HomeMy WebLinkAboutCode Amendment 77-5 - Negative Declaration 77-52 - Ordinance O C,-4-
f idav®t of Pubfication
State of California
County of Orange ss
City of Huntington Beach
George Farquhar, being duly sworn on oath, says: That he is a
citizen of the United States, over the age of twenty-one years.
That he is the printer and publisher of the Huntington Beach
News, a weekly newspaper of general circulation printed and pub- I
lished in Huntington Beach, California and circulated in the said
County of Orange and elsewhere and published for the dissemination
of local and other news of a general character, and has a bona fide
subscription list of paying subscribers, and said paper has been ---_
established, printed and published in the State of California, and 'vblished Huntington Beach News, May
County of Orange, for at least one year next before the publication EIs 1977..
of the first insertion of this notice; and the said newspaper is not NOTICE OF PUBLIC HEARING
7-5
devoted to the interest of, or published for the entertainment of any code Amendment'No
& Negative Declaration No. 77-52
particular class, profession, trade, calling, race or denomination, or any number thereof. ;iOTbCE I5 HEREBY GIVEN .that a public
e,aring'•w•II;be yheid by the City Council
The Huntington Beach New was adjudicated a legal newspaper )f the city, off Huntington Beach, in the
of general circulation by Judge G. K. Scovel in the Superior Court gouncil; Chamber. of the Civic center,
of Orange County, California August 27th, 1937 by order No. A-5931. r untrngton` Beac16, at the hour of.;7:30
P.M., or as soon thereafter as possible,
an Monday the.6th day of June, 1977, for
That the CODE AMENDMENT 77-5 & the purpose of considering Coda Amend-
ment No. 77-5, initiated by the Planning
Department, establishing .the qua1i•fied
NEGATIVE ➢ECLARATION NO 77.-52 classification change of lone. Such zone
ing designation would enable a procedure
of which the annexed is a printed copy, was published in said news- Por imposing conditions upon property
under consideration 'for a change of)
zone where it is deemed that land use
r at least 011f? issue controls beyond the scope of exist ng
Pape regulatory pt,ov,isi6ns are necessary. The,
Negative Declaration addresses the en-
vironmental effects of the proposed or-
commencing from the 26th day of May dinarce in accordance with the California;.
Environmental Qbality Act. A copy of ji
said ordinance and Negative Declara-
19-77 and ending on the 26thday of May tion is on file in the Planning Depart-
ment Office.
All interested persons are invited to
iattena said hearing and express theirs,
19��, both days inclusive, and as often during said period and opinions for or against said Cade Amend-
times of.publication as said paper was regularly issued, and in the ment and Negative Declaration.
regular and entire issue of said pewspaper,proper, and not in a Further information may be, obtained
supplement, and said notice was published therein on the following j from the Office of the City Clerk. (714),,
dates, to-wit: i 536-5226.
bATED: May 20, 1977,
May 26, 197(r� CITY'OF HUNTINGTON BEACH '
By: Alicia M. Wentworth
-_ City Clerk
Publisher
Subscribed and sworn to before me this 27th day of
May , 19 77
Notary Public
Orange County, California
,---------------------------------
E a. , THOMAS D. WYLLIE
Notary Public-California
Orange County o i
My Commission Expires i /
September 12, 1978.
--
b. Will any of this wildlife be displaced or affected by the proposed
project?
If so, how? � —
c. Does any portion of the project abut or encroach on beaches, estuaries,
bays, tidelands, or inland water areas?
If so, describe:
N/A
Describe how the project will affect any body of water.
N/A
d. . Indicate the location and area (in acres or square feet) and type of
plant life to be removed as a result of the project. Include number, .
type, and size of trees to be removed.
N/A
e. Biota matrix:
TYPE EXTENT
Flora N/A N/A
Fauna
N/A N/A
3.2 Land form:
a. Is the property presently graded? N/A
b. What is the range and direction of slope of subject property as it now
exists? N/A
C. How much grading is proposed? N/A
(Gross cubic yards)
d. How much land is to be graded? N/A
(Acres)
e. What will be the maximum height and grade of cut. or fill after grading is
completed? N/A
f. Is the surrounding area graded? N/A If so, how will it affect
subject property?
i I
3.2 Land Form (cont. )
g. During construction of the project, what efforts are being taklen to min-
imize erosion or siltation of the property?
N/A
3.3 Drainage and flood control:
a. Please describe specifically. the volume of drainage and how it will be
accommodated:
N/A
b. To what extent will the project be located within a flood hazard area?
Please describe . (U.S. Army Corps of Engineers Standard Project Flood.)
N/A
I
I
3.4 Air Quality:
I
a. I£ project is industrial, describe and list air pollution sources and
quantity and types of pollutants emitted as a result of the project.
N/A
b. List any. Air Pollution Control District equipment required.
N/A
C. If project is highway improvements, list existing and estimated traffic
projection for 10 years in future.
j
N/A
3.5 Noise:
i
a. Describe any adjacent offsite noise sources (i.e. , airports, lindustry,
freeways) .
N/A
b. what noise will be produced by the project? If available, please give
noise levels in decibel measurement and typical time distribution when
noise will be produced.
