HomeMy WebLinkAboutPC Min 1994-03-09
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CITY OF SEAL BEACH PLANNING COl\1MISSION
MEETING AGENDA of MARCH 9, 1994
7:30 P.M. * City Council Chambers
211 Eighth Street, Seal Beach, CA
Next Resolution: #94-9
I. PLEDGE OF ALLEGIANCE
ll. ROLL CALL
ill. CONSENT CALENDAR
1. Minutes of Febmary 23, 1994
IV. SCHEDULED MATTERS
2. Adoption of Resolution #94-7
CUP #94-1 * Radisson Hotel
Approving Controlled Access Beverage Cabinets in Rooms and
Denying Hospitality Suite.
3.
Receive and File: Fede.'allmplementation Plan (FIP) - Air Quality.
4. Showing of August 21, 1991 Planning Commission Video
(Presentation by Assistant City Attorney Michael Colantuono re State
planning law and Brown Act provisions). Commentary by Assistant
City Attorney C.'aig Steele.
v. PUBLIC HEARINGS
VI. ORAL COMMUNICATIONS
VII. STAFF CONCERNS
VID. COl\1MISSION CONCERNS
IX. ADJOURNMENT
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Page 2 - Planning Commission Ag~mla for March 9, 1994
1994 AGENDA FORECAST
MAR 23.: ".;..:...CITY DeADLINE: . FEB' 1'6
. ,. :if A #94- if: 'Crestvie~ Patio Setbacks
CUP #93-2/901 Ocean/Kinda Lahaina @ 12 mos/ ABC
APR 06. i':'-. . 'CiTY DEADLINE: .. MAR 02
. ..... . .': ..... ':''[No new appi'ications received by deadline date]
A.J?R,'20" ...........'::.....: .Cr;ry DEA~LINE: . MAR 16
GPA #94-1 & ZC #94-1 re Exxon/Unocal on Marina Drive
~.AY O~:.:'., CITY OEADLINE; MAR 30
MAY 18.. ....: Crty DEAD"LINE: ;'. APR 13
:. ...... . . . .
JtJ~.. 08: ('~~:";.:...:.... CITY Q~.[jUN;a: MAY 04
CUP #92-19/Clancy's @ 12 mos/indefinite extension
Jw.r:22 ......:. :::.: CITY DEAl?:LlNE: . MAY:. 18
l1J.L 06::'.: ":,(.;CITY DEADLINE: -J.UN or
Election of Chairman & Vice Chairman
CUP #92-2/101 Main/SeaSide Grill/Review hours extension.
~ 20:'::;:.:..' ;;~~TY D~ADLIN)3: )UN 1~
Ap'G Q2.:' :.:., CIT}Y;OEAnpNE: JUN 19
CUP #92-26/review of Toitilla Beach for receipt of ABC lie. & conditions.
AUG'17 ... C1TY DbADLINE: JUL:q
~~p .07'; ...-:,. CITY 'bEAPLINB: AVO 03
S~~ 21.','::.; . .~ITY P.SAl?P~: AUO'.I?
Oqt05~:::. .' :CITY..P~AP~lN~.t 'AUG'31
O~Yr ~~.i:" .i'CITY'DEADLINE: ~EP 14
NqV 'O~:'" :......:. CITY..PEAqLlNI?; QCT O~
~OV'.~3":.: Crry DEADLINE: OCT 19
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CITY OF SEAL BEACH PLANNING COMl\fiSSION
MINUTES of MARCH 9, 1994
The Planning Commission of the City of Seal Beach met in regular session at 7:30 p.m. with
Chairman Dahlman calling the meeting to order with the Salute to the Flag.
ROLL CALL
Present:
Chairman Dahlman
Commissioners Soukup, Law, Campbell
Also
Present:
De.,partment of Develo.,pment Services:
Craig Steele, Assistant City Attorney
Lee Whittenberg, Director
Barry Curtis, Administrative Assistant
Absent:
Commissioner Sharp
Joan Fillmann, Administrative Secretary
Commissioner Sharp's absence was excused due to illness.
CONSENT CALENDAR
1.
Minutes of February 23, 1994
MOTION by Law; SECOND by Dahlman to approve the Planning Commission
Minutes of February 23, 1994 as amended:
Page 9, Line 2: Change "Mr. Rosenman got City Council approval also" to
"Mr. Rosenman got approval from District 1 CouncUperson
Bastings" .
Page 14, Line 42: Revise to read "Commi~ioner Soukup asked what would
Ruby's do if the City wanted to resume activities with the tram
as it was?"
Page 15, Line 26: Change" ...in this momentum" to "at this moment".
MOTION CARRIES:
AYES:
ABSENT:
4-0-1
Law, Campbell, Dahlman, Soukup
Sharp
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Page 2 - City of Seal Beach Planning Commission Minutes of March 9, 1994
SCHEDULED MATTERS
2. Adoption of Resolution #94-7
CUP #94-1 * Radisson Hotel
Mr. Steele suggested the following changes:
Page 7:
Change condition numbering to 14 - 20 as
there are two #16's.
Page 7:
Re Condition #20 regarding warning signs. The two paragraphs
may be pre-empted by State law. The City may not have the right
to impose this and it may be challenged; he could not provide
specific advice.
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Commissioner Soukup asked how the State would do this'? Mr. Steel said the ABC sets
forth the type of signs which must be posted by their applicants. Most courts hold that
ABC regulations pre-empt the field. Commissioner Soukup said he wanted the second
paragraph to be in red rather than black lettering.
The Commission discussed how many votes were needed to pass this resolution. With
that in mind, Commissioner Soukup said he would be out of town for the March 23rd
meeting.
MOTION by Law; SECOND by Dahlman to approve an alcohol-related land use
entitlement at 600 Marina Drive allowing in-room controlled access beverage
cabinets at the Radisson Hotel, not allowing a hospitality suite, and including the
second sentence of Condition #20 to be printed in red ink, through the adoption of
Resolution No. 94-7.
MOTION CARRIFS:
AYES:
ABSENT:
4-0-1
Law, Campbell, Dahlman, Soukup
Sharp
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3. Receive and File: Federal Implementation Plan (FIP) - Air Quality.
Staff Re,port
Mr. Whittenberg presented the staff report [Staff report on file in the Planning
Department], noting the City Council had requested this be forwarded to the Planning
Commission and Environmental Quality Control Board. The document is available for
public review. Although the rules are not printed yet, this document is the discussion
of what the rules entail and why they are being proposed.
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Page 3 - City of Seal Beach Planning Commission Minutes of March 9, 1994
The Commission asked questions on clean air emission standards and ramifications
regarding this plan.
MOTION by Campbell; SECOND by Law to receive and fIle the above-referenced
report.
MOTION CARRIES:
AYES:
ABSENT:
4-0-1
Dahlman, Soukup, Law, Campbell
Sharp
***
4. Showing of August 21, 1991 Planning Commi~ion meeting video with a presentation
on State planning law by Assistant City Attorney Michael Colantuono and with
commentary by Assistant City Attorney Craig Steele. '
Staff thought it appropriate to revisit the 1991 presentation by Assistant City Attorney
Michael Colantuono on a number of topics of general concern to the Planning
Commission. This video will be updated by Mr. Steele, advising the Commission on
new changes in the law. Commissioners Soukup and Campbell have not seen the 1991
presentation.
Mr. Colantuono introduced himself as the Planning Commission counsel for the City.
He explained that when significant matters come before the Planning Commission where
the City Manager and City Attorney believe the cost of representation is justified, the
Assistant City Attorney will attend the Planning Commission meeting.
The purpose of this legal overview is to give the Commission a sense of the issues with
some background. He advised the Commission that when they think an issue has arisen
they should consult with Planning Department staff and, when appropriate, consult with
the City Attorney's Office.
Mr. Colantuono spoke on the following nine topics:
1. Structure of California Land tJ se Law
2. The Brown Act (State law)
3. Procedures for Conducting Hearings
before the Planning Commission.
4. Planning Commission Findings.
5. Conflict of Interest.
6. Concept of Bias.
7. Requirements for the California Environmental Quality Act.
8. Permit Streamlining Act
9. Circumstances in Which City Officers Can Be Held Personally Liable for
Their Conduct as Officers.
