HomeMy WebLinkAboutZOA 05-03 EXCEPTIONS 2005 ORDINANCE NO. 1104
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, ADDING CHAPTER 25.112 TO TITLE 25 OF
THE CITY OF PALM DESERT MUNICIPAL CODE REGARDING
EXCEPTIONS BASED.ON UNCONSTITUTIONAL TAKINGS
THE CITY COUNCIL OF THE CITY OF PALM DESERT,
CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Section 25.112 "Exceptions Based on
Unconstitutional Takings" be added to the Palm Desert Municipal Code as
follows:
"Chapter 25.112 Exceptions Based on Unconstitutional Takings.
25.112.1 Purpose
The purpose of this Chapter is to ensure that the application of the
( standards contained in Title 25 Zoning, including the environmental review and
l mitigation process required by the California Environmental Quality Act as
implemented by Chapter 25.88(Environmental Review), to parcels within the City do
not create a taking of private property prohibited by Federal or State Constitutions.
25.112.2 Application and Hearing
(a) Any applicant that contends that the application of the standards of Title 25,
including the environmental review and mitigation process required by the
California Environmental Quality Act as implemented by Chapter
25.88(Environmental Review), will result in a taking of property without just
compensation in violation of the Federal or State Constitutions may apply for an
exception to these standards pursuant to this Section.
(b) The applicant shall provide information that sets forth the basis upon which the
applicant believes that the exception is necessary to provide the property with
economically viable use. This information shall include each of the following:
(1) Basis for application.
A. Date of acquisition of the property;
B. Purchase price of the property; and
C. An explanation of how the exception is necessary to provide the
property with an economically viable use.
CADocummts end Settings\RobcrtHargrwvm\My DocumentAPALM DESERT-Ordinance Re Takings.doc
ry
ORDINANCE NO. 1104
(2) Economic data.
A. Current market value of the property;
B. Dates and amounts of invested capital following acquisition of the
property;
C. Description and amount of each assessment imposed upon the
property for public improvements;
D. Existing activities for the property;
E. Planned activities for the property, including the timing for
development;
F. Market value claimed if the exception is denied;
G. Portion of the property retaining economic use if the exception is
not granted; and
H. Reduced profits if the exception is not granted, including the
assumptions underlying the estimates.
(3) Additional information. Such additional information as the City may
request in order to take action on the request. The applicant shall cooperate with City
requests for financial information regarding the property. Confidential business
information provided by an applicant to the city shall remain confidential consistent with
the requirements of the Public Records Act (Government Code §6250 et seq.).
(4) Consultants and Experts. The name, address and occupation of each
consultant and expert providing information or in any way assisting in the preparation of
the application.
In acting upon an application, the Planning Commission shall consider, among
other matters, each of the following:
(a) Present use of the property and duration of that use, including:
(1) Each general plan designation and zoning classification applied to the
property; and
(2) Each use to which the property was put.
(b) Fair market value of the property before the restriction that is the subject of the
exception application imposed;
(c) Alternate uses that are available for the property; and
CaDocumenls and SettingARobcmHergreavesNy Documcnts\PALM DESERT-Ordinance Re Takings. doc2
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ORDINANCE NO. 1104
(d) The fair market value of the property if the exception is denied.
The Planning Commission shall mak
e its decision based on the evidence presented to
it. The decision shall be in writing with specific findings on the economic impact of the
application of the restriction for which the exception is requested."
SECTION 2. If any section, subsection, sentence, clause phrase or word of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction or preempted by state legislation, such decision or
legislation shall not affect the validity of the remaining portions of this Ordinance. The
City Council of the City of Palm Desert hereby declares that it would have passed this
Ordinance and each and every section, subsection, sentence, clause or phrase not
declared invalid or unconstitutional without regard to any such decision or preemptive
legislation.
SECTION 3. The Mayor shall sign this Ordinance and the City Clerk shall cause
the same to be published within fifteen (15) days after its passage at least once, in a
newspaper of general circulation, published and circulated in the City of Palm Desert,
California. This Ordinance of the City of Palm Desert shall be effective thirty (30) days
after the date of its passage.
PASSED, APPROVED and ADOPTED this 8th day of December, 2005, by the
City Council of the City of Palm Desert, California by the following vote, to wit:
Il AYES: BENSON, CRITES, KELLY, SPIEGEL, and FERGUSON
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
JIM FERG S N, AYOR
ATTEST:
SS
RACHELLE ASJ N, CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
Pcmmts
FORM:
I
I
I
WIN, TYA ORNEY
ttings\Rob argreaves y Documen[APALM DESERT-Ordinance Re Takings. doc3
CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
REQUEST: Consideration of a Zoning Ordinance Amendment adding Section
25.112 regarding "Exceptions Based on Unconstitutional Takings".
SUBMITTED BY: Phil Joy, Associate Transportation Planner
APPLICANT: City of Palm Desert
CASE NO: ZOA 5-3
DATE: November 10, 2005
CONTENTS: Staff Recommendation
Background
Draft Ordinance No.
Draft Planning Commission Minutes
Planning Commission Staff Report
Report from City Attorney
Recommendation:
Waive further reading and pas Ordinance No. to second reading
approving Zoning Ordinance Amendment No. 5-3.
I. BACKGROUND:
On October 18th, 2005 the Planning Commission voted 4-0 (Commissioner
Finnerty absent), recommending approval to the City Council of the proposed
zoning ordinance amendment to the Zoning Ordinance to establish criteria an
applicant must present if a 'takings claim" may be pursued, in order for the city to
consider exceptions to the zoning ordinance.
Submitted By: Department Head:
Phil Joy Philip Drell
Associate Transportation Planner Director of Community Development
Staff Report
City of Palm Desert, ZOA 5-3
Page 2
November 10, 2005
Approval:
Homer Croy, Assistant City Manager for Development Services
Carlos L. Ortega, City Manager
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING AN AMENDMENT TO THE
MUNICIPAL CODE ADDING SECTION 25.112 "EXCEPTIONS BASED ON
UNCONSTITUTIONAL TAKINGS"
CASE NO. ZOA 5-3
WHEREAS, the City Council of the City of Palm Desert, California, did on the 10th
of November, 2005, hold a duly noticed public hearing to a consider an amendment to the
Palm Desert Municipal Code, Section 25.112 "Exceptions Based on Unconstitutional
Takings"
WHEREAS, the Planning Commission by its Resolution No. 2362 recommended
approval of Case No. ZOA 5-3; and
WHEREAS, said application has complied with requirements California
Environmental Quality Act, in that the Director of Community Development has
determined that the project is a Class 5 Categorical Exemption; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and
arguments, if any, of all interested persons desiring to be heard, said City Council did find
the following facts and reasons to exist to justify approval of the amendment:
1. That the amendment is consistent with the Zoning Ordinance objectives.
2. That the amendment is consistent with the adopted General Plan and
affected specific plans.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Palm
Desert, California, as follows:
1. That the above recitations are true and correct and constitute the findings of
the City Council in this case.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert
City Council, held on this 10th day of November, 2005, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
ORDINANCE NO.