N/A
c. , How will noise produced by project compare with existing noise levels?
I
N/A
3.6 Water:
a. If project will not require :installation or replacement of new water
mains, check here X and omit sections b through f..
b. Attach a map showing the project, size and location of lines.
C. If new water mains are to be constructed, indicate length and size
(diameter) of new mains: Length
Size
d. What is the area in acres and the population to be served by the new
mains?
Indicate the approximate service area on a map.
e. If new mains are replacing existing mains, give length and size of ex-
isting mains:
Length
Size
f. Please estimate the daily volume in gallons required to serve the project.
3.7 Sewer:
a. If project will not require installation or replacement of new sewer mains.
check here _x and omit sections b and c.
b. Attach a map showing the project, size and location of lines.
C. Discuss the capacity required for the project and how this relates to
existing effluent volumes within the system.
3.8 Utility Lines:
a. Indicate length and type of new offsite transmission and distribution
facilities required to serve project.
N/A
b. Do any overhead electrical facilities require relocation? _ If so,
please describe facilities.
N/A
c. Do existing lines have to be increased in number or size for project?
If so, please describe how.
N/A
-7-
3_9 Education:
For residential projects, note primary and secondary school. clistrict-s:
Primary: N/A
Secondary N/A
3. 10 Population Displacement:
a. Will any residential occupants be displaced by the project activities?NI/A
If not, do not answer question (b) .
b. What is the total number of residents to be displaced? N/A
3.11 Demolition:.
a. Will any improvements be demolished or removed by the project? NZA
If so, answer questions b through d.
b. Describe briefly the type of buildings or improvements to be demolished
by the project.
N/A
C. List approximate volume of exported material.
N/A
d. Indicate the location and the distance to the site where exported material
will be dumped.
N/A
4.0 Mitigating Measures:
4.1 Are there measures included in the project which may conserve resources
(Electricity, gas, water or wildlife)? Please describe.
Possibly imposition of conditions upon a change of zone for
conservation of resources could occur.
4.2 Describe facilities designed into the project that are proposed to minimize
erosion or siltation control on subject property.
N/A
4. 3 Describe types of building materials and/or construction methods for.the.
project that are designed to minimize the effects caused by flooding, if pro-
ject is located within flood hazard area.
N/A
4.4 Briefly describe what efforts are being proposed to minimize the short-term
impacts caused by construction.
N/A
-8- ,
r
4.5 Describe measures proposed in the design of the project to reduce noise
pollution to persons occupying project.
N/A
4.6 Describe measures proposed in the design of the project to reduce noise
pollution to persons outside of the project which is caused by noise gener-
ated by the project.
N/A
• 4.7 Describe how the design of the project (architectural treatment and land-
scaping) has been coordinated with design of the existing community to
minimize visual effect.
N/A
4.8 Describe measures or facilities designed into the project to facilitate re-
source recovery.
N/A
5.0 Are there alternatives to the project which may result in a lesser adverse
environmental effect? No
Please explain all project alternatives.
No project would diminish the capacity of the City to assess
and mitigate environmental effects of development proposals.
I hereby certify that the information herein is true and accurate to the best of my
knowledge.
i
nature Date Filed
REV: 6/74 -9-
1
a
® Huntington Beach Planning Commission
P.O. BOX 190 CALIFORNIA 92648
COMMISSION POLICY
1. SUBJECT: Use of Qualified POLICY NUMBER EFFECTIVE DATE
Zoning Designation
77- (Effective date of
Code Amendment No.
77-5)
2. POLICY: Except in unique situations, it is the policy of the Planning
Commission to utilize "Q" zoning only in the following instances :
a. Where a change of zone would only be granted if a particular
use were to be developed
b. Where the provisions of the zoning ordinance would not adequa":
meet the needs of an area and where a change .of zone would be
granted only if conditions were imposed upon the subject property to
insure that subsequent development would be compatible, enviro
mentally inoffensive, or furthers the policies of the Genera
Plan.
Further provided, it is the policy of the Planning Commission to
utilize the provisions of the ,Qualified Classification change of
zone only in . instances where all other avenues of regulatory
control would not achieve desired results.
3. PURPOSE: To generally explain and document those instances where the
Planning Commission would utilize "Q" zoning to impose limitation
upon a change of zone.
4. IMPLEMENTING PROCEDURES:
In examining any change of zone, staff will consider Commission
Policy on the use of "Q" zoning when advising the public and
in reporting its recommendations to the Planning Commission on
changes of zone.
