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HomeMy WebLinkAboutCC Min 1987-12-21 l2~7-87 / l2-2~-87 removing the amortization period for such satellite dish antenna, noting however that new installations would be required to meet Code. Council referred this matter to the staff for report. I Councilman Grgas requested that the Public Works Department investigate if the phasing of the traffic signal at Pacific Coast Highway and l2th Street could be improved. ORAL COMMUNICATIONS There were no Oral Communications. CLOSED SESSION There was no further Closed Session held. ADJOURNMENT Grgas moved, second by Wilson, to adjourn the meeting at 10:18 p.m. AYES: Clift, Grgas, Hunt, Risner,' Wilson NOES: None Motion carried and ex-off' ~o clerk of the City Council I Attest: ~IJ)~'~~ '" Mayor \ ?JJJ 1 Clerk Approved: Seal Beach, California December 21, 1987 The City Council of the City of Seal Beach met in regular session at 7:02 p.m. with Mayor Wilson calling the meeting to order with the Salute to the Flag. ROLL CALL Present: Mayor Wilson Councilmembers Clift, Grgas, Hunt, Risner Absent: None Also present: Mr. Nelson, City Manager Mr. Stepanicich, City Attorney Mr. Joseph, Assistant City Manager Mr. Knight, Director of Development Services Mrs. Yeo, City Clerk I WAIVER OF FULL READING Clift moved, second by Hunt, to waive the reading in full of all ordinances and resolutions and that consent to the waiver of reading shall be deemed to be given by all Councilmembers after reading of the title unless specific request is made at that time for the reading of such ordinance or resolution. 12-&87 AYES: NOES: Clift, Grgas, Hunt, Risner, Wilson None Motion carried ORDINANCE NUMBER 1255 - NONCONFORMING DISASTER CLAUSE Ordinance Number 1255 was presented to Council for second reading entitled "AN ORDINANCE OF THE CITY OF SEAL BEACH AMENDING THE ZONING REGULATIONS PERTAINING TO THE RECONSTRUCTION OF DAMAGED OR DESTROYED NONCONFORMING BUILDINGS, AND AMENDING THE CODE OF THE CITY OF SEAL BEACH." By unanimous consent, full reading of Ordinance Number 1255 was waived. Clift moved, second by Hunt, to adopt Ordinance I Number 1255 as presented. AYES: NOES: Clift, Grgas, Hunt, Risner, Wilson None Motion carried ORDINANCE NUMBER 1260 - PLANNING COMMISSION TERMS Ordinance Number 1260 was presented to Council for second reading entitled "AN ORDINANCE OF THE CITY OF SEAL BEACH LIMITING THE NUMBER OF CONSECUTIVE TERMS FOR PLANNING COMMISSIONERS AND AMENDING THE CODE OF THE CITY OF SEAL BEACH, CALIFORNIA." By unanimous consent, full reading of Ordinance Number 1260 was waived. Hunt moved, second by Risner, to adopt Ordinance Number 1260 as presented. AYES: NOES: Hunt, Risner, Wilson Clift, Grgas Motion carried ORDINANCE NUMBER 1261 - ESTABLISHING ZONING REGULATIONS - CONDOMINIUM CONVERSIONS Ordinance Number 1261 was presented to Council for second reading entitled "AN ORDINANCE OF THE CITY OF SEAL BEACH ESTABLISHING ZONING REGULATIONS FOR THE CONVERSION OF EXISTING APARTMENTS INTO CONDOMINIUMS AND AMENDING CHAPTER 28 OF THE CODE OF THE CITY OF SEAL BEACH, CALIFORNIA." By unanimous consent, full reading of Ordinance Number 1261 was I waived. Clift moved, second by Grgas, to adopt Ordinance Number 1261 as presented. AYES: NOES: Clift, Grgas, Hunt, Risner, Wilson None Motion carried ORDINANCE NUMBER 1263 - REGULATING WHEELED DEVICES - SHOPPING AREAS Ordinance Number 1263 was presented to Council for second reading entitled "AN ORDINANCE OF THE CITY OF SEAL BEACH REGULATING WHEELED DEVICES IN SHOPPING AREAS AND AMENDING THE CODE OF THE CITY OF SEAL BEACH." By unanimous consent, full reading of Ordinance Number 1263 was waived. Clift moved, second by Hunt, to adopt Ordinance Number 1263 as presented. AYES: NOES: Clift, Grgas, Hunt, Risner, Wilson None Motion carried RESOLUTION NUMBER 3750 - HONORING DAVID LEE PARKS - EAGLE SCOUT AWARD Resolution Number 3750 was presented to Council and read in full by Mayor Wilson entitled "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEAL BEACH, CALIFORNIA, HONORING AND I COMMENDING DAIVD LEE PARKS FOR ACHIEVING THE BOY SCOUTS OF AMERICA EAGLE AWARD." Risner moved, second by Grgas, to adopt Resolution Number 3750 as presented. AYES: NOES: Clift, Grgas, Hunt, Risner, Wilson None Motion carried Mayor Wilson presented a copy of Resolution Number 3750 to Mr. Parks who was present in the audience. 12-21-,'8'7 I CONSENT CALENDAR - ITEMS "F" AND "G" Clift moved, second by Hunt, to approve the recommended action for items on the Consent Calendar as presented. F. Approved regular demands numbered 68266 through 68295 in the amount of $569,730.82 and payroll demands numbered 28251 through 28421 in the amount of $282,690.07 as approved by the Finance Committee and authorized warrants to be drawn on the Treasury for same. G. Denied the claim for damages of Robert E. Greenwood and referred same to the City's liability adjuster. AYES: NOES: Clift, Grgas, Hunt, Risner, Wilson None Motion carried I ADMINISTRATIVE and LEGAL ANALYSIS - INITIATIVE MEASURE "A" The City Manager presented a preliminary staff analysis of Initiative Measure "AR as requested by Council, explaining that until further determinations of the legal aspects of the Initiative can be clarified, it is difficult to foresee all of the administrative