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HomeMy WebLinkAboutZOA 09-253 EXCEPTIONS 2009 ♦ V ORDINANCE NO. 1192 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A ZONING ORDINANCE AMENDMENT ADDING CLARIFYING LANGUAGE TO SECTION 25.112, EXCEPTIONS BASED ON UNCONSTITUTIONAL TAKINGS. CASE NO. ZOA 09-253 WHEREAS, the City Council of the City of Palm Desert, California, did on the 9th day of July, 2009, hold a duly noticed public hearing to consider modification to Section 25.112; and WHEREAS, the Planning Commission, by its Resolution No. 2506, has recommended approval; 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. 06-78, the Director of Community Development has determined that the proposed clarification of the Zoning Ordinance is not a project as defined under CEQA and no further environmental review is necessary, 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 said amendment: 1. That the Planning Commission, in order to mitigate potential environmental impacts, may want to place conditions on a project when granting of an exception based upon unconstitutional taking; and 2. Though the power to condition any approval is inherent in the various approval processes in the Zoning Ordinance, Chapter 25.112 of the Palm Desert Municipal Code does not explicitly permit the Planning Commission to place such conditions; and 3. That the proposed Zoning Ordinance Amendment will not negatively impact the public health, safety or general welfare. 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. 2. That the Zoning Ordinance Text Amendment as provided in the attached Exhibit "A" is hereby approved. l ORDINANCE NO. 1192 w j4 3. That the City Clerk of the City of Palm Desert, California, is hereby directed to publish this ordinance in the Desert Sun, a newspaper of general circulation, published and circulated in the City of Palm Desert, California, and shall be in full force and effective thirty (30) days after its adoption. PASSED, APPROVED AND ADOPTED by the Palm Desert City Council this 27th day of August, 2009, by the following vote, to wit: AYES: BENSON, FERGUSON, FINERTY, KELLY and SPIEGEL NOES: NONE ABSENT: NONE ABSTAIN: NONE ROBERT A. SPI G L, ATTEST: RACH LLE D. KLASS N, CITY CLERK CITY OF PALM DESERT, CALIFORNIA �- � C1 2 i `�. ORDINANCE NO. 1192 EXHIBIT A That Municipal Code Chapter 25.112.020 (E) shall be added, as follows: E. The Planning Commission, upon granting an exception pursuant to this section, may limit the scope of the exception or impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of property without just compensation. 3 Matteoni O'Lau& - &Hechtman L A W Y E R 5 - Norman E. Matteoni June 16, 2000 Peggy M: O'Laughlin ' Bradley M.�Matteoni _ 1 Barton G. Hechtman Chair Tanner and Members of the Planning Commission,, Perry Houlihan City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 ke: Opposition to Proposed Amendment to Chapter 25.112'Exceptions Based on Unconstitutional Takings - Dear.Honorable Chair and Members of the Planning Commission: This law firm represents David Nelson,who filed on March 13, 2009. an application for Exception Based on Unconstitutional Taking undef Chapter 25.112 With regard to his property located on 72740 Upper Way West,City of Palm Desert. By letter dated line 12,2009,this firm was informed by the, City Attorney that the Planning Commission will, at its meeting on June 16, 2009, consider recommending to the City Council an amendment to the- exception application ordinance. The proposed amendment would give the Planning Commission the authority to limit the scope of any exception granted, or to impose conditions on the exception to achieve,to the extent - feasible,the goal of the standard that is being excepted. We oppose the proposed,amendment to Chapter 25.112 and question , the City's motives in pursuing this amendment. The City's haste to adopr this amendment and failure to give reasonable notice to the only property owner with an exception application pending in the City of Palm Desert; coupled with-the City's past action in responding to Mr.Nelson's attempts to develop his property,evinces an improper motive by the City. The City's motive or purpose in adopting this-amendment'appears to be to unfairly discriminate against Mr. Nelson's property and to deny Mr. Nelson his right of due': process. I 848 The Alameda ' I San Jose, COY 95126 - ph. 408.243.4300 , fax. 408.293.4004 �� www.matteoni.00m Chair Tanner and Members of the Planning Commission June 16, 2009 Page 2 From the property owner's perspective, the effect of the proposed amendment.is to give the Planning Commission the authority to unilaterally change an owner's exception application, For example,Mr. Nelson's application seeks exceptions to specific zoning, standards, which if applied to his property would result in an