Page 4 - City of Seal Beach Planning Commission Minutes of March 9, 1994
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Mr. Steele encouraged the Commission to ask questions at the end of each topic, noting he would
be updating the 1991 Study Session.
STRUCTURE OF CALIFORNIA LAND USE LAW
The General Plan
Mr. Colantuono began by explaining a General Plan is the basic tool of land use planning in
California. A General Plan is adopted by a city with the participation of the Planning
Commission and the City Council. Consulting firms are usually hired by a city to develop this
document. A General Plan is a twenty (20) year plan for the physical development of a city and
ideally is updated on a regular basis so it becomes a useful tool to structure all planning
decisions. A General Plan has eight (8) mandatory elements, a Land Use Element which
determines what uses are appropriate in what parts of the city, a Circulation Element which talks
about how the streets and highw~ys are designed in the city and how they are intended to be
used, a Housing Element, which is a mandatory program required by State law to promote the
provision of affordable housing in the community, a Conservation Element, which speaks to the
conservation and appropriate utilization of natural resources in the community, ranging from
things like oil and gas to deposits of sand and gravel. There's an ODen $pace Element, which
deals with preservation of open spaces, parks and recreational areas and a Noise Element and
a Safety Element. The Safety Element is basically a seismic safety element, although it also
addresses' such issues as evacuation plans.
. The other basic planning tool for a Planning Commission is a Zoning Ordinance, which is
Chapter 28 of Seal Beach's municipal~. It divides the City into use districts, describes the
uses which are permissible in those districts and describes procedures by which the city can
permit certain uses of land.
While a General Plan is broad and outlines principals, a Zoning Ordinance specifies the details
of who can do what, where and with who's permission. Between those two extremes is a
Specific Plan. A Specific Plan takes some of the nature of both. It's a long range planning tool
for a part of the City rather than for all of the City and, under the Seal Beach municipal ~,
it also functions as a Zoning Ordinance. The uses permitted in a specific planning area are
detailed in a Specific Plan. The Specific Plan areas existing in the City apply to the Hellman
Ranch, the Bixby Ranch and the Department of Water and Power property. Under the Zoning
Ordinance there are a number of concepts:
. Variance. A Variance is a right to use land in a way that violates the strict terms of
the ordinance. Typically they are granted because of some sort of unique hardship. So
that somebody who has unusual circumstances does not lose the right to use and enjoy
their property.
. Conditional Use Permits and Unclassified Use Permits. There are uses which are
expressly permitted ... and they will never come to this Commission. There are other
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Page 5 _ City of Seal Beach Planning Commission Minutes of March 9, 1994
uses which the Zoning Ordinance deems are not appropriate for automatic approval, and
requires some review, like a church or school.
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Chairman Fife interrupts, asking if a person seeking a Variance need not show that his is a lot
or property situation unique throughout the entire City'? Adding that in a typical subdivision
certain lots may be cloned several times. Mr. Colantuono said that was a realistic interpretation.
The ideas in a Variance are that it's unique such that the application of the usual rules impose
a burden on that person that other people don't bear. Another fmding you have to make is, is
you have to find the granting a Variance does not amount to granting a special privilege.
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Chairman Fife asked if a Commission, which is subordinate to the City Council, should take a
clue from the Council's interpretation of Variance applications'? His perception has been that
the Planning Commission applied the Variance rules more stringently than the City Council has,
conceding the Council the authority to use its discretion more widely. Does it follow that the
Planning Commission can take lessons from that'? Mr. Colantuono said his experience
demonstrated that it's the function of the appellate courts to identify issues for decisions by the
higher courts. Continuing to disagree with the teachings of the higher court, was a way of
inviting them to reconsider their position and that it was a healthy contribution to the debate.
The law does not require the Planning Commission to behave that way, the law requires the
Commission to grant Variances when the evidence, in its judgement, allows the Commission to
make findings of need and no special privilege. If the City Council views the facts differently,
that's the nature of the democratic process. It's a function of the Commission's judgement as
to whether the Commission wants to facilitate their viewpoint or resist it. Chairman Fife said
he did not view this issue as a tug-of-war between the City Council and the Planning
Commission but rather the idea that if the Council has given this interpretation to this situation,
and there's an applicant who has a situation presented to the Commission ~at, prior tQ hearing
the Council's interpretation of one just like it, he would vote this down. He asked if he should
not now. put this applicant through the trouble of a denial here and an appeal to the City
Council'? Should he accept the fact that the Council has given the Commission direction on how
to interpret issues and let's give that benefit to this applicant'? Mr. Colantuono said the
Commission is not required by law to respond to that situation in either way. The Commission
might decide that the outcome of the appeal seems predictable from the Commission's viewpoint
and that it's inappropriate to force someone to pay a fuing fee and wait another month and that
you'd rather not put them through that even though you would prefer they not get the rights to
which you expect them soon to be entitled. Mr. Steele interrupted, saying the law requires the
Planning Commission make an independent judgment on the evidence before it. To some
extent, the Commission has to distance itself from what it views as the way the Council may
be interpreting these decisions on appeal. Individual decisions must be made on the record
before you rather than on a subject factor, like feeling you know how an appeal may come
out. Chairman Fife said the code changed, allowing all the Commission's decision to be
appealed but he thought it had more significance when some of the Commission's decisions were
not appealable. Mr. Colantuono said the code's standards should be interpreted consistently by
the City. Variances are somewhat different because although the fmdings are set out in the
municipal code they are also broadly known in the law, very common State-wide, there is an
Page 6 _ City of Seal Beach Planning Commission Minutes of March 9, 1994
argument on whether or not State law imposes certain findings on you as a charter city. Because
the legal standard of what those findings mean is pretty clear, if there's a difference between the
Commission and the Council, it goes to how you weigh the evidence, not to what the law is.
On the unique-to-Sea1-Beach elements of the code, there could be a question as to what the law
means. In that case, it might be more important to follow the City Council's interpretation so
that the City will be applying its rules in a uniform and consistent manner. He noted there's a
difference between procedure and substance.
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Commissioner Dahlman asked a question about the ten pie-shaped lots, asking if the Assistant
City Attorney is recommending giving out ten Variances'? Mr. Colantuono said if there's a 300
lot subdivision and in that subdivision there are 6 or 18 lots which had odd configurations and
can't easily conform to the setbacks, he didn't see any reason why the Commission would deny
a Variance just because there's 18' out of 300. However, if there were 250 irregularly shaped
lots out of 300 lots and the Commission felt the standards were burdensome, the solution is to
fix the standards and make them realistic. What the Commission is looking at is the distinction
between a special privilege and a unique hardship.
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Mr. Colantuono said there's a distinction between expressly permitted uses, when only a
building permit is needed, and conditionally permitted uses. The law recognizes that certain
uses are appropriate in certain areas, such as churches or schools in residential areas, but those
uses raise the kinds of issues which should be looked at on a case-by-case basis through a
Conditional Use Permit. The use is permitted conditionally, upon conditions established by the
City. The unclassified uses in the municipal code are CUPs by another name. They are not
assigned to any particular district and can go anywhere in the City but it's essentially the same
process, you get the permission to do it subject to conditions necessary to protect the public
health, safety and welfare.
Commissioner Orsini asked if a church in a residential area would need a CUP if they're using
a school's property'? Mr. Colantuono said that would depend on what the City's ordinance says.
(Tape cuts out at this point).
Mr. Colantuono talked about non-conforming uses, noting the law typically does two things to
a non-conforming use: (1) it requires to eventually to be brought into conformance with the law
after the expiration of a reasonable amortization period. What constitutes a reasonable
amortization period is a tough call; (2) the law says it will not allow an owner to renovate,
improve or expand this use because we want it to wear out and be torn down and we want it to
comply with the code some day. So, people who own non-conforming properties typically have
a relatively limited right to do anything with that property. The code will control what they can
do.
Commissioner Law asked that if when the property sells again that they bring the property up
to code at that time'? Mr. Colantuono said that's done in some circumstances. The law requires
that the owner get all the benefit of the value they had before the City changed the rules. If all
of that value is used up, at the time they sell the house, that would be defensible. But because
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Page 7 - City of Seal Beach Planning Commission Minutes of March 9, 1994
properties are sold at different times, it's hard to say that as a general rule that works.
Commissioner Law said that at least the money would be available at that time to do the work.