BUFORD A. CRITES, MAYOR
ATTEST:
RACHELLE D. KLASSEN, CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
2
ORDINANCE NO.
EXHIBIT `A'
SECTION 1 . Section 25 . 112 "Exceptions Based on
Unconstitutional Takings" be added to the Palm Desert Municipal
Code as follows :
"Chapter 25. 112 Exceptions Based on Unconstitutional Takings.
25 . 112 .1 Purpose
The purpose of this Chapter is to ensure that the
application of the standards contained in Title 25 Zoning to
parcels within the City do not create a taking of private
property prohibited by Federal or State Constitutions .
25 . 112 .2 Application and Hearing
(a) Any applicant that contends that the application of the
standards of Title 25 will result in a taking of property without
just compensation in violation of the Federal or State
Constitutions may apply for an exception to these standards
pursuant to this Section.
(b) The applicant shall provide information that sets forth the
basis upon which the applicant believes that the exception is
necessary to provide the property with economically viable use.
This information shall include each of the following:
(1) Basis for application.
A. Date of acquisition of the property;
B. Purchase price of the property; and
C. An explanation of how the exception is necessary
to provide the property with an economically viable use.
(2) Economic data.
A. Current market value of the property;
B. Dates and amounts of invested capital following
acquisition of the property;
C. Description and amount of each assessment imposed
upon the property for public improvements;
D. Existing activities for the property;
3
ORDINANCE NO.
E. Planned activities for the property, including the
timing for development;
F. Market value claimed if the exception is denied;
G. Portion of the property retaining economic use if
the exception is not granted; and
H. Reduced profits if the exception is not granted,
including the assumptions underlying the estimates .
(3) Additional information. Such additional information as
the City may request in order to take action on the request. The
applicant shall cooperate with City requests for financial
information regarding the property. Confidential business
information provided by an applicant to the city shall remain
confidential consistent with the requirements of the Public
Records Act (Government Code §6250 eq seq. ) .
(4) Consultants and Experts . The name, address and
occupation of each consultant and expert providing information or
in any way assisting in the preparation of the application.
In acting upon an application, the Planning Commission shall
consider, among other matters, each of the following:
(a) Present use of the property and duration of that use,
including:
(1) Each general plan designation and zoning classification
applied to the property; and
(2) Each use to which the property was put.
(b) Fair market value of the property before the restriction
that is the subject of the exception application imposed;
(c) Alternate uses that are available for the property; and
(d) The fair market value of the property if the exception is
denied.
The Planning Commission shall make its decision based on the
evidence presented to it. The decision shall be in writing with
specific findings on the economic impact of the application of
the restriction for which the exception is requested. "
4
CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
TO: Planning Commission
DATE: October 18, 2005
CASE NO: ZOA 05-03
REQUEST: Recommend to the City Council approval of a Zoning Ordinance Amendment to add
Section 25.112
APPLICANT: City of Palm Desert
I. BACKGROUND:
The city attorney has prepared a new section of the zoning ordinance along with a report to set a
procedure for instances where enforcement of the zoning almost entirely eliminates economically
viable use of the property.
II. ENVIRONMENTAL REVIEW:
The application is a Class 5 categorical exemption per Section 15305(Minor Alterations in Land
Use Limitations)of CEQA Guidelines and no further documentation is necessary.
III. RECOMMENDATION:
That the Planning Commission recommend to the City Council approval of ZOA 5-3.
IV. ATTACHMENTS:
A. Draft resolution
B. Legal notice
C. Chapter 25.112, Exceptions Based on Unconstitutional Takings
D. Memorandum from Robert W. Hargreaves, Assistant City Attorney
Prepared by:
Phil Joy
Associate Transportation Planner
Reviewed and App cv d: Revie d and A r ed:
lJ •,�
ilip Drell Homer Croy
Director of Community Development ACM for Development Services
LAW OFFICES OF '
BEST BEST &
KRIEGER LLP
October 7, 2005
MEMORANDUM
To: Honorable Chairman and
Members of the Planning
Commission
Fttom: Robert W. Hargreaves, Assistant City Attorney
RE: Proposed Ordinance Regarding Exceptions Based on Unconstitutional
Takings
RECOMMENDATION
That the Planning Commission recommend to the City Council the adoption of the
proposed Chapter 25.112 regarding Exceptions Based on Unconstitutional Takings.
DISCUSSION
The strict application of the city's zoning standards to particular parcels may, in unusual
circumstances, almost entirely eliminate economically viable use of the property. The severe
impairment of reasonable, investment backed expectations may constitute a "regulatory taking"
of property without just compensation in violation of federal and state constitutions. A court
determination of a "regulatory taking" would likely result in the invalidation of the offending
land-use decision and potentially a damages award against the City.
The proposed ordinance has two functions: (1) alert the City to potential taking claims in
time to make necessary adjustments in project approvals; and (2) set up a defense to taking
claims where an applicant fails to provide sufficient information to substantiate that claim.
The proposed ordinance is intended to provide a safety valve to ensure that the City's
strict application of Title 25 zoning standards does not run afoul of constitutional prohibitions.
In essence, the proposed ordinance requires that an applicant alert the City to a potential taking
claim by providing the City, during the land-use process, with any information the applicant
believes substantiates that claim. Based on the information provided, the City can evaluate its
potential vulnerability to a takings claim. If the City concludes that the strict application of the
zoning standards would cause a constitutional violation, the ordinance empowers the City to
grant an exception to any problematic zoning standards.
Additionally, if an applicant fails to avail itself of the protections of the ordinance, the
applicant would "fail to exhaust administrative remedies" and would likely be precluded from
pursuing a takings claim in court.
Consequently, the City Attorney recommends that the Planning Commission recommend
adoption of Chapter 25.112 to the City Council.
RWH:krg
cc: David J. Erwin, City Attorney
` INo. "75 .--MNANCE NO. 1104
IL OF
THE ORY m-rALM THE
RT• CALIFORNIIA
I ADDING CHAPTER 25.112 Td TITLE 25 O�
CODEREGARDING"CEPTIONS MUNICIPAL
ON
GIT V CLERKS _OFFICE .UNCONSTITUTIONAL TAKINGS
Phi-pjj �Fp
PROOF U UBdeATION Th THE CITY COUNCIL
DOES HE EBY OAO"AIN
((���yyylrla�r(� I�p Ip 1 i AS FOLLOWS i
SECTION SecNan 25.112 'ExagWlons to the
on Unponsthutlonel Teklnpe' be added to the Q
Palm Desert Municipal Code as follows:
' Chaeppter 25.112 Exceptions Bea" on Uncon-
jstlbmonsl Takings.
- {{{{,, p ryos 25.117.1 Purpose 1
r 1.to ensure
C Ea plthe
cation of the le endarda nmental In Titlewe 25
end
44 ZoNyrig Including lh•envlronme9r the
Calif end
STATE OF CALIFORNIA VEmnvlronmenttal Quality Act eeb Prods" implemeelded by
Chapter 25.a8 Environmental Reviewl, to par-
County of Riverside Iry M p
cols within the rphlbn"by Federal of Pit-
or State Ca^-
'vate Property P
atnutione.