unconstitutional taking.,The first exception is to the application of the prohibition on ridgeline development (Section 12.15:030F) and the second exception is to the application of tlie•pad and building size restrictions (Section25.15.0300 And C). Pursuant to•Chapter 25.I12,the City's action is limited to determining whether the application of these specific zoning standards to Mr. Nelson's property would result-in an unconstitutional taking of private property. The proposed amendment would allow the Planning Commission to avoid making the'singular determination as to whether the complained of zoning standards.result in an-unconstitutional taking. The Commission would instead have the,authority to create new standards to impose against the property. Theme new-standards will have not been subject'to any prior public review or comment as they would not be existing zoning standards.,In fact, such new conditions imposed through this proposed zoning amendment would constitute impermissible "spot zoning." The exception application should not be confused with a land use entitlement, such as a conditional use-permit, subdivision, or site development permit, which are subject to conditions"of approval. It is not such•an act of entitlement:in that-.the City's sole decision is to determine whether an unconstitutional taking of private property will result if the City's zoning standards on prohibiting ridgeline development and restricting pad and house size are - imposed against Mr. Nelson's property. At this time, there is no project,no precise plan of application on which the City can impose conditions. If the City decides.the exception.should be granted to avoid an unconstitutional taking, then the owner will submit to the City a precise plan application for the City's`cdnsideration, environmental review and determination.. Mr. Nelson filed his exception application on March 13, 2009. To date, the City has \ failed to take any constructive action on his application. Rather, the City seems intent on delaying the processing of the application by,making up new application rules and requirements not found in Chapter 25.112, First,the City informed-Mr. Nelson_thafa precise plan application must be submitted in order for the City to process the application. We objected.to that request, finding no such requirement in the Chapter 25.112 and that a precise plan application was not necessary for the City to do the requisite economic analysis as to whether the imposition of the complained of zoning standards would result in an ' - unconstitutional.taking of Mr. Nelson's.property. r Chair Tanner and Members of the Planning Commission _ June 16,2009 Page Next the Cityinformed Mr. Nelson that it would be necessary for CEQA review to ry Q be completed for the exception application to be processed. We disagreed With that- conclusion and by letter dated June 16 to the City Attorney informed him that CEQA did not apply to the exception application. CEQA only applies to discretionary projects proposed to be carried out or approved by public agencies. Then,two days later on-June 12,the City,through the City Attorney, informed this law firm for the first time that the Planning Commission, on June 16,is considering amending.the exception application ordinance to, in effect, turn it into a discretionary application subject to CEQA review. If the City does adopt this amendment to Chapter 25.112,we would object to any attempt by the City to apply this amendment retroactively to Mr. Nelson's pending exception application. A legislative enactment, such as a zoning'ordinance amendment, is presumed to operate.prospectively. The Supreme Court has noted that retroactive legislation is.generally. disfavored as it presents problems ofunfaimess because it can deprive citizens of legitimate expectations and upset settled transactions. (Eastern Enterprise v. Apfe[(1998}524 U.S.. 49$, at 532-533; also, see City fMonte Sereno v. Padget(2007)'149 Ca1.ApoAth 1530, a. city ordinance allowing fees to prevailing party in a nuisance action could not be retroactively applied.) The proposed amendment, if adopted and applied to Mr. Nelson's application,would - impermissibly change Mr. Nelson's right and legitimate expectation to have his exception application determined based on his specific request for the Commission to decide if the application of zoning standards Sections_25.15.030 F:,B. and C.to hii property.results in an unconstitutional taking., The City has subjected Mr. Nelson to a long and tortuous administrative process in his efforts to develop his property on Upper Way West. The City's response to Mr.Nelson's applications and proposals over the years to develop his property,is to continually amend its zoning ordinance to stop and delay any development on the property.