impacts. He noted that it is apparent that in order to carry out the intent of the Initiative, changes will be required of the decision making and application processes, as well as to overall Codes, rules and regulations governing the operation of the City. Mr. Nelson stated that it has been concluded however that if adopted, the Initiative will create a considerable increase in workload with a corresponding increase of staff costs, adding that it will be necessary for the staff to extensively utilize the services of the City Attorney and the Council to clarify and implement the intent of the Initiative. He advised that a more indepth staff analysis will be forthcoming, and recommended that all information materials relating to the Initiative be made readily available to the public. The City Attorney's report, setting forth a legal analysis of Initiative Measure "AR, was presented to the Council, detailing the various sections and subsections of the Initiative Ordinance, followed by their analysis of each section, as well as a compilation of exhibits pursuant to references contained within the Initiative Ordinance. Mr. Stepanicich stated that a thorough review of the Ordinance had been made, however the report has focused on the most significant issues raised by the Initiative, and offered to address further questions that may be forthcoming from the Council at a future date. I The City Attorney presented an overview of each section of the Initiative Ordinance commencing with Article III, Section 1, Parkland/Public Lands, noting that the actions of the Council over several months have complicated this particular section. He stated that when the School District owned the Zoeter site in its entirety, it was clear there was a conflict with the Seymour Act, an opinion that still stands even though the School District no longer has the same interest in the property. He noted a particular problem with regard to Parcel A of the site is that the Redevelopment Agency is now in escrow to purchase that property from the School District, and that the Agency has entered into a lease with a commitment of the lessor to develop a commercial use on that property in accordance with the commercial zoning, the City having gone through the steps under the Seymour Act to provide the appropriate 12-21-87 zoning as requested by the School District. He clarified that if Parcel A were to be designated as parkland, that would prevent the carryout of the lease and the Agency from satisfying it's obligations under the purchase agreement with the School District. He advised this could result in the property reverting back to the School District, thus the provisions of the Seymour Act again coming into play and further, that a similar situation could occur with Parcel B. with regard to Parcel C, Mr. Stepanicich stated it is understood that that property has been sold to a private party by the School District, and could quite likely be rezoned parkland, the private property owner then having a parcel of land which could no longer be developed as residential, thus the likelihood of a lawsuit from that property owner against the City for loss of economic use. He stated there is still question as to whether the Initiative would continue to apply to surplus school property since the law is clear in California that zoning is considered a legislative action that is subject to initiative, however the provisions of the Seymour Act impose specific duties upon a City as to how it can zone surplus school property. In response to the Council, the City Attorney explained that the purchase price or value of Parcel A was premised upon the commercial zoning and the term of the lease contingent upon building permits being received by the lessee, therefore if building permits could not be issued, that would effectively thwart implementation of the lease. The effect therefore would be that the City would again own the property, without the ability to obtain another commercial lessee, nor could the property be sold to another for commercial fair market value, the property then having the value of parkland, therefore the likelihood of the property reverting back to the School District. He stated his belief that Gemte1 would have the ability to conclude the lease agreement since the term would not commence if building permits could not be issued, and that it is unknown whether Gemte1 would commence an action against the City for any losses they may incur. The City Attorney advised that the analysis has not addressed whether or not the City could be liable for the $300,000 discounted price for the property where the preschools currently exist if Parcel RA" were to revert back to the School District. Councilman Grgas stated his understanding that the alternatives would be that the City would either be required to purchase Parcel RA" at a cost of $1.9 million for parkland use, or return the property to the School District who, in turn, could sell the property to a developer for commercial use. The City Attorney clarified that if the Initiative were adopted and the Zoeter property were determined to be zoned parkland, it is most likely that there would be a legal action forthcoming from the School District to require the City to rezone the land in accordance with the Seymour