E -
! BACKGROUND:
Reference: Code Amendment No, 77-5 .
i '
City of Huntington Beach
County of Orange
State of California
Jffidavitof Publication
= of GEORGE FARQUHAR _
Publisher Huntington Beach News
i
Filed
Clerk
By
Deputy Clerk
Ell
MAY 2 6 1977
Huntington Beach Planning Commission
OF HUNTINGTON BEAC�j
P.O. BOX 190 CALIFORNIA 92648ADI SIN, T S P,ATIVE OFFICE
TO: Honorable Mayor and City Council
FROM: Planning Commission
DATE: May 26, 1977
ATTN: Floyd G. Belsito., City Administrator
RE: PROPOSED CODE AMENDMENT NO. 77-5
ESTABLISHING THE QUALIFIED CLASSIFICATION CHANGE OF ZONE
PLANNING COMMISSION ACTION:
ON MOTION BY FINLEY AND SECOND BY PARKINSON CODE AMENDMENT NO. 77-5
WAS APPROVED BY THE FOLLOWING VOTE:
AYES : Parkinson, Finley, Boyle, Shea, Newman
NOES: None
ABSENT: Gibson, Slates
PLANNING COMMISSION RECOMMENDATION:
The Planning Commission recommends approval of Code Amendment No. 77-5
and Negative Declaration No. 77-52 pertaining to the environmental effects
of the Code Amendment. The Planning Commission also requests concurrence
from the City Council regarding the proposed Planning Commission policy
in using the "Q" Zone.
SUMMARY ANALYSIS:
Code Amendment No. 77-5 would establish a zoning procedure whereby
at the time of enacting a change of zone conditions may be placed upon
the affected property to regulate uses, the physical layout, and other
controls deemed necessary beyond the scope of the zoning ordinance to
permit such a change. The proposed ordinance is a modified version of the
City of Los Angeles' "Q" Ordinance which has been in effect for,,several years .
The purpose of the proposed ordinance is to provide a means by which the
City may be assured that development upon property in certain areas is
a specific type of land use or similarly is built in such a way so as
to remove any reservations the Planning Commission or City Council would
have in granting such a change of zone.
Examples of how the Qualified Zone could be utilized are cited in the
attached staff reports.
Page Two,
The Planning Commission also approved the attached policy guidelines
suggested by the staff relating to instances where the Qualified Zone
should be utilized.
ENVIRONMENTAL STATUS :
Negative Declaration No. 77-52 was approved by the Planning Commission,
having found that the project will not have a significant adverse effect
on the environment.
SUPPORTING INFORMATION:
1. March 24, and May 16 , 1977 Staff Reports
2. Negative Declaration and Initial Study
3. City Attorney Opinion No. 73-60
4. Proposed Ordinance
5. Planning Commission Policy
Respectfully submitted,
Edward D. Selich
Secretary
EDS :DE:gc
P, ,
NEGATIVE DECLARATION
NOTICE OF DETERMINATION
TO: 1. City of Iuntington Beach REF: Negative Declaration No. 77-52 .
Applicant
Date Posted -Ap-ril 21, 1977
2 . Clerk of the Board EIR No.
P.O. Box 687 Public Hearing Date:
Santa Ana, CA 92702
Application/Permit No. CA 77-5
Notice is hereby given that the City of Huntington Beach _
City Council on [_ approved the pro-
(Discretionary Body) (Date)
[] disapproved
ject as herein described and located:
Project Description: Establishment of procedure whereby , at the time
of enacting a change of zone, coons may be placed upon the attected
property to regulate uses , the physical layout, and other controls deemed
necessary beyond the scope of the zoning ordinance to permit such a change.
Project Location/Address : N/A
and that the City, as the Lead Agency, finds that the project [-] will not
will have a significant (substantial adverse) effect on the environment.
[]_J An initial study was conducted by the City of Huntington Beach.
The study consisted of. a review of the application submitted by the project
sponsor and is supported by adequate scientific and factual data to support
the finding. The application was posted in the Office of the City Clerk for
public and private review and comment.
® An Environmental Impact Report has not been prepared for this
project.
An Environmental Impact Report has been prepared and adopted for
this project. The form and content of that environmental docu-
ment was prepared pursuant to the California Environmental
Quality Act (et seq) .
NOTE: A copy of all information in support of the application and of all
subsequent discretionary proceedings may be reviewed in the Department of
Environmental Resources , City of Huntington Beach, P.O. Box 190 , Huntington
Beach, California, 92648 .
Department of the City filing notice: Department of Environmental Resource:
Secretary of the Decision-Making Body Date
cc: Environmental Council
PRELIMINARY ENVIRONMENTAL DESCRIPTION ,
INITIAL STUDY
Fee - $75.00
City of Huntington Beach, Planning Department
Applicant/Authorized Agent
FOR CITY USE ONLY
P.O. Box 190 , Huntington Beach, CA 92648
Mailing Address Project
r
Number
(714) 536-5271 Dept. of Origin:
Telephone
Other Application
Property Owner or Permit Numbers
'4 V
Mailing Address/Telephone
NOTE: Not all projects require the preparation of an environ-
mental impact report (EIR) . To assist the Department
of Environmental Resources in making this determination,
the following information must ;,be supplied. Add addi-
tional information if pertinent.
1.0 Project Information: (Please attach Plot Plan and submit photographs of subject
property)
1.1 Nature of Project: Give a complete description of the proposed project.
Establishment of a procedure whereby, at the time of enacting a
change of zone, conditions may be placed upon the affected property
to regulate uses, the physical layout, and other controls deemed
necessary beyond the scope of the zoning ordinance to permit such
a change.
a. If the project is commercial or industrial, give a complete description
of activities.