26 jj22 gpplleetlan and Hearing
((a) An aPPlicant:that contends that the aPPIIca-
�a) of the standards of Title 25, including the
ttttttS envulron"6yy^fie Oell}omIs EnvlronmeMel Uu vi
I am a citizen of the United States and a resident of {LygAot es hnpto see, Ill
CM1epter 28.89n of
11 ronmentel+Review, wtll result in a teklnp of
the County aforesaid; I am over the age of eighteen I property,wntwul lus�compensation In vloletlly ont f
years,and not a party to or interested in the the,Federal or state Conatnutlone may n 0
an xcePgon to these standards pursues to this
above-entitled matter.I am the principal clerk of a section„ -""�."
at
printer of the,DESERT SUN PUBLISHING �, 'm}onhpfI. bests uapllo pro
Idl theoappllcantlbe-
COMPANY anewspaper of general circulation, "haves that the exception le necessary to 7rovlde
}he Patton a alit ncludeoaech Of viable
toll wing: Im-
printed and published in the city of Palm Springs, a r ,
County of Riverside,and which newspaper has been III) Basle for epPllcafieh.
adjudged a newspaper of general circulation by the l ulsuon of the property,
Superior Court of the County of Riverside,State of A. Date of '_
�B Pur hase price of the Property; and'.
-
California under the date of March 24,1988.Case -
C.An pmvi a th b1 how the with
an ec b micas-
Number 191236;that the notice,of which the jsary to provide the properly with an ecorwmlcalty
annexed is a printed copy(set in type not smaller viabie use.
than non pariel,has been published in each regular J(2) Economic date'
and entire issue of said newspaper and not in any A Currenf market value of the,property;
supplement thereof on the following dates,to wit: $B Dates and amounts of Invested capital tollaw-
Ing acquisition of_ property;. -
December 151h,2005 C Descriptin an o `d amount of a each ssessment
imposed;upon the property for public Improve-
Monte
D. Existing activnles for the Property;,,
E. Planned activities for the property, including
All in the year 2005 .the timing for development;
1 F Market value claimed if the exception Is de-
nied:I certifyor declare under penalty of perjury that the : .. .,:. ,
( ) P Y P 1 Y retaining economic use
foregoing is true and correct G. Portion of the properly
g g n the exception Js not granted and
4s
H Reduced profits n the exception is not grimed.
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CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPOR EIVED
Z005 NOV I l P
REQUEST: Consideration of a Zoning Ordinance mendment adding Section
25.112 regarding "Exc�p hKS Ecngg nWnstitutional Takings".
SUBMITTED BY: Phil Joy, Associate Transportation Planner
APPLICANT: City of Palm DesertMEETING DATE OS
CASE NO: ZOA 5-3 19 CONTINUEDTO_ �
DATE: November 10, 2005 ❑ PASSED TO 2ND READING
CONTENTS: Staff Recommendation
Background
Report from City Attorney
Draft Ordinance No. 1104
Draft Planning Commission Minutes
Planning Commission Staff Report
Recommendation:
Waive further reading and pass Ordinance No. 1104 to second reading
approving Zoning Ordinance Amendment No. 5-3.
I. BACKGROUND:
On October 18th, 2005 the Planning Commission voted 4-0 (Commissioner
Finnerty absent), recommending approval to the City Council of the proposed
zoning ordinance amendment to the Zoning Ordinance to establish criteria an
applicant must present if a "takings claim" may be pursued, in order for the city to
consider exceptions to the zoning ordinance.
The City Attorney has prepared an attached report explaining the proposed
ordinance further, and since the planning commission meeting, he has added
language to include "takings' as a result of a CEQA action. The new language is
reflected in the draft ordinance.
Submitted By: Department Head:
Phil Joy Philip UrVI
Associate Transp rtation Planner Director of Community Development
Staff Report a
City of Palm Desert, ZOA 5-3
Page 2
November 10, 2005
z
Homer Croy, A i nt City Manager for Development Services
Carlos L. Orte , City Manager
LAW OFFICES OF
` BEST BEST & T 4
KRIEGER LLP e
October 7, 2005
MEMORANDUM
To: Honorable Chairman and
Members of the Planning
Commission
FROM: Robert W. Hargreaves, Assistant City Attorney
RE: Proposed Ordinance Regarding Exceptions Based on Unconstitutional
Takings
RECOMMENDATION
That the Planning Commission recommend to the City Council the adoption of the
proposed Chapter 25.112 regarding Exceptions Based on Unconstitutional Takings.
DISCUSSION
The strict application of the city's zoning standards to particular parcels may, in unusual
circumstances, almost entirely eliminate economically viable use of the property. The severe
impairment of reasonable, investment backed expectations may constitute a "regulatory taking"
of property without just compensation in violation of federal and state constitutions. A court
determination of a "regulatory taking" would likely result in the invalidation of the offending
land-use decision and potentially a damages award against the City.
The proposed ordinance has two functions: (1) alert the City to potential taking claims in
time to make necessary adjustments in project approvals; and (2) set up a defense to taking
claims where an applicant fails to provide sufficient information to substantiate that claim.
The proposed ordinance is intended to provide a safety valve to ensure that the City's
strict application of Title 25 zoning standards does not run afoul of constitutional prohibitions.
In essence, the proposed ordinance requires that an applicant alert the City to a potential taking
claim by providing the City, during the land-use process, with any information the applicant
believes substantiates that claim. Based on the information provided, the City can evaluate its
potential vulnerability to a takings claim. If the City concludes that the strict application of the
zoning standards would cause a constitutional violation, the ordinance empowers the City to
grant an exception to any problematic zoning standards.
Additionally, if an applicant fails to avail itself of the protections of the ordinance, the
applicant would "fail to exhaust administrative remedies" and would likely be precluded from
pursuing a takings claim in court.
Consequently, the City Attorney recommends that the Planning Commission recommend
adoption of Chapter 25.112 to the City Council.
RWH:krg
cc: David J. Erwin, City Attorney
CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT .
STAFF REPORT
TO: Planning Commission
DATE: October 18, 2005
CASE NO: ZOA 05-03
REQUEST: Recommend to the City Council approval of a Zoning Ordinance Amendment to add
Section 25.112
APPLICANT: City of Palm Desert
I. BACKGROUND:
The city attorney has prepared a new section of the zoning ordinance along with a report to set a
procedure for instances where enforcement of the zoning almost entirely eliminates economically
viable use of the property.
II. ENVIRONMENTAL REVIEW:
The application is a Class 5 categorical exemption per Section 15305(Minor Alterations in Land
Use Limitations) of CEQA Guidelines and no further documentation is necessary.
III. RECOMMENDATION:
That the Planning Commission recommend to the City Council approval of ZOA 5-3.