-This proposed amendment to the exception application is another example'of the City's arbitraryand unfair use of its police power to forestall, as long as possible, any development on the property. We respectfully request that the Planning Commission reject the proposed amendment to Chapter 25.112 for reasons that it is unnecessary to achieve the stated purpose of the chapter, which is to ensure that-the application of the specific zoning standards i Chair Tanner and Members of the Planning Commission June 16,2009 Page 4 identified by the property owner do not result in the taking of private property,prohibited by . federal or state constitution. Moreover, we request that should the City adopt this proposed amendment, it not be applied retroactively and that Mr.Nelson be allowed to continue his exception application under the procedures and standards in effect at the time Mr. Nelson applied for the exception in March 2009., Yours tttrr�uly; PEL1 'LAUGHLIN� PMO/jm cc: David Erwin L ; Robert Hargreaves . David Nelson l oh'rn I':Jur Ucorn\COrrupuuJaua^Pl:uu It ng('rnin )i>.It PaLf6clIrI(101]2(ID9 Jar - Council Agenda Request Meeting of JULY 9, 2009 I 1 To be considered under: Consent Calendar ❑ Resolutions ❑ Ordinances ❑ New Business ❑ Old Business ❑ Informational Items ❑ Public Hearings ® Other ❑ 2. Item Title: (Please provide the wording that should appear as the item's title on the agenda). I t Reouest for approval of a clardication to Palm Desert Municipal Code Chapter 25.112, Exceptions Based on Unconstitutional Takings. Case No. ZOA 09-253. { 3. Financial: (N/A) i (a) Account/Project# (b) Amount Requested i (c) In the Current Budget? (d) Appropriation Required? g 4. Submitted by: Laud Aylaian 5. Approvals: Department Head: City Manager: n y John M.Wohimuth i CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT REQUEST: Approval of a clarification to Palm Desert Municipal Code Chapter 25.112, Exceptions Based on Unconstitutional Takings SUBMITTED BY: Lauri Aylaian, Director of Community Development APPLICANT: City of Palm Desert CASE NO: ZOA 09-253 DATE: July 9, 2009 CONTENTS: Ordinance No. Legal Notice June 1, 2009 Memo from City Attorney David Erwin to Lauri Aylaian Section 25.112 Exceptions Based on Unconstitutional Takings Planning Commission Resolution No. 2506 Draft Minutes from June 16, 2009 Planning Commission Meeting RECOMMENDATION: That the City Council waive further reading and pass Ordinance No. to second reading clarifying the language of Ordinance 1104 § 1 (Part), by stating explicitly that the Planning Commission may limit the scope of an exception or impose conditions when granting an exception based upon unconstitutional taking. EXECUTIVE SUMMARY: Approval of the staff recommendation will add clarifying language to Chapter 25.112 of the existing municipal code. This chapter governs the granting of exceptions when a property owner asserts that a strict application of the code would result in taking their property without just compensation. The clarifying language will make explicit the ability of the Planning Commission to limit scope or impose conditions when approving an exception based upon an unconstitutional taking. These limitations or conditions would be imposed when appropriate to accomplish the intent of the standard to which the exception is being granted. Staff Report • Case No. ZOA 09-253 July 9, 2009 Page 2 of 3 BACKGROUND: In 2005, the City Council enacted Ordinance 1104, which is intended to protect a property owner's rights against a governmental "taking" of their property. Chapter 25.112, Exceptions Based on Unconstitutional Takings, ensures that a property owner can receive an exception from the zoning ordinance if a strict application of the ordinance would remove all economic value from the property. The language of the chapter spells out the process by which such an exception would be granted. To date, no application for such an exception has been fully processed, or even advanced to the stage wherein a public hearing is held before the Planning Commission. An application for two exceptions (one for size restrictions and one for the prohibition against building on hillside ridgelines) was recently submitted and is now being studied by staff. PROJECT DESCRIPTION: The proposed project seeks to clarify language in the existing municipal code. As such, the proposed project would add the following sentence to Section 25.112.020 of the municipal code: E. The Planning Commission, upon granting an exception pursuant to this section, may limit the scope of the exception or impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of property without just compensation. ANALYSIS: The City has received and is now processing an application for exemption from the size restrictions and the prohibition against building on a ridgeline. This application is being evaluated and processed