N/A
b. If the project is residential, indicate number, types, and size of units
and associated facilities.
N/A
C. List all types of building materials to be used for all structures in
the project.
N/A
1 .2 Whit. arc 01e 01)j(,(-J i.ves of the pr-oject.?
To enoble the city to impoase cone] i_tions upon prope.rt.y at: the
time of a zone change where such conditions are deemed necessary
to grant such a zone change.
1.3 Location of project: (Address, nearest street intersections)
N/A
1.4 Legal Description: N/A
Lot: Block: Tract: Section: Township: Range:
Assessor's Parcel No.
1.5 Project land area (acres) : N/A
1.6 General relationships of the project to surrounding properties:
(Information available in Planning Department on District Maps)
LAND USE ELEMENT
USE ZONING
GENERAL PLAN
Present N/A * N/A N/A
Proposed N/A
Surrounding north N/A, N/A N/A
Surrounding south N/A N/A N/A
Surrounding east N/A N/A N/A
Surrounding west N/A N/A N/A
*NOTE: If property is vacant at this time, has said property been used for
agriculture in the past five years?
-2-
1.7 Dist other public agencies having jurisdiction by law in approval, 'authoriza-
tion, certification or issuance of a permit for this project:
D O.C. anitati.on District ❑ Calif. Regional Water 50 City Council
❑ O.C. Flood Control Dist. Quality Control Bd. 1�j Planning Commission
p O.C. Air Pollution Control ❑ Local Agency Formation ❑ Board of Zoning Adjustments
District Commission ❑ Design Review Board
❑ Calif. Coastal Zone Con- ❑ State Division of ❑ Other:
servation Commission Highways
❑ Corps of Engineers o
1.8 What will be the maximum occupancy of all structures proposed within this
project?
N/A
(If commercial or industrial usage, indicate occupancy in terms of employees
and customers.)
1.9 Traffic:
a. Indicate the present traffic volume on arterials and added trips per day
from the project.
N/A
b. Indicate points of egress and ingress to the project.
N/A
C. What is existing speed limit at the project location?
N/A
d. What is the estimated vehicle miles traveled (VMT) generated by the
project? .
N/A
e. If there is a source of data used to answer traffic questions above,
please indicate.
N/A
1.10 What is the percent (o) coverage proposed by the project for:
a. Building _N/A
b. Paving N/A
C. Existing landscaping N/A
d. New landscaping N/A
1.1.1 Describe the offstreet parking (location, type, and number of spaces) -to be
provided for the project.
N/A
-3-
2.0 Exist.in. Environmental Setti_nu of Proposed Project:
Describe the following existing environmental conditions:
2.1 Land form (topography and soils) :
a. Soil type N/A
b. Topography N/A
2.2 Relative location matrix:
CHARACTERISTIC DISTANCE
Nearest fault line N/A
Nearest bluff N/A
Natural flood plain N/A
I Flood. channel N/A
Shore line N/A
2. 3 Objects of historic, aesthetic, or archaeological significance on subject
property:
N/A
2.4 If the project is commercial, industrial, or residential, what is the roadway
distance in miles from project to the nearest:
a. Shopping center N/A
b. Freeway exit N A
C. Elementary school N/A
d. Public library N/A
3.0 Environmental Impact of the Proposed Project:
3.1 Natural resources:
a. Does any wildlife use the project area for a place to feed, nest, or rest
during a given season? AI,LA_
If so, please list-
-4-
huntington beach finning department
Stull
_.report__
TO: Planning Commission
FROM: Planning Department
DATE: May 16, 1977
RE: PROPOSED CODE AMENDMENT NO. 77-5 ESTABLISHING THE
QUALIFIED CLASSIFICATION CHANGE OF ZONE
SYNOPSIS OF CODE AMENDMENT
The staff has proposed establishment of a pro-
cedure whereby, at the time of enacting a change
of zone, conditions may be placed upon the affected
property to regulate uses, the physical layout, and
other controls deemed necessary beyond the scope
of the zoning ordinance to permit such a change.
The proposed ordinance is a form of conditional
zoning. All pertinent issues relating to this
matter are discussed in the staff report.
SUGGESTED ACTION:
Approve Code Amendment No. 77-5 and Planning Commission policy
pertaining to use of the qualified classification zone.
1.0 ENVIRONMENTAL STATUS
Negative Declaration No. 77-52 was posted by the Planning Department
on April 21, 1977 in the office of the City Clerk. No comments have
been received to date on the proposed Negative Declaration.
Based on this public posting period, the information contained in the
initial study document and subsequent staff discussion, the Planning
Department recommends approval of Negative Declaration No. 77-52 by
the Planning Commission.
A copy of the initial study and Negative Declaration statement is
attached for the Commission's review.
2. 0 BACKGROUND INFORMATION
The Planning Commission reviewed the proposed ordinance and policy
document at its March 29, 1971 Study Session and instructed the staff
to set the matter for public hearing. Pertinent information presented
by the staff at that time is attached for the Planning Commission's
information.