Mr. Colantuono said that's why policy makers often choose that date because it doesn't put a
burden on somebody who's not already dealing with the transaction and make a decision on how
to use the property. The legal test is have you allowed them to recoup their investment in the
property? Have you allowed them to absorb all of the benefit of what they had before you
changed the rules? (Chairman Dahlman is talking but not into the microphones and cannot be
heard). Mr. Steele said there are quite a number 01 diflerent strategies across Californialor
dealing with non-confonning uses. As Chainnan Dahlman indicated, there are number 01
communities that are dealing with blight problems, where any change at all to a non-
confonning use triggers a requirement to bring that non-confonning use more into
confonnance, or totally into confonnance. Speaking on the amortization period and the
detennination 01 what the amorti1Jltion period is lor requiring a particular type 01 use to be
brought into compliance, that's an issue that will be coming before the Commission in a
couple olweeks. It's an issue that there's always a great deal oldebate over. Thelactors that
go into detennining what is an approprillte amortiZAtion period are widely varied in each case.
It's difficult to state lor the Commission what a bright line rule is lor detennining what that
amortiZAtion period should be. The Commission will be laced with detennining what amount
olinveftment the property owner has in that particular property, whether it's in improvements,
or business good will, sentimental value in a residential use, all different kinds 01 values have
to go into detennining what kind 01 inveftment that property owner has in the property.
Appraisers and realtors will state it will take "X" number olyears to get that value out olthe
property. That's the kind 01 basis the Commission wUI be looking at to detennine a
amorti1Jltion period. When applicants have taken amortizotion periods to court, the cases are
all over the map. It's difficult to make a certain judgement on what kind 01 an amortization
period to impose in the kinds of cases. So the Commission should be prepared lor the lact
that it's a confusing issue.
Mr. Whittenberg commented on the provisions to the non-confonning ordinance. The City's
ordinances allow lor nonnal maintenance and some minor improvements to existing properties
without having to come into full compliance with, primarily, the City's parking provisions.
Those guidelines were developed by the Planning Commission and City CouncU after a number
01 joint study sessions. These study sessions went very well, providing good infonnation lrom
the public that the CouncU and Commission could use in instructing stoflon how to lonnulate
the municipal Code provisions. Agreeing with Chainnan Dahlman, Mr. Whittenberg said the
ordinances have allowed property owners to do certain things they would like to do without
having to go to lull compliance. The City has reached a good accommodotion to this issue.
Mr. Steele laft-jorwarded the video tape. He reviewed certaln issues:
Vested Riehts Doctrine. When you are a property owner, and you've made an
application lor a particular use on your property, you've been issued a building pennit
and you've made a substantial .financial expenditure in property improvements, the
Vested Rights Doctrine says the City can't change the rules on you. The City can't un-
Page 8 - City of Seal Beach Planning Commission Minutes of March 9. 1994
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approve it with a different type of legislation. Considerable controversy exists on what
is a substantial financial expenditure. Hard costs (foundations) venus soft costs
(architects, law yen, accountants). Land Use law has deak with this through
development agreements. Development agreements are a way of providing a celtain
kind of vested right for both the City and the property owner because it guarantees
what the rules are going to be lor a certain amount 01 time. This Planning
Commission has seen development agreements in which the City retained the right to
change some 01 the rules but the key rules, upon which the project was based, were
guaranteed by the agreement.
Mr. Steele commented on Conditional Use Pennits, noting he will comment on the
nexus. Nexus is a connection between the condition that's imposed and the burden
that's being created on the public heakh, sofety and welfare. For example, on
tonight's resolution for the Radisson Hotel's controUed access beverage cabinets, the
Commission said the cabinets would have to create celtain signs. In the Commission's
judgement they are saying there's an impact on the public's heakh, sofety and welfare.
There's a danger that minon are going to try to use these cabinets, therefore, let's
impose a condition that deals with that problem; that's the nexus between the condition
and the problem.
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TAPE FAST FORWARDED TO THIS POINT ... Mr. Colantuono said the Fifth
Amendment to the United States Constitution provides that the Government cannot take
private property for public use without due compensation under law. That's known as
the Takings Clause. Takings law arises in two contexts: (1) when the Government
physically takes your land by taking it. For example, when the Government damages
your property by failing to inspect a dam and it floods your property. If the Government
physically takes somebody's property they are either going to sue us or the Government
is going to take it by Eminent Domain, a different process; (2) Regulatory takings arise
when a regulation is imposed which is so onerous that it does not allow someone a
reasonable use of their property. For example, a regulation will be found to take
property such that you have to pay damages, reimburse them for the lost value. If it
lacks a legitimate public purpose, such as not allowing the sale of books on Main Street
because we're a narrow-minded town and we don't like books. That's not a proper
public purpose and if there's a net economic burden on the property because of that rule
they can censure us on that. The real issue is are you denying somebody all viable
economic use of their property. This tends to arise when a property is particularly well
suited for only one use. The last idea, is that when you take something from someone,
like regular fees or exactions such as Quimby fees (parkland exactions), the law requires
you to show that what you're taking from them is closely related to the burden they are
imposing on the public by virtue of their activities. If they build houses and bring people
in who use the parks, and over-burden City parks, then you can force them to pay for
that privilege.
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Page 9 - City of Seal Beach Planning Commission Minutes of March 9, 1994
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HIERARCHY Mr. Colantuono pointed out what the hierarchy of authorities is. The
highest authority is the Federal Constitution Takings law, the next level is the State
Constitution, which governs everything we do unless the Federal Constitution says
otherwise. Below the State Constitution, but on the same level, are two bodies of law -
-- the general law of the State of California and the City Charter. If the subject at issue
is a municipal affair, as opposed to a matter of State-wide concern, the City Charter
controls. If the subject matter is of State-wide concern, State law controls. Determining
what is of State-wide concern and what's a municipal affair is nearly impossible. The
courts have not given coherent guidance. The City Attorney will tell the City we're a
Charter city and we don't have to follow that law or this law applies to us. For example,
the Subdivision Map Act has been held by the courts to apply to Charter cities; many of
the State land use laws do not apply to Charter cities like Seal Beach. Below those is
the City municipal Code, our ordinances. Below that Code are policy directives of the
City Council. Below that are policy directives of the Planning Commission.
THE BROWN ACT. Mr. Colantuono said the Brown Act is the open meeting law of
the State of California. The basic idea is that all meetings must be open and public. It's
a crime to make a decision in closed session without proper legal authority. The frrst
question is "What's a meeting that has to be open and public?" A meeting happens when
a quorum, three Planning Commissioners, meets together and deliberates and takes action
on the business of the Planning Commission.
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Commissioner Sharp asked about using the telephone'? Mr. Colantuono said if there's
a conference call with three Commissioners on the line, that violates the Brown Act.
Commissioner Sharp asked about daisy-chain telephone calls in which something is
decided on the phone? Mr. Colantuono advised there's a State Attorney General opinion
that that constitutes a daisy-chain meeting. As far as the principals are concerned it
clearly does violate the idea that the public should have an opportunity to participate in
your affairs.
Chairman Fife asked what the concept of deliberation embraces? He felt that if three
people talked, hear each other's views, modify each other's views with their comments
and get to a point where they are ready to make a decision but in their minds they didn't
deliberate. Mr. Colantuono said this is a slippery area. It makes him uncomfortable
when someone raises an issue in the Oral Communications part of the Agenda, and the
issue is not on the Agenda, and the person is told no decision may be made but dialogue
takes place. And if you follow the conversation clearly you can get a sense of where the
Commission is going --- it comes close to deliberation but it's not clearly deliberation
particularly if the Commissioners are not talking to one another. A good rule of thumb
is that three Planning Commissioners should never be together except at Noticed
meetings. Commissioner Sharp asked what about a special City event? Mr. Colantuono
said that one city puts two members of their Commission at one table, two at another
table and one at another table. Chairman Fife noted also that when there's a break in
a meeting, a cluster of people may form. They may be talking politics or something that
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Page 10 - City of Seal Beach Planning Commission Minutes of March 9, 1994
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came up in the Planning Commission meeting. Mr. Colantuono said the law does not
say the five Planning Commissioners can't get together. The law specifies the five
~lanning Commissioners can't get together and deliberate about City business. The point
Mr. Fife was making is that it appears there may be deliberation about City business and
gives the appearance of a violation and it may be prudent to avoid even the appearance
of a violation. Now, if you want to have a dinner to honor an out-going member of the
Commission and you all want to sit at the same table "I suggest that you post an agenda.