consistent with the requirements of Chapter 25.112 of the Palm Desert Municipal Code. The chapter in question is now being applied for the first time since its adoption in 2005. While reviewing the application described above, the City Attorney has recommended that a clarification be made to Chapter 25.112 to explicitly describe the ability of the Planning Commission to condition any exemptions that they approve. This ability is implicit in the current code, but the recommended language could ward off potential uncertainties in future applications. ENVIRONMENTAL REVIEW: This project is an administrative activity of a governmental body and is not a physical change to the environment and, therefore, is exempt from CEQA. The Director of Staff Report Case No. ZOA 09-253 July 9, 2009 Page 3 of 3 Community Development has determined that no further environmental review is necessary. Submitted by: auri Aylaian Director of Community Development Approval: John M. Wohlmuth City Manager ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A ZONING ORDINANCE AMENDMENT ADDING CLARIFYING LANGUAGE TO SECTION 25.112, EXCEPTIONS BASED ON UNCONSTITUTIONAL TAKINGS. CASE NO. ZOA 09-253 WHEREAS, the City Council of the City of Palm Desert, California, did on the 9th day of July, 2009, hold a duly noticed public hearing to consider modification to Section 25.112; and WHEREAS, the Planning Commission, by its Resolution No. 2506, has recommended approval; 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. 06-78, the Director of Community Development has determined that the proposed clarification of the Zoning Ordinance is not a project as defined under CEQA and no further environmental review is necessary, 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 said amendment: 1. That the Planning Commission, in order to mitigate potential environmental impacts, may want to place conditions on a project when granting of an exception based upon unconstitutional taking; and 2. Though the power to condition any approval is inherent in the various approval processes in the Zoning Ordinance, Chapter 25.112 of the Palm Desert Municipal Code does not explicitly permit the Planning Commission to place such conditions; and 3. That the proposed Zoning Ordinance Amendment will not negatively impact the public health, safety or general welfare. 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. 2. That the Zoning Ordinance Text Amendment as provided in the attached Exhibit "A" is hereby approved. ORDINANCE NO. 3. That the City Clerk of the City of Palm Desert, California, is hereby directed to publish this ordinance in the Desert Sun, a newspaper of general circulation, published and circulated in the City of Palm Desert, California, and shall be in full force and effective thirty (30) days after its adoption. PASSED, APPROVED AND ADOPTED by the Palm Desert City Council this day of 2009, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ROBERT A. SPIEGEL, Mayor ATTEST: RACHELLE D. KLASSEN, City Clerk City of Palm Desert, California 2 ORDINANCE NO. • EXHIBIT A That Municipal Code Chapter 25.112.020 (E) shall be added, as follows: E. The Planning Commission, upon granting an exception pursuant to this section, may limit the scope of the exception or impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of property without just compensation. 3 CITY OF PALM DESERT LEGAL NOTICE CASE NO. ZOA 09-253 NOTICE OF INTENT TO ADOPT A ZONING ORDINANCE AMENDMENT TO CHAPTER 25.112 EXCEPTIONS BASED ON UNCONSTITUTIONAL TAKINGS ADDING SECTION 25.112.020 E. STATING: "THE PLANNING COMMISSION, UPON GRANTING AN EXCEPTION PURSUANT TO THIS SECTION, MAY IMPOSE CONDITIONS TO ACHIEVE TO THE EXTENT REASONABLY FEASIBLE THE OBJECTIVES OF THE STANDARD OR STANDARDS TO WHICH AN EXCEPTION IS BEING GRANTED, BUT WITHOUT CONSTITUTING A TAKING OF PROPERTY WITHOUT JUST COMPENSATION." PROJECT DESCRIPTION: The purpose of Palm Desert Municipal Code Section 25.112 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 Quality Act as implemented by Chapter 25.88 (Environmental Impact Reports), to parcels within the city do not create a taking of private property prohibited by federal or state Constitutions. Section 25.112.020 outlines the requirements and procedure for the application and hearing process. The City of Palm Desert Community Development Department is proposing a Zoning Ordinance Amendment that will add a subsection E to Section 25,112.020 stating that"The Planning Commission, upon granting an exception pursuant to this section, may impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of property without just compensation." PROJECT LOCATION: City wide, City of Palm Desert PUBLIC HEARING: SAID public hearing will be held on Thursday, July 9, 2009 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 Zoning Ordinance Amendment 