The functions of the proposed ordinance and policy document are dis-
cussed in the attached March 24 , 7 staff report.
s
f
a
CODE AMENDMENT NO. 77-5
Page 2
3 . 0 FISCAL IMPACT OF PROPOSED ORDINANCE
Approval of this ordinance or subsequent actions through its use is
not anticipated to pose a fiscal impact upon the City.
4 . 0 SUGGESTED ACTION:
Approve Code Amendment No. 77-5 and Planning Commission Policv
pertaining to use of the qualified classification zone.
DE: ja
ATTACHMENTS : 3/24/77. Staff Report
Negative Declaration & Initial Study
City Attorney Opinion No. 73-60
Ordinance
Policy Document
huntington beApkmning department
TO: Planning Commission
FROM: Planning Department
DATE: March 24, 1977
SUBJECT: PROPOSED CODE AMENDMENT 77-5 ESTABLISHING THE
QUALIFIED CLASSIFICATION CHANGE OF ZONE
SYNOPSIS OF CODE AMENDMENT
The staff has proposed establishment of a
procedure whereby, at the time of enacting
a change of zone, conditions may be placed .
upon the affected property to regulate uses,
the physical layout, and other controls deemed
necessary beyond the scope of the zoning ordinance
to permit .such a change.
The proposed ordinance is a form of conditional
zoning. All pertinent issues relating to this
matter are discussed in the staff report.
SUGGESTED ACTION: 1. Set proposed Code Amendment No. 77-5 for public
hearing.
2. Review proposed Commission Policy in re: use of
qualified zoning designation.
1. 0 BACKGROUND INFORMATION:
The issue of conditional zoning is one which the City originally
assessed in 1973. An ordinance similar to the proposed code amend-
ment was drafted, accompanied by a thorough_ legal analysis (see
City Attorney Opinion No. 73-60 attached) . At that time, the
legality of portions of the draft ordinance was questionable and
further pursuit of the proposal was halted.
Recently the status of those legal objections have .been altered based
upon court decisions to a level where the subject proposal now
appears legally sustainable (see memorandum attached) . f
1
In view of these circumstances, the staff contends that the proposed
Qualified Classification Ordinance will serve as a desirable zoning
tool to establish flexibility within the City' s present land use
control system.
2 .0 SUMMARY OF PROPOSED AMENDMENT:
The proposed ordinance is a modified version of the City of Los
Angeles' "Q" Ordinance which has been in effect for several years. 1
Page Two
The purpose of the proposed ordinance is to provide a means by which
the City may be assured that development upon property in certain
areas is a specific type of land use or similarly, is built in such
a way so as to remove any reservations the Planning Commission or
City Council would have in granting such a change of zone. The
Qualified classification would only be necessary, however, where
constraints over and above the City' s zoning laws is necessary.
For instance, if a parcel of land were proposed to be rezoned from
Al to R2 in an area where there was an undesirable multiplicity of
similar unit types (for example: four-plexesl, the zoning could be
qualified, .i.e. , stipulating that only an apartment complex encompas-
sing the total acreage of the parcel be developed.
Use of the Qualified classification would, of course, have to be
predecated upon reasonable justification.
In application, the Qualified classification would be affixed as a
temporary designation exhibited as a ( Q ) preceeding the base district
zoning designation until construction thereunder has been completed
at which time the Q prefix would be exhibited without parenthesis..
If the development did not transpire under given time periods provided
in the ordinance, the zoning on the subject property would automatically-
revert to the district existing prior to the zone change without the
necessity of an additional public hearing. This issue is discussed
thoroughly in the attached Attorney's Opinion.
In summary, the zoning symbols would appear as follows in the example cited;
Existing zoning - Al
Proposed zoning (temporary Q zoning with conditions affixed) - (Q) R2
Property is developed, zoning becomes permanent: QR22
if property does not develop within legal time frame, zoning reverts: A _
3. 0 ANALYSIS:
The attached City Attorney' s opinion extensively discusses various
advantages and disadvantages which are associated with conditional
zoning.
The provision in the code amendment for ,automatic reversion (without
subsequent public hearings) to the former zoning if development does not
transpire is, in staff' s opinion, largely an administrative matter.
Through proper initial notification that conditional zoning instances
are subject to automatic reversion to prior zoning based on non perfor-
mance, the developer, residents, and interested persons within the
area are initially put on notice that the zoning is in a fluid state
until a development has been constructed.
Page ,Three
The proposed ordinance would, however, add another dimension for
consideration at the General Plan level. The automatic reversion
clause would in certain cases mandate two revisions to the. General
Plan.
Assuming an amendment to the Land Use Element were necessary as in
the aforementioned zoning example - from Al to R2, a General Plan
Amendment would be necessary at the outset of the zoning proposal
and if the development failed to be constructed under the Qualified
classification, a subsequent General Plan Amendment would be necessary
to be consistent with the prior zoning.
There would probably be few times when this situation would arise
based upon construction records, however, . as vast majority of
development proposals within a City end up being built expeditiously
in view of land values location, demand, etc.
4 . 0 PLANNING COMMISSION POLICY:
The attached policy proposal is suggested for the purpose of providing
guidance as to how the Qualified classification should be used. Staff
feels that a policy document would serve to explain the instances and
circumstances under which such zoning classifications would be utilized -
thus gauging the degree of flexibility that is intended.