The City of Beverly Hills meets in a study session for two hours, they have dinner for
two hours and they meet in a formal session for two hours. They post an agenda that
lists all that and if you want to show up in an expensive restaurant and join them for
dinner you can do that ... and it is in full and fair compliance with the law and all it
costs you is some secretarial time".
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Commissioner Campbell asked if it would be a Brown Act violation if, for example,
a vote is taken, a recess called and as the Commission is walking out they discuss the
issue they just voted on? Mr. Steele said yes, technically it is. The Brown Act,
regarding deliberations of a public body, covers a vote, a commitment to vote, or any
discussion of a matter that is before that public body. It's a grey area because there's
a chance the issue may come back before the Commission, such as the Radisson Hotel.
You are technically discussing public business. Mr. Whittenberg added his concern
that the Planning Commission may have tIlken an action on a matter, adopted a
Resolution, there may be an appeal filed that the Commission may not be aware of, it
goes to the City Council and the Council refers the matter back to the Commission to,
perhaps, hear new testimony. Mr. Steele said he would not go as far as Mr.
Colantuono went, to say thatfive Planning Commissioners cannot be in the same room
together, but his rule of thumb would be that if you're together and you're not on the
Record at a public meeting, you beUer be talking about baseball or the weather. In the
next few months you wiU find the Brown Act one of the hot issues with the news
media.
Mr. Colantuono said that for the Planning Commissioners to protect themselves from
accusations that something looks bad, its a useful practice to agendize these things.
Chairman Fife said accusations are one thing but supposing three or more Commissioners
or Councilpersons were together at a golf tournament and had an opportunity to
deliberate but no one knows for sure if they did deliberate. Then shortly thereafter some
type of action is taken and those three people vote the same way on the issue. Is there
any legal presumption that there's a violation of the Brown Act in that context? Mr.
Colantuono said no, there are no presumptions that apply, it would have to be proven
from the evidence. The example given would constitute circumstantial evidence that a
violation occurred. If a violation does occur there are a variety of penalties and remedies
that can be applied. The City can be forced to cure the violation. Typically what the
City Attorney does is agendize the matter for the next meeting, discuss it anew and
decide it anew.
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Page 11 - City of Seal Beach Planning Commission Minutes of March 9. 1994
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Commisrioner Soukup said he could see the reasons lor three people but wouldn't two
people talking City business be just as damaging as three? Mr. Steele said the line is
drawn and it's no longer a quorum, it's a mojority of the body. There are many bodies
in State government that define their quorums differently than a mojoriJy. The line is
drawn there because there's a possibility, when you reach that point, that an action will
be taken or that commitments will be made to take an action outside the Public
Hearing. q two members get together and make a decision as to which way they are
going to vote on something, they still have to come into an open meeting and convince
one more member to vote your way. There's still a process of public deliberation that
has to be done. One loophole in the Brown Act was no prohibition on a particulllr
official using an intennediary to go and talk to the other members. The new Brown
Act prohibits that, there can be no communication outside the public meeting either
through an intennediary or through any means of technology. (Chairman Dahlman
talked off microphone and could not be heard). Mr. Steele commented on the concept
of taking action under the Brown Act, which is voting, committing to vote or
deliberating specific policy on issues that are coming before you. q it's purely a
procedural matter or questions of how is the Agenda structures, the Commisrion's are
free to have communications on those type of issues. The Brown Act prohibits
deliberative types of actions.
.
Commisrioner Law asked if an outsider called a Planning Commisrioner trying to
persuade them to their views? Mr. Steele said that would be a violation of the Brown
Act only if the Plllnning Commisrioners aib the caller to be an intennediary and talk
to all the other Commission members. It becomes a problem in the due process
procedure, in giving the applicant or the public a fair hearing on the project. The
Commisrion's responsibility is to take evidence that's presented on the Record at a
Public Hearing, nowhere else, and to base its decision on that. The applicant has a
right of rebuttal. One of the things that has been happening at the Seal Beach
Plllnning Commisrion meetings is, once the Public Hearing has been closed, a
Commisrioner will say "I got a telephone call on this issue and that phone call said ---
"; this disclosure should be made during the Public Hearing so the applicant has a
chance to respond.
Mr. Steele said "Your question was what kind of abuse during the public meeting do
Commisrioners have to take from members of the public, and threats and those kinds
of things." Mr. Steele said that within the context of public .participation at open
meetings, the Commissioners should know there's a limit to the public's right of
participation at public meetings. This is not a public forum, like a soap box in a park
where anyone can come and say whatever they want for as long as they want to say it.
The law considers this meeting room a limited public forum, meaning the City can
impose reasonable time, plllce and manner restrictions on the public's conduct within
the Council chambers. The Chairman has the right, within the confines of the Brown
Act, to maintain control of the meeting. When persons become disruptive in meetings,
that testimony is profane, obscene or offensive, provided that it's not offensive because
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they're criticizing what you're doing, you can cut that testimony off and have those
people removed from the meeting room. City bodies have an inherent right to control
the conduct of their own meetings,. the public business has to get done.
.
Mr. Steele said the amendments to the Brown Act were sponsored by the newspaper
industry to take care of what they felt were serious loopholes in the original Act. They
enlisted the help of StIlte Senator Koff. For over one year the League of California
Cities and the County Supervisors Association of California worked with the newspaper
publishers crofting this law to achieve requirements everybody can live with. The City
is required to post an Agenda for your meetings 72 hours in advance. You can't
discuss or take action on anything that doesn't appear on the posted Agenda unless you
. are able to make a finding that a need to take action arose after that 72 hour period
began. There are a couple of new requirements for Agendas. One is the body must
take an action to approve its Agenda at the beginning of each meeting. So, if there are
Commissioners who believe a certain item should be moved around or removed from
the Consent Calendar, that's the time to do it. It then sets the Agenda for the entire
meeting. There is also a new requirement that requires stricter compliance with the
Consent Calendar. We don'tfollow the Consent Calendar process in Seal Beach very
much. The Consent Calendar is meant as an administrative tool. There are a lot of
actions that don't require much discussion you take one vote and either adopt or deny
an entire Consent Calendar. The Planning Commission wUl have to begin complying
more with nonnal Consent Calendar provisions. q there are three or four resolutions
to be adopted, and they are agendized on a Consent Calendar, you now begin to take
one vote on all the resolutions unless a Commissioner or member of the public asks for
an item to be taken off the Consent Calendar and put on the regular agenda. Another
change to the Brown Act is that it now specifically applies to City boards and
commissions. It used to say "legislative body" and was interpreted and assumed to
mean bodies such as the Commission, with policy-making and quasi-judicial authority.
It is now specifically stated that it applies to boards and commissions. The Brown Act
now applies to newly elected members of legislative bodies, so if there are new City
Council members elected and prior to the time they are sworn in, the Brown Act
applies. In the past, three new members of a city council were elected and they started
having meetings on their own, before they were swom into office. The Brown Act
didn't apply to them and they could hold their meetings in private. That loophole has
been taken away. A meeting is now considered "a congregation of a majority of
members", the quorum requirement is no longer there. There are new sections that
provide Commissioners may attend social gatherings of general interest and that more
than a majority of the Commission may attend as long as no City business is discussed.
Therefore, the five Commissio~ers may sit at the same table but limit discussion to non-
City matters. Commisrioners can now attend community meetings which are not
organized by the body. The public has a right to audio tape and video tape meetings
within reasonable Umits. The other Brown Act changes are more technical and more
applicable to the City Council. Mr. Steele did not review the Closed Session
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.
requirements.
There has been controversy, over the last couple of years, regarding the attorney-client
privilege and its applicability to agencies and bodies of city governments. Can an
attorney give his client, the Planning Commission, conjidential advice that was not
accessible to the public? In Robens v. City oJ Palmdale. the court offinned that the
attorney-client privilege was not offected by the Brown Act. The argument had been
that the Brown Act says meetings and discussions must be held in open session,
therefore any advice a City Attorney gives a City client has to be given in open session
and no conjidentioJ memoranda or letters can be supplied to City officials, Planning
Commissioners, City Councilpersons. The California Supreme Court disagreed with
that argument and has now reoffinned that that privilege applies. Upon accepting a
conjidentialletter or memo from the City Attorney's Office the recipient acquires a
fiduciary responsibility to protect the conjidences of the City and to avoid waiving the
City's attorney-client privilege. This is very important because in nonnal situations you
may have one attorney and one client.
