal. Rptr. 443 (upholding a general welfare
20 standard) ; State Board v. Thrift-D-Lux Cleaners, Inc. (1953) 40
21 Cal. 2d 4369 4482 254 P. 2d 29; Micheltree v. City�-of Los Angeles
22 (1971) 17 Cal. App. 3d 791, 795, 95 Cal. Rptr. 76; 78.
23 Section 9530 reads in its entirety as follows:
24 "Uses Permitted. The .following uses and :.
regulations s all be permitted in the M1,
25 'Light Industrial District, ' subject to
26 approval of .an administrative review appli-
cation by the Board of Zoning Adjustments."
27 There are no enumerated standards within the Article
(953) contained incpction 9530. Applications for administrative
�-
I Review are covered by Article 981 (Board of Zoning Adjustments) o
2 Chapter 98 (Administration) . Section 9811.6 states applications
3 for administrative review: "may be approved, conditionally
4 approved or denied by the Board". However, there are no standard
5 or criteria to limit the discretion of the Board. Furthermore,
6 upon reading the article in its entirety it appears that an
7 - approval of an application for administrative review is nothing
8 more than a ministerial act when contrasted with the specific
9 procedures enumerated therein relating to applications for
10 Conditional Exceptions, Plot Plan Amendments, Use Permits. and
11 Divisions of land. , Vor each such application there is provision
12 for a noticed hearing and appellate procedure. There is no such
13 requirement for an Application for. Administrative Review.
14 Illustrative of the ministerial affects of defendants' applicatio
15 is the required filiiig. fee in relation to other applications.
16 For all other applications the fee is seventy five ($75.00)
17 dollars, for applications for Administrative Review the fee is
18 but ten ($10.00) dollars.
19 Upon reading the code sections as a whole, it becomes
20 apparent that the approval of an application pursuant to Section
21 9530 is nothing more than a ministerial function. It does not
22 purport to grant to the' Board of Zoning Adjustments the discretio
23 the city is attempting - to exert upon defendant.
24
25
26
27
28
15 -
- . - - _.. . .......,.._�.�
I IV
2 THE CONDITIONS IMPOSED PURSUANT TO SECTIONS
9674, 9730.2 AND 9730.4 ARE UNREASONABLE
3 AND CONTRARY TO GOVERNMENT CODE SECTION 65909
4 The criteria for approval of -an .application subject to
5 Section 9674 are set out in Section 9853(a)-(e) . In the operatiodl
6 of an expressly permitted use all the criteria of subsections (a)
7 through (e) are inexplicably met. There remains only the questio
8 whether the city can condition approval upon the dedication of a
9 paved right-of-way is marked on their master plan.-
-10 Section 9730.2 reads in its pertinent parts :
11 "RIGHTS-OF-WAY DEDICATION REQUIRED. Prior to
• issuance of a building permit, or prior to the
12 use of land for any purpose, the highway, street
or alley right-of-way shall be dedicated to or
13 vested in the [city j. . . "
14 First, it should be noted there is no presently existin
15 street to be dedicated. The street in question exists only on
16 the city's master plan. Furthermore, the area to be dedicated
17 ' lies within a totally unimproved section of the Suffix District.
18 The same section that initially subjected defendant to the
19 district's zoning regulations in the first instance. The area is
20 an unimproved dry gulch.
21 Pursuant to Section 9730.4 the city seeks to justify
22 its demand for the dedication of an improved street. That section
23 reads in part:
24 "USE ABUTTING HIGHWAY,. STREET OR ALLEY.
INSTALLATION OF IMPROVEMENTS. (a) No
25 certificate of occupancy shall be issued by
26 the Department of Building and Community
Development until the abutting highway, street
27 or alley right-of-way has been improved to the
center line of such right-of-way. Said improve-
ments shall. include curbs, gutters, sidewalks,
paving, street trees, street lights, street L
16 -
1 signs, street drainage and sewer and water main
extensions in full compliance with the City of
2 Huntinfiton Beach street standards and require-
ments.
3
4 Compulsory dedications have been upheld against the
5 attack that they are taking without just compensation. Associate
6 Home Builders v. City of Walnut Creek (1971) 4 Cal. 3d 633, 484 P
7 2d 606, 94 Cal. Rptr. .630; Ayres v. City Council of Los Angeles
8 (1949) 34 Cal. 2d 319 207 P. 2d 1. Although both decisions
9 involved conditions imposed upon a "subdivision plan, forced
10 dedications have been upheld in the private sector as .well.
s
11 Bringle v. . Board of Supervisors .(1960) 54 Cal. 2d 86, 351 .P. 2d..
12 765, 4 Cal. Rptr. 493; Scrutton v. County :of Sacramento_ (1969)
13 275 Cal. App. 2d 412, 79 Cal. Rptr. 872; Mid-Way Cabinet Fixture
14 Mfg. v. County of San Joaquin (1967) 257 Cal. App. 2d 181, 65
i
15 Cal. Rptr. 37; The approach taken in either case is generally
16 similar. The Courts, seeking to establish a standard of
17 reasonableness for the .exactions imposed, balance the public's nee
18 against the property owner's detriment.