5. 0 SUGGESTED ACTION: y
1. Set proposed Code Amendment No. 77-5 for public hearing.
2. Review proposed Commission Policy in re: use of qualified zoning
designation.
DE:gc
Attachments: City Attorney' s Opinion No. 73-60
City Attorney' s Memorandum Opinion dated 2/23/77
Proposed Ordinance
Proposed Policy
OFFICE OF THE CITY ATTORNEY
OPINION NO. 73-60
.September 20, 1973
SUBJECT : Los Angeles Qualified Zoning
Ordinance Provisions
REQUESTED BY: Councilman Jack Green
PREPARED BY: Don P . Bonfa, City Attorney
John J . O 'Connor, Deputy City Attorney
Councilman Green has requested that the City Attorney ' s
office review Los Angeles Ordinance. No.. 139 ,901 and advise
if this type of ordinance may legally be - adopted by the
City of Huntington Beach .
The purpose of the Los Angeles ordinance is reflected in
( the substance of its caption, "Requirements for 'Q '
Qualified Classification Change of Zone . " The ostensible
purpose of this type of an ordinance is to control the
type of development which will ensue under a rezoning of
property , and obviate the chicanery involved in having
property rezoned to a more intense use , solely for pur-
poses of enhancing the resale of such property .
In practical operation , the Los Angeles ordinance appears
to operate in the following manner:
1 . A developer requests a zone change of property
for the purpose of constructing a specific type of devel-
opment thereon, and/or a specific use .
2 . If the city deems it desirable , the city rezones
the property to the requested zoning; however, certain
"restrictions" or "qualifications" are imposed upon the
zone which would in effect restrict the use of the rezoned
property to the type of use and/or development proposed .
3 . After the zoning is approved, the developer has
a period of one year to construct his proposed development
OFFICE OF THE CITY ATTOTNEY September 20 , 1973'
Opinion No . 7B-60 Page 2
and/or establish the use and obtain a certificate of
occupancy . (If this cannot be completed within one ,year,
there is a further provision enabling the developer to
request an additional period of one year to complete the
development and/or establish the use and obtain a certi-
ficate of occupancy . )
It . If the certificate of occupancy for the proposed
development and/or use is obtained within the one-year
period (or the one-year extension, if applicable, )- then
the zoning on the property becomes permanent . If not
obtained within the prescribed period, then the zoning
automatically reverts to the prior zoning without the
necessity of a hearing.
The practical operation of this ordinance was discussed with
the City of Los Angeles , specifically with Deputy City
Attorney Wm. Burge and Tom Golden of the Planning Department ,
both of whom participated in the drafting and implementation
of the ordinance . They described the advantages of the
"Q" ordinance to the city as : '
(a) The city has a more effective device to control
the type of development that will take place
when property is rezoned; and
(b) It eliminates the chicanery with some developers
where they propose a specific development and/or
use of property and upon such representation
secure a rezoning, and once the rezoning has been
effected have no intentions developing the prop-
erty because their sole purpose in securing the
rezoning was to enhance the value of property
for purposes of resale .
The disadvantages of the "Q" ordinance were stated to be :
(a) There was a tendency by the Los Angeles Planning
Commission to overuse the ordinance and place
unnecessary restrictions upon the rezoning of
property;
(b) Where developer has secured a rezoning of ,prop-
erty, but subsequently has been required to
make certain changes from the conditions to
accommodate subtenants , lessees , etc . , .it is
again necessary for him to process an applica-
tion for zone modification to the Planning Com-
mission in order to have the conditions of the
zoning changed;
OFFICE OF THE CITY ATTORNEY September 20 , 1973
Opinion No . J73-60 Page 3
(c ) The one ,year period of time for completion of
the project and securing an occupancy certifi
cate and the one year extension was found to be
inadequate in view of the protracted period of
time necessary to develop plans and complete
a project . The one year time interval to secure
use occupancy permit and the one year extension,
thereof is being recommended to be changed to
two year time intervals ; and
(d) The legal department was concerned about the
legality of this type of ordinance because it
is subject to constitutional attack on the basis
that it does not treat like parcels of property
uniformly .
We will now turn to an analysis of the legality of this
type of "Q" Qualified Zoning Ordinance .