Act. The City Attorney referred to Section 2 of Article III relating to the Department of Water and Power property and the referenced Specific Plan, and stated that while a Specific Plan is a legislative document and subject to initiative or referendum, the Initiative Section refers to the amendment of a number of sections of the Specific Plan without stating in the Initiative itself what those sections provide, which brings forth the question as to whether or not that is proper notice to the voters as to what is actually being voted upon. He advised that an opinion was not given as to the validity of those amendments, however issue has been raised as to whether or not an Initiative Ordinance may amend other existing plans, ordinances, or resolutions of the City while only referring to a section number as opposed to the content of such section. I I I l2-2l~87 I The City Attorney stated it is felt that Section 3 of Article III, Mandatory Referendum, is a key provision of the Initiative Ordinance. He recalled a question raised previously by a member of the Council with regard to a mandatory two-third voter approval requirement for any action of the Council relating to quasi-public land, and that the legal opinion at that time was that such proposal would require a Charter revision. Mr. Stepanicich stated that the Initiative, as an Ordinance, is attempting to amend the Charter or restrict the powers and requirements imposed by the Charter, therefore it is believed that Section 3 is not a valid provision. He explained that the Section provides that any property that is classified as parkland, open space, or quasi-public land use under the General Plan of the City, or such property owned by the City classified as public land use, may not be changed to another land use nor may the City enter a planned development agreement unless two-thirds of the qualified electorate of the City vote on the measure and approve same. He noted that under the Charter, the powers of City government are given to the City Council, except as otherwise provided by the Charter, therefore with respect to matters relating to the General Plan or zoning changes the ultimate decision is a legislative act to be made by the City Council with no need to present such actions to the voters. He explained further that under sections of the Charter dealing with elections there are provisions for initiative, referendum, and recall pursuant to the California Elections Code, under which there is no provision for mandatory referendum nor two-thirds voter approval, although Election Code Section 4017 allows the City Council to place a matter on the ballot for approval by the voters, requiring a majority vote. He concluded that Section 3 interferes with the powers granted to the City Council for making land use decisions, and conflicts with the manner in which elections are held and how matters are submitted to the voters under the Elections Code. With regard to whether or not there was an analysis of the potential for the City to be financially liable for damages in the event there was an alleged taking of property rights in the case of a two-thirds voter approval not being obtained, the City Attorney advised that such analysis had not been done since it was felt that Section 3 was clearly invalid, and again referred to the previous memorandum which addressed this issue, which he advised should be updated to reflect any recent court decisions. As to the sequence of events should a legal challenge be brought forth, the City Attorney advised that a lawsuit could be instituted to prevent the election from taking place, or could be filed after the election if the Initiative were approved, challenging the Initiative Ordinance and its legality, either the entire Ordinance or particular provisions thereof. He advised that the City would be obligated to defend the Ordinance with regard to having taken an action to place the item on the ballot and further, should it be approved, the City would be obligated to defend the Initiative Ordinance since it would then be a law of the City. He noted that in terms of defense of the City, since the City Attorney's office has issued an opinion as to the validity of the various provisions of the Ordinance, the City would most likely have to retain outside counsel for defense purposes, specifically of those sections that have been determined to be invalid or possibly invalid. In response to the Council he explained that there is an obligation under the Elections Code to place the Initiative on the ballot unless it is clearly determined that the Initiative is illegal, and in this particular Ordinance there are sections that are valid, invalid, questionably valid, the Ordinance also providing for a severability I I l2-2~~87 ~ clause, therefore it is difficult to foresee how a court of law would construe the Ordinance and whether or not it would sustain one or more of the provisions. He clarified that the Ordinance will be considered by the voters in its entirety. Mr. Stepanicich referred to Section 4 relating to trees or urban forests standing on public or quasi-public land, requiring that no tree that meets the requirements may be cut or removed without the City first obtaining the written affirmative recommendation of the Chairman