.
Mr. Colantuono criminal penalties only arise when action if action is taken. He read the
statute; Mr. Steele advised this is the criminal penalty for the violations of the Brown
Act. There is injunctive relief and procedures by which decisions made by the
Commission in private can be nullified. If you obtain confidential information (tape
cannot be heard). Mr. Colantuono explained the purpose of each component. A Public
Hearing is typically opened by the Chairman, declaring the Public Hearing is opened and
that's when we know on the Record when the meeting begins. The Chairman states the
purpose of the hearing and requests a report from the City Clerk, in this case it would
be from your secretary. The Clerk will report that the Notices required by law have
been given, report on any written communications received and identify same. The
Mayor can direct that affidavits and Notices be made a part of the Record, but if this is
neglected, they will be made a part of the Record legally anyway. Typically, the Mayor
will request reports from staff and staff will give the reports. This also constitutes a part
of what you are going to decide your decision on. At that point it is appropriate to invite
public testimony. If a lot of people want to speak, the procedure typically is to hear
from the applicant first, because they have a due process right to be heard, people in
favor, people opposed and applicant's rebuttal time. When an enormous crowd is
present, the Commission may select one speaker in favor, then one against. Chainnan
Dahlman said it has been the practice to have the stoff report prior to officially opening
the Public Hearing. Mr. Steele said it won't be necessary to change this, and noted
this is Mr. Colantuono's preference rather than a legal requirement. As a matter of
law, the written stoff report, which comes in with your Agenda packet, becomes a
record of the hearing. So all of the material in the written staff report becomes part
of the record of the hearing. There's generally two question periods, one to clarify
issues from the staff report and this is not part of the Public Hearing. Another which
is part of the Public Hearing. Commissioner Soukup asked about petitions presented
during the Public Hearing but not verbalized for the applicant's knowledge. He asked
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.
if there are provisions that these be retul out loud now? Mr. Steele said as long as the
information that comes in printedlonn is something the Commissioners have seen, it's
up to the Commissioners to decide what weight to give each piece 01 evidence. There's
no particular rule on this.
.
Mr. Colantuono said the Commission should allow the applicants to rebut if they wish
to do so. Chairman Fife asked if the general policy in place now should continue? That
is, the applicant speaks first, followed by those in favor, then those against. But also be
capable of, on an individual matter, shift to the for-and-against format because of the
potential size of the body of speakers? Mr. Colantuono said he didn't see there would
be a problem with this. He added that if there is an adopted set of procedures those
should be followed. And if there is not an adopted set of procedures the Commission
is probably operating under Roberts Rule of Order, in which case the Chair has a great
deal of discretion. The Chair, unless overruled by three members of the Commission,
can do pretty much what he deems appropriate under the circumstances. Adopting
Roberts Rules saves a commission the trouble of thinking of everything because he's
thought of everything. There's a great deal of flexibility but the legal consensus is that
the applicant have a fair hearing and that people who are concerned about the project
have a reasonable opportunity to be heard. Mr. Steele said the Commission should
know that the latter system is the system that the City 01 Seal Beach operates under,
there are no lonnal rules 01 decorum as many cities have tulopted lor conduct 01
Planning Commission meetings or Council meetings. It's at the discretion olthe Chair
as lar as limiting debate or setting time limits or exactly how the flow 01 a Public
Hearing goes. One tulvantage is, if you have a light agenda, but there is a particular
issue many people want to discuss you are not rushed by the press 01 time, as setting
three minutes per speaker. Also, you can impose a reasonable time limit if there is a
large number 01 persons wishing to speak on an issue. A distulvantage is there must
be a conriderable amount 01 discretion by whoever is controlling the meeting as lar as
when to cut people olf. The Chair often has to come 011 as the heavy in that situation.
Commissioner Soukup asked if the Chair, as part 01 his discretion, could decide to
operate by Roberts Rules 01 Order at the beginning 01 the meeting? Mr. Steele did not
know if the City actually adopted Roberts Rules of Order. Chainnan Dahlman said
Roberts Rules does contain a provision lor suspending the rules. Mr. Steele said it's
an accepted procedure to 10Uow the basic principles 01 Roberts Rules and not the letter
01 Roberts Rules.
Mr. Colantuono spoke on findings and said special privilege is the flip side of special
circumstances. You can use the same evidence in the same type of conclusions. Because
there is special circumstances there's no special privilege. Because there are no special
circumstances, granting a Variance would be a special privilege.
Mr. Colantuono spoke on conflicts of interest saying that most of the law pertaining to
conflict of interest comes from the Political Reform Act of 1974. It has two implications
to the lives of public office holders: (1) you must flle annual statements of economic
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Page IS - City of Seal Beach Planning Commission Minutes of March 9, 1994
.
interest which disclose to the public where you get your money from, where you own
your house and what kind of property you hold. This allows people to evaluate whether
of not you should be participating in particular decisions given what's at stake for you
personally. (2) Section 87-100 of the Government Code provides no public official, and
the Planning Commissioners are public officials, "... shall make, participate in making,
in any way attempt to use his official position to influence, a government decision in
which he knows, or has reason to know, he has a financial interest". If a decision will
make a material fmancial effect upon a Planning Commissioner then hel she should not
participate or appear to participate. Some Commissioners choose to stand down during
discussion of that item less there be any question that they participated. You should not
do any "arm twisting" in the hallways, you should make any telephone calls, you should
not speak to the applicant, you should do nothing. When do you have a fmancial
interest? The statue says you have a financial interest if "it is reasonably foreseeable that
the decision will have a material financial effect distinguishable from its effect on the
public generally on the official or a member of his family. Or, on a business in which
he invests, on real property which he owns, on a source of income exceeding $250 in the
past year". Commissioner Sharp said he and Commissioner Law represent Leisure
World, although he represents College Park West also. When issues regarding Leisure
World come before the Planning Commission should they step down because all property
owners have a share of stock in the Golden Rain Foundation which controls the streets
and public buildings. Mr. Colantuono advised that it would be safer to step down. He
advised them not to participate in decisions which affect the Golden Rain Foundation or
Leisure World without seeking advice from the City Attorney's Office first. Also, if it
affects a business in which you are an officer, an employee or a manager, or if it affects
someone giving you gifts totally more than $250 in the past twelve months you cannot
make decisions that affect them. He said the Commissioners should be cautious about
accepting kindness from strangers because it might be necessary to step down if decisions
affecting them come forward. The single, most common circumstance in which a
Planning Commissioner has to step down is when helshe lives close to a project.
.
Mr. Colantuono spoke on a regulation of the Fair Political Practices Commission which
is used to determine when your house if close enough to a project that you shouldn't
participate. In theory this only applies to homeowners and not to people who rent
because reriters don't have property that's impacted but, if you are a renter it would be
a good idea not to participate because it would affect you differently than most other
people. The basic idea is that if you own property within 300' of the subject site. You
should remove yourself unless the decision will have no financial effect on the official's
real property interest. The City sends Notices are mailed to property owners within 300'
of a site, and if a Commissioner shows up on a Notice that Commissioner should not
participate. You are on a Notice list because the City thinks you should care about this
decision.
.
Page 16 - City of Seal Beach Planning Commission Minutes of March 9, 1994
.
Mr. Colantuono suggested, as a rule of thumb, a Commissioner not participate when
his/her name is on a Notice list without consulting with the City Attorney's Office first.