While the "Q" ordinance creates a zone change through the ,,
orthodox. zoning process, it operates to .achieve the same
purpose as a floating zone . The floating zone is adopted
as a zone with provisions for use , height , bulk and the like
and is not fixed to any location in the community, rather
it floats above the community to be fixed only when it can
be applied to appropriate land . Fixation of a floating
zone is often invited by application of a land owner . The
floating zone is used, in part , to avoid the problem of over-
zoning and to obviate the difficulty of foreseeing how an area
will develop . The validity of this type of zone has never
been ruled on by a California court . Quoting from California
Zoning Practice , at pg. 204 :
" No California court has discussed the validity
of floating zones and not . many California communities
have adopted them. In other states , floating zones
have been held invalid as ultra vices enabling act
provisions , authorizing the .division of a community
into zones of a determined number, shape , and area,
and requiring that regulations be uniform within each
zone . Floating zones have been held ultra vires as
not being in accordance with a comprehensive plan ,
since the zone can be placed anywhere . While there
is no statutory requirement in California that zoning
be in accord with a comprehensive plan , zoning must
still be comprehensive . Moreover, there is 'a risk that
a floating zone, when fixed, might be held to be spot
zoning. (Case citations omitted. ) "
OFFICE' OF' THE CI`.CY ATTORNEY SepLernber 20, 1973
Opinion No. 7�-60 Page 4
The other legally vulnerable provision of the "Q" ordinance
Is the automatic revi.si.on to preexisting zoning if the
proposed use and/or development is not completed within the
deg; gnated time period . In the case of S_crutton v. Sacramento
( 1969 ) 79 Cal . Rptr. 872 , the Court of Appeals held a con-
dition in a zone change which would cause it to. revert to
its prior zone classification if certain conditions were
not complied with was invalid. The reasons stated by the
Court for holding the automatic revision invalid were the
absence of notice and hearing requirements mandated by
Government Code Sections 65853 throu h 65857 . Quoting from
the Scrutton case at page 7 :
"Plaintiff has a valid objection to the reversion
feature of the proposed rezoning. In effect , the
proposed contract declares that the landowner' s
breach of covenant will be met by automatic
reversion from the multiple residential to the
original agricultural classification or by
reversion through action of the board of super-
visors . The reversion would amount to a second
rezoning. Automatic reversion would violate the
procedural directions of state law, which demands
that rezoning be accomplished through notice ,
hearings and planning; commission :i_nquir,y . -
(Gov. Code , §§65853-65857 ; Richter v. Board of
Supervisors , supra, 259 Cal . App . 2d at p . 105 ,
66 Cal . Rptr. 52; Hein v. City of Daly City ,
165 Cal . App . 2d 401 , 405-406, 332 P . 2d 120 . )
Even if procedural directions were followed, the
reversion would violate substantive limitations
upon the supervisors ' legislative power. The
board has power to rezone an individual parcel
when changed community conditions have rendered
the former classification unsuitable and the new
one is consistent with the public interest .
(McCarthy v. City of Manhattan Beach, 41 Cal. 2d
879 , 885 , 892 , 264 P . 2d 932; Skalko v. City of
Sunnyvale , supra, 14 Cal . 2d at p. 216 , 93 P . 2d
• 93; Reynolds v. Barrett , 12 Cal . 2d 2411 , 251, 83
P. 2d 29 ; 13 Hastings L.J . 390-394 . ) Although
the courts do not ordinarily inquire into legis-
lative motivation , the proceedings on their face
would characterize the reversion ordinance as a
forfeiture rather than a legislative decision on
m land use . (Cf. Kissinger v. City of Los Angeles ,
161 Cal . App . 2d 454 , 460-462 , 327 P . 2d 10 . ) An
ordinance so conceived is not a valid exercise of
( zoning power. " .
OFFICE OF THE CITY ATTORNEY September 20, 1973
Opinion No. 73-60 'age 5
Analyses of the cited case; seem to reflect adversely .upon
the legality of a "R" ordinance . Until such time as the
Scrutton case tsc overruled , the existing; state of the law
compels the conclusion that any automatic reversion to
previous zoning; without a hearing would be invalid . There
is a presumption of validity of any zoning ordinance
(Porter v. City of Riverside, 261 C .A. 2d 832) and the
trend of recent cases seems to recognize the need for
greater local control over zoning and it is impossible
to prognosticate how a court would rule if this type of
ordinance were challenged through litigation. Its legality
can ultimately be decided only through a decision by the
California Supreme Court .
Respectfully submitted,
m
DON P. BONFA, City A for y
and
1
JOI J .. O'CON R, Deputy City Attorney
//DPB:JJO: er:lm
a .
l
I�
1-jUNTiNGT0 'm."N 1
PLANNING DEPT.
�• ' CITY OF HUNTINGTON BEACH
j1 INTER-DEPARTMENT COMMUNICATION
HLIN71NG70N BEACH �. O• box 190
I!untsnC1.on Beach, CA 32G
SE'l,TCH JOHN O ' CONNOR
To Planning Director From Deputy City Attorney
Subject "Q" Ordinance Date February 28, 1977
In response to your inquiry, City Attorney Opinion
No. 73-60 extensively discusses the "Q" Ordinance and the
legal ramifications . The decision in Associated Home Builders
of the Greater Eastby , Inc . v. City of Livermore , 135 Cal .
Rptr. 1 , has judicially recognized the validity of a zoning
change without the necessity of public hearings . In view of
the Livermore decision, the legal validity of the automatic
reversionary provision of the "Q" Ordinance has gained sub-
stan.ti.al legal support and analogy to that decision.
You have also requested a comprehensive analysis of
the question of conditional zoning. Opinion No . 73-60 discusses
the Scrutton case and its application to contract zoning.