of the Department I of Forestry at a recognized California University, further requiring that that particular individual must determine that the cutting or removal is necessary for the health and safety of the urban forest and/or the public. He advised that the definition of urban forest is unclear as to whether the intent is to include trees of ten or more years or not, noting that the key problem that is seen with Section 4 is that it delegates to a private individual the power to make a decision that ultimately should only be made by the City, and in this case, the City can not make a decision without the affirmative recommendation of the Chairman of the Department of Forestry at a recognized California University. The City Attorney stated that it is their determination that this provision is an impermissible and invalid delegation of powers that should be exercised by the City Councilor a body or public official designated by the City, and noted further the lack of standards that are given to the private individual to make such decisions. He clarified that this provision would apply to the City's public land and therefore interferes with the City's ability to maintain, cut, and remove trees when necessary for safety purposes, however also effects trees on privately owned land, again for which a permit could not be issued without the written consent. He added that a number of cities have adopted tree ordinances with decisions left to the Council I or the Planning Commission and include exceptions for emergency conditions, however stated their office is unaware of any ordinance that has delegated the entire decision making process to a private individual. He advised that it was their determination that a court would not hold this provision to be valid, however clarified there is an absence of cases on this point. Mr. Stepanicich noted that should this section be adopted and determined valid, it would surely increase the liability potential for the City. The City Manager added that the University of California, Berkeley, and California State University, Humboldt, have Departments of Forestry, also pointed out possible situations that could occur where there is a delayed response or lack of response on the part of the individual that must make such approvals. He noted that the Ordinance makes no provision for how the approving individual would be retained. In response to Council, the City Attorney confirmed that the City could expand definitions of the Ordinance so long as such definitions are consistent with the provisions of the Initiative Ordinance. The City Attorney reported their determination that Section 5 re1aing to streets poses the same problems as does the mandatory refenendum provision, requiring two-thirds voter I approval, removing the power of the City Council to make decisions as granted by the City Charter, and further, conflicts with the State Elections Code. He advised there remains a number of questions as to how this provision would be interpreted and applied, noting that under existing law when there are street improvement proceedings which are adopted by Ordinance, that type of ordinance is not subject to referendum. l2-21-87 I * The City Attorney advised that Section 6, relating to building heights poses confusion and it is basically felt that the purpose of the Section is something that would be subject to initiative or referendum. He clarified that the Section refers to an Ordinance which has subsequently been superceded, also with regard to the referenced thirty-five foot limit, he explained that there is a twenty-five foot limit for residential and thirty foot limit for commercial in District One, with thirty-five feet allowed only on the rear portion of the larger lots in the High Residential Zone, therefore the intent of the Initiative Ordinance is unclear as to whether it increases height 1imitiations, is an incorrect reference to what the height limitation is in that zone, or if it is intended that the thirty-five foot limitation could never be exceeded. The City Manager noted that under this Section there is another potential for legal action resulting from a dispute that could arise through interpretation by staff versus a building permit applicant. The staff clarified that the intent of the Initiative Ordinance is to apply to Planning District One only. The City Attorney noted that the wrong Ordinance is again identified under Section 7, the RCP Zone having been replaced by the CP Zone and the one-third parkland setaside revised to a 70/30 ratio. Mr. Stepanicich reported that Article IV of the Initiative changes the parking standards of the City, specifically noting reference to the definition of restaurant versus tavern, and although it may have some far reaching impacts, it was their feeling that this provision would be within the power of the voters to approve, the only question would be whether or not the provision, stating there could be no exceptions, would be enforceable in all cases in the future. He noted that Section 2 of the Article provides an exemption for existing commercial properties in a commercial use at the time of enactment of the Ordinance as long as the commercial use is not intensified and existing parking is provided on-site. He clarified that a