IV. ATTACHMENTS:
A. Draft resolution
B. Legal notice
C. Chapter 25.112, Exceptions Based on Unconstitutional Takings
D. Memorandum from Robert W. Hargreaves, Assistant City Attorney
Prepared by:
Phil Joy
Associate Transportation Planner
Reviewed and Apg ov d: Revie d and A r ed:
l/
flip Drell 01 Homer Croy
Director of Community Development ACM for Development Services
ORDINANCE NO. 1104
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF PALM DESERT, CALIFORNIA, ADDING CHAPTER
25.112 TO TITLE 25 OF THE CITY OF PALM DESERT
MUNICIPAL CODE REGARDING EXCEPTIONS BASED
ON UNCONSTITUTIONAL TAKINGS
THE CITY COUNCIL OF THE CITY OF PALM DESERT,
CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Section 25.112 "Exceptions Based on Unconstitutional
Takings"be added to the Palm Desert Municipal Code as follows:
"Chapter 25.112 Exceptions Based on Unconstitutional Takings.
25.112.1 Purpose
The purpose of this Chapter is to ensure that the application of the
standards contained in Title 25 Zoning, including the environmental review and mitigation
process required by the California Environmental Ouality Act as implemented by Chapter
25.88(Environmental Review), to parcels within the City do not create a taking of private
property prohibited by Federal or State Constitutions.
25.112.2 Application and Hearing
(a) Any applicant that contends that the application of the standards of Title 25, including
the environmental review and mitigation process required by the California Environmental
Ouality Act as implemented by Chapter 25.88(Environmental Review), will result in a taking
of property without just compensation in violation of the Federal or State Constitutions may
apply for an exception to these standards pursuant to this Section.
(b) The applicant shall provide information that sets forth the basis upon which the applicant
believes that the exception is necessary to provide the property with economically viable use.
This information shall include each of the following:
(1) Basis for application.
A. Date of acquisition of the property;
B. Purchase price of the property; and
C. An explanation of how the exception is necessary to provide the property
with an economically viable use.
CADocuments and Settings\Robert.HargreavesWy Documents\PALM DESERT-Ordinance Re Takings.doc
i
ORDINANCE NO. 1104
(2) Economic data.
A. Current market value of the property;
B. Dates and amounts of invested capital following acquisition of the
property;
C. Description and amount of each assessment imposed upon the property for
public improvements;
D. Existing activities for the property;
E. Planned activities for the property, including the timing for development;
F. Market value claimed if the exception is denied;
G. Portion of the property retaining economic use if the exception is not
granted; and
H. Reduced profits if the exception is not granted, including the assumptions
underlying the estimates.
(3) Additional information. Such additional information as the City may request in
order to take action on the request. The applicant shall cooperate with City requests for financial
information regarding the property. Confidential business information provided by an applicant
to the city shall remain confidential consistent with the requirements of the Public Records Act
(Government Code §6250 et seq.).
(4) Consultants and Experts. The name, address and occupation of each consultant
and expert providing information or in any way assisting in the preparation of the application.
In acting upon an application, the Planning Commission shall consider, among other
matters, each of the following:
(a) Present use of the property and duration of that use, including:
(1) Each general plan designation and zoning classification applied to the property;
and
(2) Each use to which the property was put.
(b). Fair market value of the property before the restriction that is the subject of the exception
application imposed;
(c) Alternate uses that are available for the property; and
C:Wocuments and Settings�Robett.Hargreaves\My Docnments\PALM DESERT-Ordinance Re Takings.doc2
ORDINANCE NO. 1104
(d) The fair market value of the property if the exception is denied.
The Planning Commission shall make its decision based on the evidence presented to it. The
decision shall be in writing with specific findings on the economic impact of the application of
the restriction for which the exception is requested."
SECTION 2. If any section, subsection, sentence, clause phrase or word of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of
competent jurisdiction or preempted by state legislation, such decision or legislation shall not
affect the validity of the remaining portions of this Ordinance. The City Council of the City of
Palm Desert hereby declares that it would have passed this Ordinance and each and every
section, subsection, sentence, clause or phrase not declared invalid or unconstitutional without
regard to any such decision or preemptive legislation.
SECTION 3. The Mayor shall sign this Ordinance and the City Clerk shall cause the
same to be published within fifteen (15) days after its passage at least once, in a newspaper of
general circulation, published and circulated in the City of Palm Desert, California. This
Ordinance of the City of Palm Desert shall be effective thirty (30) days after the date of its
passage.
PASSED, APPROVED and ADOPTED this _ day of 2005, by
the City Council of the City of Palm Desert, California by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
City of Palm Desert, California
ATTEST:
Rachelle Klassen, City Clerk
CADocuments and Settingsaobert.HargreavesNy DocumentsTAIM DESERT-Ordinance Re Takings. doc3
e
ORDINANCE NO. 1104
City of Palm Desert, California
APPROVED AS TO FORM:
David J. Erwin, City Attorney
City of Palm Desert
COocuments and Settings\Roben.HargreavesWy Doc¢ cnts\PALM DESERT-ordinance Re Takings.doA
f
MINUTES
PALM DESERT PLANNING COMMISSION OCTOBER 18 2005
Campbell concurred. Commissioner
r Jonathan said his second to the motion
did as well.
Action:
It was moved by Commissioner Campbell, seconded by Commissioner
Jonathan, approving the findings as presented by staff. Motion carried 4-0
(Commissioner Finerty was absent).
It was moved by Commissioner Campbell, seconded by Commissioner
Jonathan, adopting Planning Commission Resolution No. 2361,
recommending to City Council approval of Case Nos. GPA 05-02, C2 05-02,
PP 05-12 and PM 33837, subject to conditions as amended. Motion carried
4-0 (Commissioner Finerty was absent).
E. Case No. ZOA 05-03 - CITY OF PALM DESERT, Applicant
Request for a recommendation to the City Council to approve
a zoning ordinance amendment to add Section 25.112
regarding exceptions based on unconstitutional takings.
Mr. Drell said that basically this ordinance provides an administrative
procedure an applicant would have to follow if they intend to pursue what
they call a "takings" as a result of one of our land use decisions.
Chairperson Tschopp indicated that it seemed to basically be the procedure
on how to do it. Mr. Drell said it forces the applicant to come out front during
the.administrative process and make the case that our decision is removing
them of the economic use of their property. Mr. Hargreaves was in
concurrence with the amendment to the ordinance.
Chairperson Tschopp opened the public hearing and asked for any testimony
in FAVOR or OPPOSITION. There was none and the public hearing was
closed.
Action:
It was moved by Commissioner Campbell, seconded by Commissioner
Lopez, approving the findings as presented by staff. Motion carried 4-0
(Commissioner Finerty was absent).
21
I
z
MINUTES
PALM DESERT PLANNING COMMISSION OCTOBER 18 2005
It was moved by Commissioner Campbell, seconded by Commissioner
Lopez, adopting Planning Commission Resolution No. 2362, recommending
to City Council approval of Case No. ZOA 05-03. Motion carried 4-0
(Commissioner Finerty was absent).