If a Commissioner lives more than 2500' away from the property it's a very rare
circumstance where a Commissioner should refuse himself by virtue of the fact hel she
owns property. Odds are it would not affect that property so that helshe should step
down. If you are in between 300' and 2500' you can probably participate. The rule
here is, will it have an impact on your property in excess of $10,000 on the fair market
value or $1,000 on the annual rental value? Chainnan Dahlman said it would be
difficult lor every Planning Commissioner because Seal Beach is a mudl town. A half
mile, or the 2500', is a whole district except lor a smaU perimeter 01 it. "This is
absurd, this is mad hatter time, for this rule, which is intended for a huge city, to be
applied in a town 0126,000. In Leisure World especially. They have been totally
disenfranchised by the interpretation Mr. Colantuono just gave to Mr. Sharp's
question. q they have anything that they care about over there, then they expect to be
represented. The legal ann 01 the City is teHing them that they are not represented and
cannot be. It just doesn't make any sense". Mr. Steele said he agree to a certain
extent. The problem to be faced with the Political Refonn Act and with the decisions
01 the Fair Political Practices Commission are two-fold. AU the rules are bright line
rules. Either you're within 2500' or you're on the other ride of 2500' and there's not
much room lor interpretation. One 01 the issues the City Attorney's Olfice discussed
was an exemption for cities 01 smaUer populations lrom the 2500' rule. Such an
exemption is available but the problem is Seal Beach doesn't fit within the category 01
that exemption. Part 01 the reason for the bright line rules, and they are State laws,
is theoretically to make it easier lor olficials to comply. It doesn't help us in situations
like Seal Beach where the rules ought not to apply. But if you read the rules in a
bright line, black and white sense they do apply. The second problem is the penalties.
The penalties lor violation 01 the Political Refonn Act, in tenns of personal liability 01
the decision makers and the problems it creates for the City, are quite significant.
When you're talking about invalidation 01 actions, criminal liability on the part 01 the
decision maker, civil liability, Jines and disqualification from office, it's hard not to
take a very hard line on interpreting the various provisions 01 the Political Relonn Act.
.
Mr. Steele commented on conflict 01 interest by saying Mr. Colantuono mentioned
calling the City Attomey's Olfice for advice of afonnal opinion on conflict of interest
issues. Mr. Steele said if a Planning Commissioner thinks he or she has a conflict of
interest he would encourage them to caU the City Attorney's OIJice or go through Mr.
Whittenberg because they want to deal with problems before they happen. However,
the City Attomey Olfices' opinion, although based on experience and knowledge in this
area, don't necessarily shield a Commissioner lrom liability in tenns 01 violation of the
Political Relonn Act. q there are situations where there is a significant possibility that
you may have a conflict of interest but you "aUy want to participate, the City
Attomey's Office wiU encourage you to seek a lonnal opinion lrom the Fair Political
Practices Commission which wiU give you immunity. q the FPPC says there is no
conflict olinterest under lacts, a Commissioner participates with no fear of prosecution
.
Page 17 - City of Seal Beach Planning Commission Minutes of March 9, 1994
.
of violation of the FPP Refonn Act. He said the Commissioner's should be aware that
the statement of legislative purpose appearing in the Government Code regarding the
FPP Refonn Act is that it is directed at dealing with impropriety in government decision
making and the appearance of impropriety. q the rules are open to interpretation,
then the violation is open to interpretation. q the rule is black and white, and either
you fall inside or outside the rule, there is no real interpretation involved and there's
less chance that there will be an appearance of impropriety because you're relying on
a shaky interpretation to avoid various provisions of the FPP Refonn Act.
Additionally, Mr. Steele said the periodfor fllingflnancial disclosurefonns ends April
1st. Regarding sources of income, the Commissioners should look at any single payer
that puts more than $250 in your pocket per year. For example, one Southem
California city isfacing a significant lawsuit because a Councilmember accepted a $300
loan from a city employee and then participated in a vote to tenninate that employee's
employment; that was a conflict of interest. You must look at your employer, your
spouse's employer, community properly interest. For example, Mr. Steele's wi/e works
for Aarco and i/ a matter came before the City in which Aarco was an applicant, he
would have to look at that to see what the impact on Aarco would be because his wi/e's
income is a source of income to him. You must also look at your children's income
as immediate family income is a source of income to you as an offlcial. Commissioner
Soukup asked what if you have a business on Main Street and you're making decisions
on Main Street in general? Is it foolish to want to take part in politics at that point?
Mr. Steele said he wouldn't get into the foolishness of it but the rule is very clear,
where there's an impact then a business owner would have to abstain from certain
decisions. Commissioner Soukup, referencing the example of a loan from a city
employee, asked it was immoral for a city employee to make loans to Commissioners
or Councilmembers? Or, is it that a loan is not income because its being paid back.
Mr. Steele said the end of that story was the councilmember then paid the loan back
and the city is waiting for a year to pass between the time the loan was made and a
year subsequent so that vote can be taken again because that councilmember will no
longer have a conflict of interest. It's only at that point that the employee's damages,
as far as lost income, wiU be stopped. The moral is "Neither a borrower or a lender
be".
.,~
- ...,
Mr. Steele said the Rule of Necessity arises when there are so many conflicts of interest
on a board or commission that there aren't enough people to vote to make a decision.
This happens frequently, more often than expected. The Political Refonn Act sets up
a system whereby straws are drawn among the disqualified commissioners to detennine
who's going to participate on that issue. Only enough people qualified to vote are
brought back to give you the minimum number of people necessary to make the
decision. The City of Seal Beach's municipal fJ1d.I. requires three qf./innative votes,
therefore, only three Commissioners would be qualified. If a unanimous vote could
not be obtain that measure would fail.
.
Page 18 - City of Seal Beach Planning Commission Minutes of March 9, 1994
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Regarding ex parte communications, Mr. Steele said he has had this discussion with
the Commission previously. He is always happy to discuss the way to disclose ex parte
communications and Jact that any evidence gathered should be gathered Jrom the
public Record.
.
Regarding the Pennit Streamlining Act, Mr. Steele gave the JoUowing over view. On
the video tape, the discussion centered on a particular project and became very Jact
specific. He JeU it's more beneficial to give a general over view. The Pennit
Streamlining Act is a mechanism devised by the State legislature devised to make sure
applications Jor discretionary land use approvals are not unnecessarily delayed in the
approval process Jrom city or county government or environmental review process. The
Pennit Streamlining Act's basic premise is that once applications Jor particular types
oj pennits are submitted and once the City has considered those applications to be
complete, the applicant has a right to have the City take a final action tifter
consideration, on those projects within a specified period oJtime. The process is, the
applicant makes an application to the City. Staff has thirty (30) days to notify that
applicant whether or not the application is complete. Ifincomplete, stqfJmust teU the
applicant why it's incomplete and give him specific direction as far as making the
application complete. Once complete, the City must approve or deny the project within
ninety (90) days if the project is exempt Jrom the California Environmental Quality
Control Act (CEQ,4) or within ninety (90) days of the adoption oj a Negative
Declaration lor the project. If there's an Environmental Impact Report (EIR)
undertaken lor a project, once that EIR is certified then the City has to consider the
project and take action within six (6) months. The City has a certain time period to
certify the EIR. AU 01 these deadlines may be extended once with the applicant's
consent. The City has no independent discretion to extend the deadlines itself. If the
City fails to meet the deadlines Jor taking a final action under the Pennit Streamlining
Act, the consequences are very severe. PrQ/ects where final decisions are not rendered
within those deadlines are deemed 4DProved bv'the Pennit Streamlining Act. Thefinal
action the City needs to take during that specific time period is adoption oj a resolution
by the Planning Commission. This action gives rise to an appeal right and to the right
oljudicial review. The actual adoption ola resolution with specific findings on which
the decision is based is the operative decision lor purposes oj the Pennit Streamlining
Act. The Act only applies to quasi-judicial matters, which is mostly what the Planning
Commission sees before it. So a Conditional Use Pennit (CUP) or a Subdivision Map
request is subject to the Pennit Streamlining Act and could be deemed approved if the
delay is too long. However, legislative matters like Zone Changes or General Plan
amendments are not subject to the provisions of the Pennit Streamlining Act and those
are not deemed approved if they take longer to consider. Commissioner Campbell
asked if applications lor a remodel or new construction would not be oflected? Mr.
Steele said yes, as long as it's a discretionary pennit. Commissioner CampbeU asked
about the recent Planning Commission hearing on Ruby's restaurant on the pier. It
was a landlord-tenant situation where Ruby's is the tenant. The tenant came forward
with the request. Usually tenants don't make improvements, its usually the property
.