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 at, or prior to,the public hearing. PUBLISH: Desert Sun RACHELLE D. KLASSEN,City Clerk June 28,2009 City of Palm Desert, California MEMORANDUM To: Lauri Aylaian, Director of CLIENT-MATTER No.: 72500.00788 Community Development FROM: David J. Erwin, City Attorney DATE: June 1, 2009 RE: Amendment of Chapter 25.112 (Exceptions Based on Unconstitutional Takings) As you know, pursuant to chapter 25, 1,122 property owners may apply to the Planning Commission for an exception to the standards of Title 25 (Zoning) if they believe that the application of those standards would result in an unconstitutional taking of their property. Mr. Nelson has recently applied pursuant to that chapter for an exception to the prohibition of ridgeline development and pad and building size restrictions. If the Planning Commission were to grant the requested exceptions, it would likely want to place conditions on the approval that would effectuate the purpose of the exempted standards to the extent possible without resulting in a taking. In my opinion, the ability to condition approval is implicit in all approvals by the Planning Commission. However, Chapter 25.112 is silent on that issue. Given the likely controversial nature of exception requests, I believe that it would be better to amend Chapter 25.112 to make explicit the Planning Commission's ability to impose conditions on the approval. adding:Consequently, I request that staff initiate a zoning amendment to amend Section 25.112.020 by "E. The planning commission, upon granting an exception pursuant to this section, may impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of property without just compensation. " Robert W. Hargreaves, Deputy City Attorney BEST BEST & KRIEGER LLP RWH:dm R M PU B\R HARGR EA V ES1307 827.I 25.112.oio F Chapter 25.112 h. Reduced profits if the exception is not granted, including the assumptions underlying the estimates. EXCEPTIONS BASED ON UNCONSTITUTIONAL 3. Additional Information. Such additional informa- TAKINGS. tion as the city may request in order to take action on the request.The applicant shall cooperate with city requests for Sections: financial information regarding the property,Confidential 25.112.010 Purpose. business information provided by an applicant to the city 25.112.020 Application and hearing. shall remain confidential consistent with the requirements of the Public Records Act(Government Code Section 6250 t 25.112.010 Purpose. et seq.). The purpose of this chapter is to ensure that the applica- 4. Consultants and Experts. The name, address and F lion of the standards contained in Title 25 Zoning, includ- occupation of each consultant and expert providing infor- ing the environmental review and mitigation process re- mation or in any way assisting in the preparation of the quired by the California Environmental Quality Act as im- application. plemented by Chapter 25.88 (Environmental Impact Re- C. In acting upon an application, the planning com- ports),to parcels within the city do not create a taking of mission shall consider,among other matters, each of the private property prohibited by federal or state Constitu- following: tions. (Ord. 1104§ 1 (part),2005) 1. Present use of the property and duration ofthat use, including: 25.112.020 Application and hearing a. Each general plan designation and zoning classifi- A. Any applicant that contends that the application of cation applied to the property,and the standards of Title 25, including the environmental re- b. Each use to which the property was put; view and mitigation process required by the California En- 2. Fair market value of the property before the restric- vironmental Quality Act as implemented by Chapter 25.88 tion that is the subject of the exception application im- (Environmental Impact Reports),will result in a taking of posed; property without just compensation in violation of the fed- 3. Alternate uses that are available for the property; eral or state Constitutions may apply for an exception to and these standards pursuant to this section. 4. The fair market value of the property if the excep- B. The applicant shall provide information that sets tion is denied. forth the basis upon which the applicant believes that the D. The planning commission shall make its decision exception is necessary to provide the property with eco- based on the evidence presented to it.The decision shall be _ nomically viable use. This information shall include each in writing with specific findings on the economic impact of + of the following: the application of the restriction for which the exception is I. Basis for Application. requested.