IX. MISCELLANEOUS
A. Case No. TT 30706 Amendment#1 -PALM DESERT PARTNERS,
L.P., Applicant
Per Planning Commission direction, presentation of a
resolution denying a request to approve an amendment to
Condition No. 9 of Planning Commission Resolution No. 2207
to allow a height exception for 16 model homes with roof
elements at a maximum height of 20 feet for property located
on the west side of Shepherd Lane west of Portola Pointe
Drive.
The applicant submitted a letter withdrawing his request.
Action:
None. Letter of withdrawal received and filed.
X. COMMITTEE MEETING UPDATES
A. ART IN PUBLIC PLACES
Commissioner Campbell reported that the next meeting would be
October 19, 2005.
B. LANDSCAPE COMMITTEE
None.
C. PROJECT AREA 4 COMMITTEE
None.
22
MINUTES
PALM DESERT PLANNING COMMISSION OCTOBER 88. 2005
Campbell concurred. Commissioner Jonathan said his second to the motion
did as well.
Action:
It was moved by Commissioner Campbell, seconded by Commissioner
Jonathan, approving the findings as presented by staff. Motion carried 4-0
(Commissioner Finerty was absent).
It was moved by Commissioner Campbell, seconded by Commissioner
Jonathan, adopting Planning Commission Resolution No. 2361,
recommending to City Council approval of Case Nos. GPA 05-02, C/Z 05-02,
PP 05-12 and PM 33837, subject to conditions as amended. Motion carried
4-0 (Commissioner Finerty was absent).
=MOO E. Case No. ZOA 05-03 - CITY OF PALM DESERT, Applicant
Request for a recommendation to the City Council to approve
a zoning ordinance amendment to add Section 25.112
regarding exceptions based on unconstitutional takings.
Mr. Drell said that basically this ordinance provides an administrative
procedure an applicant would have to follow if they intend to pursue what
they call a "takings" as a result of one of our land use decisions.
Chairperson Tschopp indicated that it seemed to basically be the procedure
on how to do it. Mr. Drell said it forces the applicant to come out front during
the administrative process and make the case that our decision is removing
them of the economic use of their property. Mr. Hargreaves was in
concurrence with the amendment to the ordinance.
Chairperson Tschopp opened the public hearing and asked for any testimony
in FAVOR or OPPOSITION. There was none and the public hearing was
closed.
Action:
It was moved by Commissioner Campbell, seconded by Commissioner
Lopez, approving the findings as presented by staff. Motion carried 4-0
(Commissioner Finerty was absent).
21
MINUTES
PALM DESERT PLANNING COMMISSION OCTOBER 18, 2005
It was moved by Commissioner Campbell, seconded by Commissioner
Lopez, adopting Planning Commission Resolution No. 2362, recommending
to City Council approval of Case No. ZOA 05-03. Motion carried 4-0
(Commissioner Finerty was absent).
IX. MISCELLANEOUS
A. Case No. TT 30706 Amendment#1 - PALM DESERT PARTNERS,
L.P., Applicant
Per Planning Commission direction, presentation of a
resolution denying a request to approve an amendment to
Condition No. 9 of Planning Commission Resolution No. 2207
to allow a height exception for 16 model homes with roof
elements at a maximum height of 20 feet for property located
on the west side of Shepherd Lane west of Portola Pointe
Drive.
The applicant submitted a letter withdrawing his request.
Action:
None. Letter of withdrawal received and filed.
X. COMMITTEE MEETING UPDATES
A. ART IN PUBLIC PLACES
Commissioner Campbell reported that the next meeting would be
October 19, 2005.
B. LANDSCAPE COMMITTEE
None.
C. PROJECT AREA 4 COMMITTEE
None.
22
� IIY Of PRIM OESE i
73-510 FRED WARING DRIVE
PALM DESERT,CALIFORNIA 9z260-¢578
TEL: 760 346-o6iI
FAX:760 341-7o98
info®Palm-d<ssv.orS
CITY OF PALM DESERT
LEGAL NOTICE
CASE NO.ZOA 5.3
NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert City
Council to consider a request by the CITY OF PALM DESERT to add Zoning Ordinance
Section 25.112 regarding "Exceptions Based on Unconstitutional Takings"
SAID public hearing will be held on Thursday, November 10, 2005, at 4:00 p.m. in the Council
Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California,
at which time and place all interested persons are invited to attend and be heard. Written
comments concerning all items covered by this public hearing notice shall be accepted up to
the date of the hearing. Information concerning the proposed project and/or negative
declaration is available for review in the Department of Community Development at the above
address between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday. If you
challenge the proposed actions in court, you may be limited to raising only those issues you or
someone else raised at the public hearing described in this notice,or in written correspondence
delivered to the City Council at,or prior to,the public hearing.
PUBLISH: Desert Sun RACHELLE D KLASSEN
October 25,2005 City Clerk, City of Palm Desert
C I I y Uf P11 [ M 0ESE91
73-5io PRED WARING DRIVE
PALM DESERT, CALIFORNIA 92260-2578
TEL: 760 346—o61I
FAX: 760 341-7098
info@paim-desert.org
PLANNING COMMISSION MEETING
NOTICE OF ACTION
Date: October 21 , 2005
CITY OF PALM DESERT
Re: ZOA 05-03
The Planning Commission of the City of Palm Desert has considered your request and
taken the following action at its regular meeting of October 18, 2005:
PLANNING COMMISSION RECOMMENDED TO CITY COUNCIL
APPROVAL OF CASE NO. ZOA 05-03 BY ADOPTION OF PLANNING
COMMISSION RESOLUTION NO. 2362. MOTION CARRIED 4-0.
Any appeal of the above action may be made in writing to the City Clerk, City of Palm
Desert, within fifteen (15) days of the date of the decision.
Philip AIISeretary /�
Palm Desert Pining Commission
/tm
cc: Coachella Valley Water District
Public Works Department
Building & Safety Department
Fire Marshal
t)mxnuor vna[o rn[e
RE(;EIVED
CITY CLERK'S OFFICE
P�,L P9 DESERT. CA
I'M OCT 13 PM 2, 31
PROOF OF PUBLICATION This is space for County Clerk's Filing Stamp
(2015.5.C.C.P)
STATE OF CALIFORNIA
County of Riverside
---------------------------------------------
I am a citizen of the United States and a resident of Proof of Publication of
the County aforesaid;I am over the age of eighteen ---------------------------------••-•--••-----
years,and not a party to or interested in the
above-entitled matter.I am the principal clerk of a
printer of the,DESERT SUN PUBLISHING -- -- --- ��
COMPANY a newspaper of general circulation, No. 3693 CITY OF PALM DESERT
printed and published in the city of Palm Springs, LEGAL NOTICE
CASE NO. ZOA 5-3
County of Riverside,and which newspaper has been
adjudged a newspaper of general circulation h the I NOTICE a HEREBY GIVEN that a public hearing.