Page 19 - City of Seal Beach Planning Commission Minutes of March 9, 1994
.
owner or lDndlord who makes the improvements. This lDndlord- tenant relationship
becomes importllnt because the City 0/ Seal Beach is the lDndlord in this case. She
asked how is last week's discusrion and decision of/ected when the City is the landlord
and the PlDnning Commisrionen represent the City? Mr. Steele said he did not want
to get into a specific discussion 0/ Ruby's restaurant because il's not on tonight's
Agenda. From a purely Pennil Streamlining Act perspective, the identity 0/ the
applicant or the legal status 0/ the applicant, as long as they have the legal authority
to make that application, is not significant. It doesn't have an impact on the land use
decision. As long as the application is being made by someone who has the authority
to make the application then the City has a duty to make those decisions wilhin the
time the Pennil Streamlining Act sets out. Commisrioner OunpbeU said the Ruby's
restaurant matter went before the City Council last week and asked Mr. Steele to
comment on that. Director Whittenberg said Mr. Steele did not attend that City
Council meeting and il would be more appropriate lor him to comment. The initial
authorization lor the application to be filed was signed by the City Manager. So
Ruby's Inc. had City authority tofile the application. At the City Council meeting the
City Manager wilhdrew that authorization based on the testimony and concerns
expressed. At that point there was no authority lor the application to proceed funher.
Commisrioner Soukup asked what would happen if the applicant decides to postpone
his application/or a couple o/weeks? Is the clock still ticking? Mr. Steele said if the
applicant requests a delay, then the applicant can consent to that extenrion o/time that
the Pennit Streamlining Act aUows. Commisrioner Soukup said Ruby's did request a
delay but stoff didn't count it that way and got the Commisrion confused. He added he
didn't appreciDte that. Mr. Whittenberg said he doesn't like dealing with a past
application but in this case the City asked lor the continuance because it had not
obtained necessary infonnation from the Depattment 0/ Fish & Wildlife which was
requested the Planning Commission. Prior to that, when this application was
continued, the City asked/or that because the City didn't have adequate project plans.
.
Regarding CEQA, Mr. Steele gives an over view 0/ CEQA and said he would like to
reserve this topic lor another meeting, allowing a more substantive CEQ/l workshop.
There have been significant amendments to CEQIl that the City Attorney's Office
would like to cover in more detail.
Regarding penonal liability 0/ public officials, Mr. Steele said it could be almost
guaranteed that any public official wiU be threatened with a lawsuit or actually sued
because 0/ an action you've taken as a public official. Mr. Steele reassured the
Commisrionen that absent willful, malicious or grossly negligent conduct by you
penonally, there's little likelihood under the law that you wiU ever have imposed any
penonalliability lor actions you take as a Planning Commisrioner or any other public
body as a public official. Most often you hear about lawsuils lor defamation. During
the coune 0/ a meeting a Commissioner may have said helshe didn't like a paTticular
project or you didn't like the way an applicant was conducting him/henelf. You will
then hear defamation threats. Statements made during a public meeting, by law, are
.
.
.
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Page 20 - City of Seal Beach Planning Commission Minutes of March 9. 1994
absolutely privileged. This is an effort by the legislature and the courts to protect the
free discourse of ideas during public meetings. You. cannot be held personally liable
for defamation for statements made from the dias. He added a caveat, cautioning the
Commissioners from feeling over confidant by that privilege that you're not cognizant
of what you're saying in certain circumstances. There should be a bottom line
standard of not being malicious. He did not know of a lituation where a public official
has been held liable for defamation per se but there's a fair possibility that if there
were malicious personal statements made that weren't really in the course of the
meeting or public business that there's a possibility some liability could be imposed on
that basis. There's also a slight possibility that Commissioner's could be held
personally liable for a civil rights violation. While civil rights violations are thought
of in the Rodney King example, they can take other fonns. For example, Federal law
prohibits a denial of any person's constitutional rights under the color of State law -
in the course of making it an official State law decision. For this Planning
Commission's pU1poses this might come about in a limited lituation where you denied
a patticular pennit, application or project without "'fording the applicant fuU due
process rights. q you had a project come before you and you were so sure this thing
was never going to fly, and you decided there was no need for a Public Hearing or
testimony, and decided you were going to deny it you would hear an outcry from the
Director and City Attomey. The significant Commissioner concems regarding personal
liability are in the areas discussed - violations of the Brown Act, violations of the
Political Refonn Act. These areas are self-policing and Commissioners must keep track
of your own conduct and make sure you're complying with those areas of the law
because there is very gpecific criminal and civil liability for knowing and willful
violations. A Commissioner may make a very minor infraction of the Political Refonn
Act, such as checking the wrong box on afonn; it'sjust a mistake. You won't have
liability for that. But, if you knowingly conduct a seriatim meeting, in violation of the
Brown Act, there will be liability for that. He said he rarely knows when a member
of a commission, with which he lits, has a conflict of interest. It's easy for him to tell
that member if s/he has a conflict of interest once he's given the facts, but he wouldn't
know if not told the facts up front. Please remember to think about Brown Act issues
and Political Refonn Act issues and feel free to ask the City Attomey's Office or Mr.
Whittenberg questions. Try to avoid problems before they start.
[Emphasis Added]
There being no other questions from the Commission, a recess was called at 9:30 p.m.
The Planning Commission reconvened at 9:45 p.m. with all members, except
Commissioner Sharp, present.
ORAL COMMUNICATIONS
There were no oral communications from the audience.
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Page 21 - City of Seal Beach Planning Commission Minutes of March 9, 1994
STAFF CONCERNS
Minor Plan Review #93-8 * 1113 Ocean Avenue. Seal Beach
Mr. Curtis said staff is concerned about Minor Plan Review #93-8 which came before
the Commission at their frrst January meeting. The applicant, at 1113 Ocean Avenue,
asked to build at 60 square foot laundry room. He subsequently came back to the City
requesting enlargement of that area to 108 square feet. The additional 48 square feet is
to provide a bicycle storage area for his tenants. Staff has provided a revised Plot Plan,
showing the approved and the proposed project. It will not impact site parking and will
be within the allowable addition percentage. Stafr s intent is to issue this permit unless
the Commission has strong concerns. If there are strong concerns, staff will agendize
it for a formal hearing at the next meeting.
Chairman Dahlman said he recalled his prior remarks that this is a "model application"
because the applicant is bringing the project closer to municipal ~ requirements in
the process. He has ten uncovered parking spaces for four units. Mr. Curtis said the
current proposal will not violate setback requirements. It will not expand or creating any
non-conformity. Mr. Whittenberg said it's a non-material change which does not
decrease the number of parking spaces, or add any additional non-conformities.
Commissioner Soukup asked staff what the definition is of "habitable space"? Mr.
Whittenberg said it's 70 square feet with a minimum ceiling height of 6'6". This project
would exceed those requirements but it does not meet the requirements for insulation.
There are other construction requirements which apply to it besides the square footage
and height.
Chairman Dahlman indicated the Commission had no objection to issuing a permit for
the additional square footage.
***
COMMISSION CONCERNS
(Transcription by Commissioner Campbell)
Planning Commission Meeting. March 9. 1994
Commission Concerns
Comm. Campbell: When we were discussing Ruby's, you said several times that it's not the
responsibility of this Commission to enforce the terms of the agreement.
Whose responsibility is it to enforce the terms of the agreement?
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Page 22 - City of Seal Beach Planning Commission Minutes of March 9, 1994
Mr. Steele:
Ultimately it is the City Council's responsibility to enforce the City's
contractual obligations and the benefits which flow to the City from all of
its contracts. In certain cases though, that responsibility is delegated to the
City Manager; in other cases it is delegated to the City Attorney; but
those three entities, if you will, are those persons who are responsible for
protecting the City's contract rights.
Comm. Campbell: My next question concerns the appropriateness of us knowingly, approving
something that is in violation of the contract. How do you feel on the
appropriateness of that?
Comm Soukup: Would there be negligence there']
Mr. Steele: If I thought there was anything that was being approved that was in
violation of the lease or which was not a matter which could be
renegotiated as part of a larger lease renegotiation, we would certainly
step forward and caution you against that. However, in this situation, with
the Commission making purely land-use decisions, with an application that
had to go to the City Council after the Commission made the
consideration of land use decisions, it was entirely appropriate for the
Commission to make its decisions and move the matter forward.
Comm. Campbell: So you are saying it would have been appropriate for us to knowingly
approve something that was in violation of that agreement.