19 The cases are in total agreement that the governmental
I
20 entity compelling the exactions must show at least a "reasonable I
21 relationship" between those exactions and the needs generated by
22 the owners proposed use of his property. Bringle v. Board of
23 Supervisors (1960) 54 Cal. 2d 86, 89 351 P. 2d' 765, 767, 4 Cal.
24 Rptr. 493, 495; Kelber v. City of Upland (1957) 155 Cal. App. 2d
25 631 318 P. 2d 561; Mid-Way Cabinet Fixture Mfg. v. County of -San j
26 Joaquin (1967) 257 Cal. App. 2d 181, 65 Cal. Rptr. 37; Scrutton v
27 County of Sacramento (1969) 275 Cal. App. 2d 412, 421-22, 79 Cal.
28 Rptr. 872, 879-80. This approach is in conformity with the
- 17 -
1
I Government Code, Section 65909 which prohibits "(1) the dedicatio
2 of land for any purpose not reasonably related to the use of the
3 property for which the variance, building or use permit is re-
4 quested. " A more stringent standard was adopted in Sommers v.
5 City of Los Angeles (1967) 254 Cal. App. 2d 605, 62 Cal. Rptr. 52
6 where the court required the government to also demonstrate that
7 some economic benefit would result to the property owner from
8 the nature of the forced dedication.
9
10 A. THE REASONABLE RELATIONSHIP OF THE
11 REQUIRED DEDICATION
a
12 Ingress and egress for defendants-..use is more than
13 satisfied by its access to Gothard Street. The city has made no
14 attempt to demonstrate that the dedication will be reaftnably
15 related to the use of defendant's property. In fact, it cannot. si ce
16 the area sought to be dedicated is totally unimproved. Thus, the
17 required dedication is contrary to the mandate of California
18 Government Code, 565909(1) . Furthermore, the city has not
19 demonstrated that defendants use of the subject property will
20 - create a need, present or future, for the dedication.
21 In Mid-Way Cabinet the owner sought a building permit
22 from the county to enlarge its cabinet shop. As a condition
23 precedent to granting the permit, the county required Mid-Way to
24 convey, without compensation, certain access rights and land for
25 a "return road" to a future expressway. These requirements were
26 based upon evidence presented by the county purporting to show
27 increased traffic burdens on streets fronting the plaintiff's
28 property. Examining this evidence the Court of Appeal found:
47
18
•
I "Not the slightest hint that there .would be
an appreciable increase in traffic, _. On the
2 contrary., other than an inconsequential in-
crease of truck deliveries from a possibly
3 expanded cabinet shop output there will be
no effect at all. Mid-Way's business is not
4 retail. 257 Cal. App. 2d at 185, 65 Cal.
Rptr. at 39."
5
6 The Court went further, quoting a Supreme Court opinion
7 by Justice Holmes, Pennsylvania Coal Co. v. Mahon (1922) 260
8 U: S� 393, 415, 43 S. Ct. 158, 1609 67 L. Ed. 322, 326, as
9 follows:
10 'We are in danger of forgetting that a :strong
public desire to improve the public conditions
11- is not enough to warrant achieving the desire
a. by a shorter cut than the constitutional way
12 of paying for the change . .257 Cal. App. 2d
at 187, 65 Cal. Rptr. at 41.
13
14 The court made specific note that it appeared as
15 though the "planning commission was attempting to avoid the
16 constitutional guarantee of payment of just compensation via the
17 method of exacting "conditionsY to the granting of a use permit
18 arbitrarily inspired and that in doing so it had exceeded its
19 powers. " 257 Cal. App. 2d at 189, 65 Cal. Rptr at 42. Finally,
20 after recognizing that there was no unrestrained right to impose
21 conditions the court noted:
22 Justification of conditions depends upon their
being some real relationshipbetween the thing
23 wanted y the landowner trom government and the
quid pro quo- exacted by government therefore. '
24 257 Cal. App. 2d at 192, 65 Cal. Rptr. at 44
(emphasis added)
25
26 In Scrutton v. County of Sacramento (1969) 275 Cal, App
27 2d 412, 79 Cal. Rptr. 872, the plaintiff property owner sought to
28 have her property rezoned from agriculture to multiple family
D -ae� - .19 -
I residential use 'for the purpose ob:developing apartment units.