(Ord. 1104§ 1 (part),2005) 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 im- posed 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 484-7 (Palm neon Supp.40. I I,9-07) PLANNING COMMISSION RESOLUTION NO. 2506 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO CITY COUNCIL APPROVAL OF A ZONING ORDINANCE MODIFICATION CLARIFYING LANGUAGE IN SECTION 25.112, EXCEPTIONS BASED ON UNCONSTITUTIONAL TAKINGS. CASE NO. ZOA 09-253 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 16°i day of June, 2009, hold a duly noticed public hearing to consider the request by the CITY OF PALM DESERT for approval of the above noted; 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. 06-78, the Director of Community Development has determined that the proposed clarification of the Zoning Ordinance is not a project as defined under CEQA and no further environmental review is necessary, 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 recommending approval of said request to the City Council: 1. That the Planning Commission, in order to mitigate potential environmental impacts, may want to place conditions on a project when granting of an exception based upon unconstitutional taking; and 2. Though the power to condition any approval is inherent in the various approval processes in the Zoning Ordinance, Chapter 25.112 of the Palm Desert Municipal Code does not explicitly permit the Planning Commission to place such conditions; and 3. That the proposed Zoning Ordinance Amendment will not negatively impact the public health, safety or general welfare. 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 the Planning Commission does hereby recommend to the City Council approval of Case No. ZOA 09-253. PLANNING COMMISSi . RESOLUTION NO. 2506 PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 16'4 day of June, 2009, by the following vote, to wit: AYES: CAMPBELL, DELUNA, SCHMIDT, LIMONT NOES: NONE ABSENT: TANNER ABSTAIN: NONE M. CONNOR LIMONT, Vice Chair' ATTEST: LAURI AYLAIAN, Secretary Palm Desert Planning Commission 2 PLANNING COMMISSIN RESOLUTION NO. 2506 • EXHIBIT A That Municipal Code Chapter 25.112.020 (E) shall be added, as follows: E. The Planning Commission, upon granting an exception pursuant to this section, may limit the scope of the exception or impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of property without just compensation. 3 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16 200g It was moved by Commissioner Del-una, seconded by Commissioner Schmidt, adopting the findings and Planning Commission Resolution No. 2505, revoking Case No. CUP 07-02. Motion carried 3-1 (Commissioner Campbell voted no, Chairperson Tanner absent). It was noted that the Planning Commission was the final action on a conditional use permit, but the decision was ealable to the City Council, and the applicant may appeal. C. Case No. ZOA 09-253 — CITY F M D RT, Applicant Request for a recomme, n to the C! uncil to approve a clarification - alm Desert MuniCi Code Chapter 25.112, Exce ns Base on Uncons nal Takings. Ms. Lauri Aylaian exp d that the i efore the Planning Commission was a clarification o' languag the Zoning Ordinance. This language dealt with ci s in whi applicant with a piece of property they would like' eve ves fh a strict application of the Zoning Ord woul s nstitutional taking of their property ` t e j ords, t !eve tha ey would lose all economic value.o onomic nefit of° property if the Zoning Ordinance is strictly applie In instancy' like thaf� ey could apply for an exception to the Zoning, inan jb ar k„ quired to put forth a certain amount of formatio th to why they believe that an exception e to be: nted in ordee f them to be able to retain some beneficial use an con b_ use of their property. She further plains at this was passed in 2005, and had not yet been >.:. applied. Sta as going through a case now where they actually received applicatio , for an exception, and as they were working on the case, th . were ' ing with legal counsel, and the attorneys recommended thaky isa,,-'' dification be made to clarify explicitly that the Planning Comm n has the ability to condition any exceptions that they approve. Throug out the Zoning Ordinance, it is implicit that any request brought before the Planning Commission does offer them the opportunity to place conditions upon it. It is not administerial approval, it is discretionary. Our attorneys recommended that we in this case say it explicitly in 25.112 which deals with the exceptions based upon unconstitutional takings. Staff's recommendation was that language be inserted which clarifies that the Planning Commission, upon granting an exception pursuant to this 17 MINUTES PALM DESERT PLANNING COMMISSION J NE 16 2nng section, may limit the scope of the exception or impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of the property without just compensation. Ms. Aylaian said that if they wanted an example, one of the ones they would most likely see was