recourse, if it were felt that certain parking requirements were overly restrictive, would be that the provision is arbitrary and beyond the City's police power, or more importantly that due to a particular shape of a property it may be impossible to provide such parking and still have some economic use of the property. He added that in the case of a transfer of ownership, parking would be allowed to remain as it exists as long as there is no intensification of use, and noted further that under the Initiative Ordinance a restaurant going from no liquor license to beer and wine would be an intensification, however it is unclear if that would apply to a beer and wine license being expanded to all beverages. The City Attorney advised that by merely reading Section 3 of Article IV one would not know the impact of this provision, the Code sections being repealed dealing with common parking facilities that are shared by businesses, therefore the question again becomes whether the Section is valid since it is not apprising the voters as to what is being repealed. He added that the more troublesome provision is the deletion of variance provisions, which would eliminate the possibility of variances being granted under the zoning Ordinance, and although research has shown that there are no cases that require a variance procedure be included for a Charter city, it would be their opinion that in trying to implement and enforce the Zoning Ordinance in the future there would be an entire series of potential problems forthcoming by not having a variance procedure, and I I l2-21-87 noted that there are cases in California over a number of years that say a variance procedure is necessary to avoid hardships, taking of property, etc. The City Attorney advised that based upon the provisions of the existing lease of the pier restaurant by Ruby's, Section 4 of Article IV of the Initiative would have no effect at the present time and would most likely be a valid Section. Mr. Stepanicich reported that Section 5, dealing with improvement of property to the fullest extent possible, does I have far reaching implications, and while it may be a valid provision that could be adopted, it is difficult to determine what the full ramification may be, and that they did not attempt in this report to deliniate all of the Code provisions that would no longer be applicable. He stated there is a question as to what is meant by existing property, that the wording of the Section is ambiguous, the ramifications far reaching, and cited as an example that the City's Zoning Ordinance for setbacks would no longer apply and would be deferred to the Uniform Building Code, the requirements of which are far less. He stated that Article V of the Initiative Ordinance provides a simplified disaster clause from that recently adopted by the City Council, and would be a valid provision for adoption by the voters. The City Manager questioned the provisions of the previous Section 5 requiring compliance with UBC versus the absence of such reference in Article V. The City Attorney advised that it would be construed that compliance with the UBC would be required since that is State law. Mr. Stepanicich referred to Article VI, enforcement and abatement, Section 1 making reference to Section 3479 of the California Civil Code which merely defines a nuisance in general terms, and that it is their feeling that the City's ordinances would be consistent with that definition and that this Section would not have any legal impact. He added that Section 2 provides a remedy for enforecement of the Ordinance, making reference to injunctive and declaratory relief, where it would ordinarily be enforced by writ of mandate, and if literally construed it appears to mean a writ of mandate could not be brought. He added that Section 2 further requires a written demand upon the City, made by either a resident or property owner, and stated that this Section imposes requirements to initiate a lawsuit that are not requirements of State law and in fact, deletes the full remedies that are currently afforded, therefore it is felt that this provision is not a valid and enforceable provision of the Initiative Ordinance. The City Attorney referred to Article VII, the savings or severability clause, stating the purpose of which is that if sections of the Initiative Ordinance are declared to be invalid, the remaining sections could continue in effect. He stated their report has outlined the standard rules of the courts, and that it is difficult to predict whether, in this case, a court would sever provisions and find certain provisions valid, or whether it would determine that given the number of invalid provisions, it would reject the entire Ordinance. He added that since there are so many different provisions of the Ordinance, it would be difficult to know if a person voting for the Ordinance voted for what purpose and whether they would have voted for the Ordinance if the provisions that were held to be invalid were no longer within the Ordinance, explaining that the courts in such cases have tended to strike down the entire Ordinance, again I I l2-21-87 clarifying that it would be impossible to predict a court decision on this matter at this time. In reference to the final Section 2, he advised that the