21' The planning commission conditionejd approval; on the dedication o
3 certain land to widen •;.=etreets abutting her property and improve-
4 them at her own expense including- avement sidewalks curbs and
� 8i,p > >
5 gutters, _ The Court cited a standa;id of reasonableness related to
6 the proposed use. Scrutton v. Couhty of - Sacramento, supra, at
7 422, 79 Cal. Rptr. at =880.
8 There are decisions upholding forced dedications without
9 departing from the standard of reasonableness reported herein.
.10 See Sommers v. City of: Los Angeles;" (1967) 254 Cal. App. 2d 605,
11 62 Cal. Rptr. 523; Southern Pacific Co. v. City of Los Angeles
12 (1966) 242 Cal. App. 2d 38, 51 CaI'4_ Rptr. 197. The city has
13 failed to meet its burden of justification. The instant criminal
14 complaints are nothing more than al.vailed attempt to force
15 compliance with the ci, s unreasonable demands to .improve the
16 Suffix District. Evidence of the.:Oroposition that the proposed
17 dedication bears no' relationship to. defendants use of the subject
.18 property can be found - nthe fact t gat the origin of the right-of-
way requirement can be found on the' city's master plan which was
20 enacted before defendant commenced,;his use. See 13 Hastings L.J.
21 401, 403. Thus, without more,the.;fity has demonstrated only the
22 assertion of naked and.-.arbitrary power.
23 B. ALTHOUGH .:REASONABLE :OiN THEIR FACE THE
REGULATIONS ARE UNREASONABLE- AS APPLIED
24 BY THE CITY.
25 The regulations in question are on their face the bare
26 minimum required by the due proce:os clause. However, there is a
27 second level of due process consisting of their administration
28 which is also the subject of judicial review. Defendant' s
20
• , ,l � T
a
i
I preceeding arguments addressed the vagueness of the regulations
2 and the reasonableness of the conditions imposed by the city
3 before they would approve defendant's application. The argument
4 presented here is that the reasonableness of the statute• can .be
5 measured by the actions of the city' s officials in its administra
6 tion and if those actions are found to be unreasonable, then
7 the statute must either be declared void or given a narrowing
8 - construction.
9 It is a fundamental rule`: of law that a statute valid
10 on its face may be unconstitutionally applied. Brock v. Superior
11 Court (1939) 12 C.2d 605, 86 P.2d. 805; People v. Gordon (1951)
.42 105 C.A.2d- 711, 234 :P.2d 2870- That issue is usually raised in
13 an equal protection context. Defendant seeks to make analogy to
14 the same argument with respect to .demonstrating that the city's
15 administration of a relatively vague statute in an unreasonable
16. fashion renders the actions taken ,pursuant to such statute void.
17 See People v. Amdur (1954) 123 C.A.2d Supp. 951, 964, 267 P.2
18 445.
19 Defendant does not argue'-that the city may not exact
20 reasonable conditions'.to the operation and use of its property
21 within the Suffix District. Objetion is made not only to the
22 reasonableness of the, conditions .*posed as they relate to de-
23 fendant's property (see argument,"IV; Government Code, §65909)
24 but to the reasonableness of the entire statutory scheme surround
25 ing the administration of the Suffix District. The 'Suffix Dis-
26 trict zone was enacted primarily for aesthetic purposes. How-
..
27 ever, against that backdrop the city has attempted to implement,
28 ,�
at defendant's expense, the city's Master Plan. In order to
ID, e,
I further generate the development and realization of such plan,
2 the city has enacted the dedication requirements in sections
3 9730.2 and 9730.4. These sections have no relationship whatever
4 either to defendant's property onto the Suffix District. They
5 are nothing more than administrative tools for the implementation .
6 of the city's Master Plan. Powerl'.used in this fashion is not a
7 mere regulation within the province of the police power. It is
8 unreasonable to a degree that ,justifies a conclusion that it
9 constitutes a taking without just compensation. If the city
10 wishes to improve the City of Huntington Beach, in accordance
11 with the Master Plan,-. let it pay `its own way.
. 12 The requirements of reasonableness, both in the conditio s
13 exacted in their relationship to the property and in the admin-
14 istration of the statutory schemew.are the final and vital dis-
15 tinctions between the police power and the "taking clause" of
16 the constitution. To ignore than distinction is to abrogate
17 its constitutional guarante
18
19
20 Attorney foroefendant
21
22
23
24
25
26
27
28
22 - ���