Attached hereto is a U. C .L.A. Law Review article which
extensively discusses contract conditional zoning.
l
JA 0' NOR
j'beputy City Attorney
JOC :er
Attachment
APPROVED:
DON P. BONFA, City torney
0
Publish 5/26/77
Fos tc ards
NOTICE OF PUBLIC HEARING
Code Amendment 77-5 & Negative Declaration No. 77-52
NOTICE IS HEREPY .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 Center, Huntington Beach, at the hour of'.
7:30 P.M. , or as soon thereafter as possible, on Monday
the 6th day of June , 19 77, for the purpose of
considering Code Amendment No. 77-5, initiated by the Planning Department,
establishing the qualified classification change of zone. Such zoning designation
would enable a procedure for imposing conditions upon. property under consideration
for a change of zone where is is deemed that land use controls beyond the. scope of
existing regulatory provisions are. necessary. The Negative -Declaration addresses
the environmental effects of the proposed ordinance in accordance with the
California Environmental 'Quality Act. A copy of said ordinance.and Negative
Declaration is on file in the Planning Department. Office.
All interested persons are invited to attend said hearing and
express their Opinions for or against said Code Amendment and, Negative Declaration ,
Further information may be obtained from the Office of the City
Clerk : (714) 536-5226
DATED- 5/20/77 CITY OF- WINTIN&ON BEACH
..® BY: Alicia M. Wentworth
City G1erk
i
Affidavit
Publication
State of California
County of Orange ss
City of Huntington Beach
George Farquhar, being duly sworn on oath, says: That he is a
citizen of the United States, over the age of twenty-one years.
That he is the printer and publisher. of the L{untington Beach
News, a weekly newspaper of general circulation printed and pub-
lished in Huntington Beach, California and circulated in the said ( .
County of Orange and elsewhere and published for the dissemination r�
of local and other news of a general character, and has a bona fide Q;
subscription list of paying subscribers, and said paper has been
established, printed and published in the State of California, and Published Huntington Beach News, May
County of Orange, for at least one year next before the publication 5; 1977.
of the first insertion of this notice; and the said newspaper is not LEGAL NOTICE
devoted to the interest of, or published for the entertainment of any NOTICE of PUBLIC HEARING .-
CODE AMENDMENT.NO.77.5
particular class, profession, trade, calling, race or denomination, or
aI7y number thereof. NOTICE IS HEREBY GIVEN that a pub.
tic hearing will be held by the. City
The Huntington Beach New was adjudicated a legal newspaper Planning Commission of the city of
of general circulation by Judge G. K. Scovel in the Superior. Court Huntington Beach, California, for the
of Orange County, California August 27th, 1937 by order No. A-5931. purpose of considering proposed Code
Amendment No. 77-5 establishing the
qualified classification change. of zone.
That the CODE AMENDMENT NO, 72--5 Such zoning designation would enable
a procedure for imposing conditions
upon property under consideration for
a change of zone where it is deemed
that land use controls beyond the scope
of which the annexed is a printed copy, was published in said news- of existing regulatory provisions are
necessary. A copy of said ordinance. is
on file in the .Planning ,Department
tine, j.$8 ee Office..
paper at least Said hearing will be held at the hour
of 7:00 P.M., on May 17, 1977, in the
Council Chambers Building of the Civic
Commencing from the - tth day of MU _ Center, 2000 Main Street, Huntington
Beach, California.
All interested persons are invited to
19=_ and ending on the 1 h day of May attend said hearing and express their
opinions for or against the proposed
Code Amendment No. 77-5•
Z be
19-2 , both days inclusive, and as often during said period and 1 Further information may 'obtained
times of publication as said paper was regularly issued, and in the i from the City Planning Department.
regular and entire issue of said pewspaper proper, and not in a Telephone No. (714) 536-5271.
DATED this Sth day of May, 1477.
supplement, and said notice was published therein on the following CITY PLANNING COMMISSION
dates, to-wit, By Edward D. Selich
Secretary
I44y 5 , 1977
,Publisher
Subscribed and sworn to before me this 6th-_.__ day of
May—,11977__-.
=t Notary Public
�f Orange County, California
i- -TI-OMAS D. WYLL1E
Notary Public-California i
Orange Coun,y ,
3 r`u ✓ My Commission Expires
Sepfembar 12, 1479
- ------------------- - ---
WHITE-CITY ATTORNEY
BLUE-CITY CLERK �' e CITY OF Hi1NTINt,fON BEACH No.
GREEN-CITY ADMINISTRATOR
" CANARY-13EPARTMENTAL REQUEST for ORDINANCE�orYRES.Q:L.VTI'ON
Date Request made by Department
Hay. 18, . 19,77 DZIVe Fadie Planning
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 on 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:
I
fie: Code .kmendraant 17ra, 77-5 "Q Zone" t
Please prepare an Ordinance reflec-lt,-?ng the attached draft Whioll
the Planning Corix- onion approved can may 17, 1977.
he matter wi$.I,.'. 1+'e heald before the Ci tv Counc4 l on Junq 6, 1977.
Rtsponse reque--ted by L-!a 23, 1977.
t *;
rr
�i
r
1
c
Desired effective date Signed: ` �` Approved as to availability of funds
-'"7! '�1 ' (.
•�� Director of Finance
City Attorney—Please prepare and sub im t printed copies to this office by:
C. City Administrator