Initiative Ordinance could become the prevailing Ordinance with regard to other existing City ordinances, to the extent that the provisions of the Initiative were valid. He also confirmed that the only manner in which the City could amend or repeal any valid provision of the Ordinance would be through a vote of the people. I During further discussion it was again clarified that the Initiative Ordinance could become the prevailing Ordinance with regard to existing City ordinances, however would not prevail in the case of conflict with City Charter, State law, State Constitution, Federal law or United States Constitution, and further, based upon the language of the Initiative Ordinance, would not apply to Specific Plans. Members of the Council asked that discussion relating to Initiative Measure "AR be placed on the agenda for future meetings, and that public comments be allowed. Wilson moved, second by Hunt, to make all reports and information materials regarding the Initiative Ordinance available to the public at a reasonable cost. AYES: NOES: Clift, Grgas, Hunt, Risner, Wilson None Motion carried I APPOINTMENT - PROJECT AREA COMMITTEE Councilman Grgas requested that the District One appointment to the Project Area Committee be held over. CITY COUNCIL ITEMS Councilman Hunt reported that the Friends of the Library have requested the County to an addition to the Beverly Manor Library facility that would be available for use by the Friends. He stated the County has allocated $75,000 towards the estimated $120,000 cost of the construction, that the Friends have raised $32,000 over the past sixty days for that purpose, and are in need of an additional $18,000 to accomplish the project. He asked that this matter be placed on the next agenda for Council to consider a possible donation to that proposed facility, possibly in the area of $3,000. He explained that the building would be owned by and on County land, however would be available for use by the Friends in providing their services to the community. Councilman Grgas requested that the City Manager review the provisions of the existing refuse collection contract to insure that the hour which they commence their colllection is as set forth in the contract and reasonable. Councilmember Risner asked that the City Manager request the Orange County Fire Department to provide Seal Beach with a R213" telephone number for non-emergency calls in order to alleviate the need for a long distance call to reach the Fire Department for local residents. I ORAL COMMUNICATIONS Mayor Wilson declared Oral Communications open. Mr. Danny Reams, Marina Hill resident, spoke regarding City regulations with regard to satellite dish antenna, with specific reference to his problem of having had an antenna installed prior to current regulations and now, with the expiration of the amortization period, by February 1st is required to remove and replace the antenna in another area of his yard and provide screening, all of which, he stated, 12-2l-87 / 1-4-88 will impose considerable cost and inconvenience in addition to costs involved to obtain the necessary reviews and permits by the City. Mr. Reams requested that the Council consider this matter at the earliest date possible. Councilmember Risner noted that she had posed this matter to the Council, suggesting that the amortization period be deleted for those instances where installation was prior to current regulations, that the matter had been referred to staff and that it is anticipated there will be a report before the Council in January. She stated further that she had advised Mr. Reams to apply to the Planning Department for an after-the-fact permit for his satellite antenna. The City Attorney advised that if the satellite dish is non- conforming to existing standards, a permit can not be issued, however if the determination of the Council is that an amendment be made to existing provisions, prosecution of this particular case would be held in abeyance until an action is taken on such amendment, noting that Planning Commmission consideration and action would be necessary since this is a provision of the Zoning Ordinance. The Development Services Director stated that a report could be forthcoming to the Council, after which a referral could be made to the Planning Commission with final action then taken by the Council to delete or amend the amortization period. He noted also that upon the recommendation of the City Attorney's office with regard to this case and other pending Code enforcement issues, the staff is obligated to administer the law as it exists and until amended, noting specifically that Mr. Reams has not yet proven that his installation was prior to existing regulations. The City Manager advised that a report would be forthcoming to the Council. There being no furhter communications, Mayor Wilson declared Oral Communications closed. CLOSED SESSION There was no Closed Session held. ADJOURNMENT Grgas moved, second by Hunt, to adjourn the meeting at 9:04 p.m. AYES: NOES: Clift, Grgas, Hunt, Risner, Wilson None Motion carried /' Attest: Seal Beach, California January 4, 1988 The City Council of the City of Seal Beach met in regular session at 7:00 p.m. with Mayor Wilson calling the meeting to order with the Salute to the Flag. I I I.