J gg y will be held before the Palm Desert Planningg
Superior Court of the County of Riverside,State of Commission to consider a request by The City of,
Palm Desert for approval of a zoning ordinance
California under the date of March 24,1988.Case amendment regarding exceptions based on unl
Number 191236;that the notice,of which the constitutional takings.
SAID public hearing will be held on Tuesday. Oc-.
annexed is a printed copy(set in type not smaller tober 18.2005 at 6:00 p.m.in the Council Cham+
than non panel,has been published in each regular at the
Desert clmaatnchwarlgDre, Palm Desert, afor, wi
and entire issue of said newspaper and not in any .rime and place all Interested persons are Invited
-to attend and be heard. written comments con-.
supplement thereof on the following dates,to wit: •earning all items covered by this public hearing
-notice shall be sees is up to the date of the
hearing. Information concerning the proposedi
October 51h 2OO$ :prolact is available for review In the Department
of Community Development at the above address
____________ __ between the hours of 8:00 a.m. and 5:00 p.m.
.............................................................
--------------------------------------------- - Monday through Friday. If you challenge the pro-
posed actions m court, you may be limited to
............................................................... raising only Chase Issues you or.so eons also
raisetl at the public hearing tlescnbed In this no-
All in the year 20052 1l.bee,or in written conespondence delNeretl to the:
y IPla the q ublic h aring.lor city councip at, or prior
,to, p
I certifyor declare under penalty of perjury that the PHILIP DRELL, Secretary;
( P y pe 1 y Palm Desert Planning Commission,
foregoing is true and correct. Published_.October 5, 2005
Dated at Palm Spr' gs,California this-----5'",----day
of----------OC F- --- ---- -------------------2005
---- ---- ------- ----------------- - -------------
Signature
PLANNING COMMISSION RESOLUTION NO. 2362
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
PALM DESERT, CALIFORNIA, RECOMMENDING TO CITY COUNCIL
APPROVAL OF AN AMENDMENT TO THE ZONING ORDINANCE
ADDING CHAPTER 25.112 OF THE MUNICIPAL CODE RELATING TO
EXCEPTIONS BASED ON UNCONSTITUTIONAL TAKINGS.
CASE NO. ZOA 05-03
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on
the 18th day of October, 2005, hold a duly noticed public hearing to a consider a request
by the CITY OF PALM DESERT for the above mentioned; and
WHEREAS, the City Attorney of the City of Palm Desert, California, has
recommended that Section 25.112 of the Zoning Ordinance relating to Exceptions Based
on Unconstitutional Takings be added; and
WHEREAS, said application has complied with the requirements of the "City of
Palm Desert Procedure for Implementation of the California Environmental Quality Act,
Resolution No. 05-52," in that the Director of Community Development has determined
that the project is a Class 5 Categorical Exemption; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and
arguments, if any, of all interested persons desiring to be heard, said Planning
Commission did find the following facts and reasons to exist to justify approval of the
Zoning Ordinance Amendment:
1. That the Zoning Ordinance Amendment is consistent with the objectives of
the Zoning Ordinance.
2. That the Zoning Ordinance Amendment is consistent with the adopted
General Plan and affected specific plans.
3. That the Zoning Ordinance Amendment would better serve the public health,
safety and general welfare than the current regulations.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City
of Palm Desert, California, as follows:
1. That the above recitations are true and correct and constitute the findings of
the Planning Commission in this case.
2. That it does herby recommend approval to the City Council of a Zoning
Ordinance text amendment as provided in the attached Exhibit "A" to add
Municipal Code Section 25.112.
PLANNING COMMISSION RESOLUTION NO. 2362
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert `
City Council, held on this 18th day of October, 2005, by the following vote, to wit: {[
AYES: CAMPBELL, JONATHAN, LOPEZ, TSCHOPP
NOES: NONE
ABSENT: FINERTY
ABSTAIN: NONE
�-- DAVID E. TTSSCHOPP, Chai
ATTEST:
PHILIP DREL4 Secretigw
Palm Desert Planning Commission
2
PLANNING COMMISSION RESOLUTION NO. 2362
EXHIBIT 'A'
SECTION 1 . Section 25.112 "Exceptions Based on Unconstitutional Takings"
be added to the Palm Desert Municipal Code as follows:
"Chapter 25.112 Exceptions Based on Unconstitutional Takings.
25.112.1 Purpose
The purpose of this Chapter is to ensure that the application of
the standards contained in Title 25 Zoning to parcels within the City do not create a
taking of private property prohibited by Federal or State Constitutions.
25.112.2 Application and Hearing
(a) Any applicant that contends that the application of the standards of Title 25
will result in a taking of property without just compensation in violation of the
Federal or State Constitutions may apply for an exception to these standards
pursuant to this Section.
(b) The applicant shall provide information that sets forth the basis upon which
the applicant believes that the exception is necessary to provide the property with
economically viable use. This information shall include each of the following:
(1 ) Basis for application.
A. Date of acquisition of the property;
B. Purchase price of the property; and
C. An explanation of how the exception is necessary to provide the
property with an economically viable use.
(2) Economic data.
A. Current market value of the property;
B. Dates and amounts of invested capital following acquisition of
the property;
C. Description and amount of each assessment imposed upon the
property for public improvements;
3
PLANNING COMMISSION RESOLUTION NO. 2362
D. Existing activities for the property;
E. Planned activities for the property, including the timing for
development;
F. Market value claimed if the exception is denied;
G. Portion of the property retaining economic use if the exception
is not granted; and
H. Reduced profits if the exception is not granted, including the
assumptions underlying the estimates.
(3) Additional information. Such additional information as the City may .
request in order to take action on the request. The applicant shall cooperate with
City requests for financial information regarding the property. Confidential business
information provided by an applicant to the city shall remain confidential consistent
with the requirements of the Public Records Act (Government Code §6250 eq
seq.).
(4) Consultants and Experts. The name, address and occupation of each
consultant and expert providing information or in any way assisting in the
preparation of the application.
In acting upon an application, the Planning Commission shall consider, among
other matters, each of the following:
(a) Present use of the property and duration of that use, including:
(1 ) Each general plan designation and zoning classification applied to the
property; and
(2) Each use to which the property was put.
(b) Fair market value of the property before the restriction that is the subject of
the exception application imposed;
i
(c) Alternate uses that are available for the property; and
(d) The fair market value of the property if the exception is denied.
4
PLANNING COMMISSION RESOLUTION NO. 2362
,
The Planning Commission shall make its decision based on the evidence presented
to it. The decision shall be in writing with specific findings on the economic impact
of the application of the restriction for which the exception is requested."
SECTION 2. If any section, subsection, sentence, clause phrase or word of
this Ordinance is for any reason held to be invalid or unconstitutional by a decision
of any court of competent jurisdiction or preempted by state legislation, such
decision or legislation shall not affect the validity of the remaining portions of this
Ordinance. The City Council of the City of Palm Desert hereby declares that it
would have passed this Ordinance and each and every section, subsection,
sentence, clause or phrase not declared invalid or unconstitutional without regard to
any such decision or preemptive legislation.