Mr. Steele: What I am saying is it would have been appropriate to approve the land
use decisions as part of an overall City consideration of this matter which
included consideration by the City Council and by direction to the City
Manager to make certain renegotiations in the lease.
Comm. Campbell: Wheri we are aware that a State agency has concerns, that to me, takes it
beyond that. Now we have to act with this information and knowing that
the State agency has concerns, how does that change the character of the
decision?
Mr. Steele: I'm not certain that it does change the character of the decision. I said
from the beginning that I believe that the City had complied with the lease
with regard to notice to the State and I still believe that and that the City
has no responsibility to protect the lessor's rights under the lease
agreement. And I don't know of anything that was proposed or that was
before you that would have constituted a violation of the lease agreement.
Comm. Campbell: Well, essentially, knowing that the State had concerns about that the lease
holder wanted to do, I felt it was inappropriate to approve something
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Page 23 - City of Seal Beach Planning Commission Minutes of March 9, 1994
Mr. Steele:
Comm. Campbell:
Comm. Dahlman:
Comm. Soukup:
Mr. Steele:
Comm. Soukup:
Mr. Steele:
Comm. Soukup:
when we know that a State agency, that we had an agreement with, had
reservations. That was our concern.
I understand the concern, and with all due respect, I disagree with the
concern.
I still will not make decisions that will knowingly violate what I perceive
to be an agreement.
Any other Commission Concerns'?
We just had a nice presentation with respect to our duties here and how
we get information and what's part of the record and what isn't, and what
kind of advice we can get and receive, how we're supposed to view that,
and with the Streamlining Act of the permit processing and the 90 day
window of opportunity to make a decision. In the last instance we had a
situation that dovetailed to where the City was making an application for
a tenant. We had real concern about other plans. There was a motion on
the floor to continue it, to explore it further. But the 90-day clause got in
the way, and we had to make a decision. If we didn't make the decision,
it would have automatically been approved. In this case, it couldn't have
been approved if the City's making the application. But the City Council
has to make the fmal recommendation, so I think the whole thing about
the 90 days in streamlining, was not appropriate with this case in mind
and I feel that that type of information that we get from the Staff or from
the City Attorneys is sometimes not clear and may be incompl~te. What
is a Commissioner supposed to do if he's totally confused'?
Well, I would hope that you would feel that you can rely on the legal
advice I have discussed that issue with the City Attorney. We both believe
that the advice that was given at the Commission meeting was correct.
So in other words, if we decided to postpone, the 90 days would have
expired, therefore the application would have been deemed to be
approved, so you're saying the City can go around the City Council if it
was handled that way -- it can go around itself.
I don't understand what that means.
Well, if the City made the application and the 90 days expires before the
decision is made by the Planning Commission, ergo, the application is
approved. But that can't because only the City Council can approve public
lands, so the whole thing doesn't make any sense.
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Page 24 - City of Seal Beach Planning Commission Minutes of March 9, 1994
Mr. Steele:
I think there's an assumption, or a couple of assumptions there that I
would disagree with. One is that the nature of the City's relationship
with the proprietor of the restaurant. Somehow reduces Ruby's rights
under the Permit Streamlining Act. I still believe that the Permit
Streamlining Act applies to that particular decision and that the 90-day
period is a right of the applicant and in this case the applicant was
technically the City, the other applicant also had Permit Streamlining
rights.
Comm. Dahlman: Maybe one of the issues that comes up here and makes it a little
confusing is the fact that the proprietor of the restaurant, not owning
the premises, was making an application to modify the premises, there
was significant construction. And wouldn't that be analogous to my
putting in an application to remodel my next-door neighbor's house
even though I don't object it. And what business do I have coming here
with my project on my next door neighbor's house.
Director Whittenberg:
I think there's a different circumstance altogether. As I indicated
earlier, the City Manager signed the application on behalf of the City
authorizing he application to be fued. As would be the case if you went
to your next-door neighbor and wanted to do some work on his house
and he authorized the ruing of the application. It's a totally different
situation.
Comm. Soukup:
So why couldn't the City then just extend the time period because the
City wouldn't have any necessary purport to have it passed outside the
City Council.
Director Whittenberg:
You're dealing with a situation that does not occur on a regular basis
where there are two tenants that the City has at the end of the pier. The
City determined to authorize the signing of the application so that a
public input could be sought regarding the proposal by the tenant of
that property. It was not the City's desire to proceed if the public input
in the determination to the City indicated that it was not something that
should proceed forward. That was a decision for the applicant to make,
which was Ruby's, and if they wish the matter to be continued they
would have had to given us something in writing and say very clearly,
and indicate that they did not want the matter continued.
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Page 2S - City of Seal Beach Planning Commission Minutes of March 9. 1994
Comm. Soukup:
Director Whittenberg:
Comm. Soukup:
Director Whittenberg:
Comm. Soukup:
Director Whittenberg:
Well during that time period there was a continuation. You stated
earlier that the City asked for that. As I remember, there was a change
in the plans that had to be done because of some information brought
forward from outside sources, so Ruby's had actually asked for the
extension. Therefore it would be logical to extend it for those two
weeks if they asked for the extension.
If I might, we asked for the extension as Staff, because the plans that
had been initially submitted, based on previous discussions with the
Coastal Commission, we knew would not be able to even be
considered by the Coastal Commission. So it was the City's request at
that point.
So the permit then wasn't complete so therefore the clock would start
later.
The permit was deemed complete in December. Once you deem the
application complete you have a specified period of time to make a
decision regardless of if there are continuances in the middle of that
process whether additional adjustments are being made. At the time an
application is deemed complete, all you are doing is ensuring that the
application form has been filled out correctly, the fees have been paid, the
mailing list has been provided to the City and a certain number of sets of
plans have been provided to the City. That's what constitutes a complete
application. And in some cases there might need to be an additional study
for environmental review. Those are the only things that are required to
deem an application complete. Once that application is under review with
the modifications made to the plan based on public input and concerns,
that's a process that is after the fact of the application being deemed
complete.
How is it that the applicant in this case, the way it's been defined, has the
right to 90 days in Streamlining Act, but doesn't have the right to appeal?
How do you justify those two totally polarized view points?
Again, as I indicated earlier, the ultimate authority to tile the application
the City Manager. He is authorized to sign applications on behalf of the
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Page 26 - City of Seal Beach Planning Commission Minutes of March 9. 1994
City based on the public input that was received at the Planning
Commission level and concerns that were expressed at the last Council
meeting. He took the action which he is authorized to do of withdrawing
his approval for the application to proceed. That's his legal prerogative
under the provisions of the code of the City that he is authorized to take
those actions pursuant to City Council instructions.
Comm. Soukup:
So where were the tenant's rights in all of this?
Director Whittenberg:
The tenant's rights are based on the approval of his landlord to do
something to the property. If the landlord does not approve it, he d~sn 't
have a right at that point.
Comm. Soukup:
The landlord could have extended the 90-day process if he had wanted to.
Director Whittenberg:
I think we're getting into some areas that I'm not sure it's going to do you
any good .
Comm. Dahlman: In some ways that application was unique and in others it wasn't. I do
think we need to look at procedure here every now and then because if we
don't look at it every couple of years it gets .... we just need to look at
it. But it isn't unusual, especially in Old Town and Main Street to see
applications coming here from people who are not the owner. Another
area where that frequently happens is in the trailer park. So I think
somehow that needs to be addressed, probably at the City Council level,
as to how we're going to handle things. There are a number of changes
in various laws that have pretty much tied our hands in ways that they
weren't tied before. For example, (holding up a copy of some plans) can
this room could be made habitable? We may know the applicant and
know it's not going to e a problem, but if he sells it, then the person
buying it inherits this approval. These kinds of things we need to address
and maybe we need to change our procedures or change the City Code.
But these are things that need to be looked at down the line.
Comm. Soukup:
I concur with you.
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Page 27 - City of Seal Beach Planning Commission Minutes of March 9, 1994
The Commission sent its wishes to Commissioner Sharp for a good and speedy recovery.
ADJOURNMENT
Chairman Dahlman adjourned the meeting at 10:30 p.m.
Respectfully Submitted,
&~~
Jo Fillmann
Recording Secretary
APPROVAL: The Planning Commission Minutes of March 9,\ 1.9~4 ~ere approved by
the Planning Commission on March 23, 1994.~