SECTION 3. The Mayor shall sign this Ordinance and the City Clerk shall
cause the same to be published within fifteen (15) days after its passage at least
once, in a newspaper of general circulation, published and circulated in the City of
Palm Desert, California. This Ordinance of the City of Palm Desert shall be
effective thirty (30) days after the date of its passage.
H
5
CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
TO: Planning Commission
DATE: October 18, 2005
CASE NO: ZOA 05-03
REQUEST: Recommend to the City Council approval of a Zoning Ordinance Amendment to add
Section 25.112
APPLICANT: City of Palm Desert
I. BACKGROUND:
The city attorney has prepared a new section of the zoning ordinance along with a report to set a
procedure for instances where enforcement of the zoning almost entirely eliminates economically
viable use of the property.
II. ENVIRONMENTAL REVIEW:
The application is a Class 5 categorical exemption per Section 15305(Minor Alterations in Land
Use Limitations) of CEQA Guidelines and no further documentation is necessary.
III. RECOMMENDATION:
That the Planning Commission recommend to the City Council approval of ZOA 5-3.
IV. ATTACHMENTS:
A. Draft resolution
B. Legal notice
C. Chapter 25.112, Exceptions Based on Unconstitutional Takings
D. Memorandum from Robert W. Hargreaves, Assistant City Attorney
Prepared by:
Phil Joy
Associate Transportation Planner
Reviewed and App ov d: Revie 4Ar :
ip Drell Homer
b4%%'Director of Community Development ACM for Development Services
PLANNING COMMISSION RESOLUTION NO.
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
PALM DESERT, CALIFORNIA, RECOMMENDING TO CITY COUNCIL
APPROVAL OF AN AMENDMENT TO THE ZONING ORDINANCE
ADDING CHAPTER 25.112 OF THE MUNICIPAL CODE RELATING TO
EXCEPTIONS BASED ON UNCONSTITUTIONAL TAKINGS.
CASE NO. ZOA 05-03
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on
the 18th day of October, 2005, hold a duly noticed public hearing to a consider a request
by the CITY OF PALM DESERT for the above mentioned; and
WHEREAS, the City Attorney of the City of Palm Desert, California, has
recommended that Section 25.112 of the Zoning Ordinance relating to Exceptions Based
on Unconstitutional Takings be added; and
WHEREAS, said application has complied with the requirements of the "City of
Palm Desert Procedure for Implementation of the California Environmental Quality Act,
Resolution No. 05-52," in that the Director of Community Development has determined
that the project is a Class 5 Categorical Exemption; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and
arguments, if any, of all interested persons desiring to be heard, said Planning
Commission did find the following facts and reasons to exist to justify approval of the
Zoning Ordinance Amendment:
1. That the Zoning Ordinance Amendment is consistent with the objectives of
the Zoning Ordinance.
2. That the Zoning Ordinance Amendment is consistent with the adopted
General Plan and affected specific plans.
3. That the Zoning Ordinance Amendment would better serve the public health,
safety and general welfare than the current regulations.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City
of Palm Desert, California, as follows:
1. That the above recitations are true and correct and constitute the findings of
the Planning Commission in this case.
2. That it does herby recommend approval to the City Council of a Zoning
Ordinance text amendment as provided in the attached Exhibit "A" to add
Municipal Code Section 25.112.
PLANNING COMMISSION RESOLUTION NO.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert
City Council, held on this 18th day of October, 2005, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
DAVID E. TSCHOPP, Chairperson
ATTEST:
PHILIP DRELL, Secretary
Palm Desert Planning Commission
2
PLANNING COMMISSION RESOLUTION NO.
EXHIBIT `A'
SECTION 1 . Section 25.112 "Exceptions Based on Unconstitutional Takings"
be added to the Palm Desert Municipal Code as follows:
"Chapter 25.112 Exceptions Based on Unconstitutional Takings.
25.112.1 Purpose
The purpose of this Chapter is to ensure that the application of
the standards contained in Title 25 Zoning to parcels within the City do not create a
taking of private property prohibited by Federal or State Constitutions.
25.112.2 Application and Hearing
(a) Any applicant that contends that the application of the standards of Title 25
will result in a taking of property without just compensation in violation of the
Federal or State Constitutions may apply for an exception to these standards
pursuant to this Section.
(b) The applicant shall provide information that sets forth the basis upon which
the applicant believes that the exception is necessary to provide the property with
economically viable use. This information shall include each of the following:
(1 ) Basis for application.
A. Date of acquisition of the property;
B. Purchase price of the property; and
C. An explanation of how the exception is necessary to provide the
property with an economically viable use.
(2) Economic data.
A. Current market value of the property;
B. Dates and amounts of invested capital following acquisition of
the property;
C. Description and amount of each assessment imposed upon the
property for public improvements;
3
PLANNING COMMISSION RESOLUTION NO.
D. Existing activities for the property;
E. Planned activities for the property, including the timing for
development;
F. Market value claimed if the exception is denied;
G. Portion of the property retaining economic use if the exception
is not granted; and
H. Reduced profits if the exception is not granted, including the
assumptions underlying the estimates.
(3) Additional information. Such additional information as the City may
request in order to take action on the request. The applicant shall cooperate with
City requests for financial information regarding the property. Confidential business
information provided by an applicant to the city shall remain confidential consistent
with the requirements of the Public Records Act (Government Code §6250 eq
seq.).
(4) Consultants and Experts. The name, address and occupation of each
consultant and expert providing information or in any way assisting in the
preparation of the application.
In acting upon an application, the Planning Commission shall consider, among
other matters, each of the following:
(a) Present use of the property and duration of that use, including:
(1 ) Each general plan designation and zoning classification applied to the
property; and
(2) Each use to which the property was put.
(b) Fair market value of the property before the restriction that is the subject of
the exception application imposed;
(c) Alternate uses that are available for the property; and
(d) The fair market value of the property if the exception is denied.
4
PLANNING COMMISSION RESOLUTION NO.
The Planning Commission shall make its decision based on the evidence presented
to it. The decision shall be in writing with specific findings on the economic impact
of the application of the restriction for which the exception is requested."
SECTION 2. If any section, subsection, sentence, clause phrase or word of
this Ordinance is for any reason held to be invalid or unconstitutional by a decision
of any court of competent jurisdiction or preempted by state legislation, such
decision or legislation shall not affect the validity of the remaining portions of this
Ordinance. The City Council of the City of Palm Desert hereby declares that it
would have passed this Ordinance and each and every section, subsection,
sentence, clause or phrase not declared invalid or unconstitutional without regard to
any such decision or preemptive legislation.
SECTION 3. The Mayor shall sign this Ordinance and the City Clerk shall
cause the same to be published within fifteen (15) days after its passage at least
once, in a newspaper of general circulation, published and circulated in the City of
Palm Desert, California. This Ordinance of the City of Palm Desert shall be
effective thirty (30) days after the date of its passage.
11
5
CITY OF PALM DESERT
LEGAL NOTICE
CASE NO.ZOA 5-3
NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert Planning
Commission to consider a request by The City of Palm Desert for approval of a zoning ordinance
amendment regarding exceptions based on unconstitutional takings.
SAID public hearing will be held on Tuesday, October 18, 2005 at 6:00 p.m. in the Council
Chamber at the Palm Desert Civic Center,73-510 Fred Waring Drive,Palm Desert,California,at
which time and place all interested persons are invited to attend and be heard. Written
comments concerning all items covered by this public hearing notice shall be accepted up to the
date of the hearing. Information concerning the proposed project is available for review in the
Department of Community Development at the above address between the hours of 8:00 a.m.
and 5:00 p.m. Monday through Friday. If you challenge the proposed actions in court,you may
be limited to raising only those issues you or someone else raised at the public hearing
described in this notice,or in written correspondence delivered to the Planning Commission(or
city council)at,or prior to,the public hearing.
PUBLISH: Desert Sun PHILIP DRELL, Secretary
October 5,2005 Palm Desert Planning Commission
DRAFT NO Page ] of 3
Joy, Phil
From: Doris Martin [Doris.Martin@bbklaw.com]
Sent: Wednesday, October 12, 2005 11:35 AM
To: Joy, Phil
Subject: #247721 v2 - PALM DESERT-Ordinance Re Exceptions
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, ADDING CHAPTER 25.112 TO
TITLE 25 OF THE CITY OF PALM DESERT MUNICIPAL CODE
REGARDING EXCEPTIONS BASED ON UNCONSTITUTIONAL
TAKINGS
THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Section 25.112 "Exceptions Based on Unconstitutional Takings"
be added to the Palm Desert Municipal Code as follows:
"Chapter 25.112 Exceptions Based on Unconstitutional Takings.
25.112.1 Purpose
The purpose of this Chapter is to ensure that the application of the standards
contained in Title 25 Zoning to parcels within the City do not create a taking of private property
prohibited by Federal or State Constitutions.
25.112.2 Application and Hearing
(a) Any applicant that contends that the application of the standards of Title 25 will result in a
taking of property without just compensation in violation of the Federal or State Constitutions may
apply for an exception to these standards pursuant to this Section.
(b) The applicant shall provide information that sets forth the basis upon which the applicant
believes that the exception is necessary to provide the property with economically viable use. This
information shall include each of the following:
(1) Basis for application.
A. Date of acquisition of the property;
B. Purchase price of the property; and
C. An explanation of how the exception is necessary to provide the property with an
10/12/2005
DRAFT NO Page 2 of 3
economically viable use.
(2) Economic data.
A. Current market value of the property;
B. Dates and amounts of invested capital following acquisition of the property;
C. Description and amount of each assessment imposed upon the property for public
improvements;
D. Existing activities for the property;
E. Planned activities for the property, including the timing for development;
F. Market value claimed if the exception is denied;
G. Portion of the property retaining economic use if the exception is not granted; and
H. Reduced profits if the exception is not granted, including the assumptions
underlying the estimates.
(3) Additional information. Such additional information as the City may request in order to
take action on the request. The applicant shall cooperate with City requests for financial information
regarding the property. Confidential business information provided by an applicant to the city shall
remain confidential consistent with the requirements of the Public Records Act (Government Code
§6250 eq seq.).
(4) Consultants and Experts. The name, address and occupation of each consultant and
expert providing information or in any way assisting in the preparation of the application.
In acting upon an application, the Planning Commission shall consider, among other matters,
each of the following:
(a) Present use of the property and duration of that use, including:
(1) Each general plan designation and zoning classification applied to the property; and
(2) Each use to which the property was put.
(b) Fair market value of the property before the restriction that is the subject of the exception
application imposed;
(c) Alternate uses that are available for the property; and
(d) The fair market value of the property if the exception is denied.
The Planning Commission shall make its decision based on the evidence presented to it. The decision
shall be in writing with specific findings on the economic impact of the application of the restriction for
which the exception is requested."
10/12/2005
DRAFT NO Page 3 of 3
SECTION 2. If any section, subsection, sentence, clause phrase or word of this Ordinance is
for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction
or preempted by state legislation, such decision or legislation shall not affect the validity of the
remaining portions of this Ordinance. The City Council of the City of Palm Desert hereby declares that
it would have passed this Ordinance and each and every section, subsection, sentence, clause or phrase
not declared invalid or unconstitutional without regard to any such decision or preemptive legislation.
SECTION 3. The Mayor shall sign this Ordinance and the City Clerk shall cause the same to
be published within fifteen (15) days after its passage at least once, in a newspaper of general
circulation, published and circulated in the City of Palm Desert, California. This Ordinance of the City
of Palm Desert shall be effective thirty(30) days after the date of its passage.
PASSED, APPROVED and ADOPTED this day of 2005, by the City
Council of the City of Palm Desert, California by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
City of Palm Desert, California
ATTEST:
Rachelle Klassen, City Clerk
City of Palm Desert, California
APPROVED AS TO FORM:
David J. Erwin, City Attorney
City of Palm Desert
10/12/2005
LAW OFFICES OF
BEST BEST &
KRIEGER LLP
October 7, 2005
MEMORANDUM
To: Honorable Chairman and
Members of the Planning
Commission
FROM: Robert W. Hargreaves, Assistant City Attorney
RE: Proposed Ordinance Regarding Exceptions Based on Unconstitutional
Takings
RECOMMENDATION
That the Planning Commission recommend to the City Council the adoption of the
proposed Chapter 25.112 regarding Exceptions Based on Unconstitutional Takings.
DISCUSSION
The strict application of the city's zoning standards to particular parcels may, in unusual
circumstances, almost entirely eliminate economically viable use of the property. The severe
impairment of reasonable, investment backed expectations may constitute a "regulatory taking"
of property without just compensation in violation of federal and state constitutions. A court
determination of a "regulatory taking" would likely result in the invalidation of the offending
land-use decision and potentially a damages award against the City.
The proposed ordinance has two functions: (1) alert the City to potential taking claims in
time to make necessary adjustments in project approvals; and (2) set up a defense to taking
claims where an applicant fails to provide sufficient information to substantiate that claim.
The proposed ordinance is intended to provide a safety valve to ensure that the City's
strict application of Title. 25 zoning standards does not run afoul of constitutional prohibitions.
In essence, the proposed ordinance requires that an applicant alert the City to a potential taking
claim by providing the City, during the land-use process, with any information the applicant
believes substantiates that claim. Based on the information provided, the City can evaluate its
potential vulnerability to a takings claim. If the City concludes that the strict application of the
zoning standards would cause a constitutional violation, the ordinance empowers the City to
grant an exception to any problematic zoning standards.
Additionally, if an applicant fails to avail itself of the protections of the ordinance, the
applicant would "fail to exhaust administrative remedies" and would likely be precluded from
pursuing a takings claim in court.
Consequently, the City Attorney recommends that the Planning Commission recommend
adoption of Chapter 25.112 to the City Council.
RWH:krg
cc: David J. Erwin, City Attorney