an exception that act! has been requested, and that would be an exception to a prohibition uilding on a ridge on the hillside. If they could imagine, the hillside s topographically varied. Each parcel is different. It's difficult to ma)-_ alizations because the topography is so different from one p rc o ano I r, but if an applicant wanted to build on their hillside par nd they fotfn that all the places they thought were buildable wera " ' ally ridges ide4l by the Hillside Ordinance, they could proposes an exception be gran so that they could build on that ridge because if they co n't, they woul of be able to develop their property. If that a befa, a Planning Co mission, it was staff's belief that the Planning sion already had the ability to, and should be able t ndition an tion so that, for instance, they coup say they could EN a this portio f the ridge, but not another. The could tailor it to be' ec' hat pro which staff believed was the intention of the exI 'ng ZbnJ. rdin ' e and was appropriate discretion 'sion m g� e- ng Commission in order to make a 0 hat co to the in t of the standards for hillside develo nt. She,,, ked for' questions. She noted that there were a couple f interested arties in th audience. s. Ayla thteco the Planning Commission received a om'fitl eoni, O'LaugPr" & Hechtman, attorneys representing the appll for the ase she mentioned wherein this is the first application they recgt d fop., exception to the Hillside Ordinance. That letter was distributed t the C ission and if the had not had an opportunity Y to PP tY � read it she omm nde d taking a minute to read through it to see their mments. (C mmission did so.) Vice Chair ont opened the public hearing, and referring to the Request to Spea cards, invited Mr. David Nelson to address the Planning Comm- sion. MR. DAVID NELSON, 72-595 Beavertail Street in Palm Desert, explained that he is the owner of a five-acre parcel on Upper Way West, which as the knew, he has been trying to obtain Y approvals rY 9 PP on from the City to build a single-family home on the parcel for 9 Y about six and a half years now. He was at the meeting to oppose the City's proposed amendment to Chapter 25.112. This chapter 18 -MINUTES PALM DESERT PLANNING COMMISSION JUNE 16, 2009 now allows property owners to apply for an exception application to the zoning standards which, if applied to their property, would create a taking of private property, which is prohibited by Federal and State constitution. He understood that they received a copy of his attorney's letter opposing this amendment. They found out only on Friday that the City was considering this amendment. On March 13, 2009, he applied for th ption application. His application seeks exception to the g standards prohibiting development on ridgelines and res d and building size. He submitted the application, I e r ed appraisal and engineering analyses, which wed that i . se standards are applied to his property, it w' sA in an unto tional taking of his property. He would a able to develop h operty to an economically viable us Under the existing Chapter a Planning Commission was required to det. e, based o evidence received, whether the application of t g stand " to his property would result in an unconstitutio f f so, City could either buy his property or ex e his eV@ en these standards. The prob.- th this p arn_ ent is that if the Planning ib in th` oning s dards, if applied, would result i e takin private perty, it could impose new standards and Eonditions o the props That made no sense to him. His eeption ap IieaUgn onl}f_ ked whether the zoning standards that he, ti for the p ion of the development on the ridge and the re iction of the ilding pad result, if applied against his e a taking of the property. That is the only determination 5� a ue`$: Planning Commission should not be allowed to tl impo new dards which are not existing zoning standards and have t bee subject to any sort of public review and comment ., and pf a them on his property. That is impermissible spot zoning A. and it.. s unfair and discriminatory against his property. elson's first request was for the Planning Commission to not r commend adoption of this proposed amendment, but if they do choose to recommend this proposed amendment, he would then request that it not be retroactively applied to his pending application. His attorney's letter addressed why this amendment should not apply retroactively to his property; and from his perspective, it was simply unfair and unreasonable to continue to change rules and regulations governing the application procedure while people are in the midst of the application procedure and have 19 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16, 2909 in good faith relied on those procedures in pursuing the development of their property. He asked that they please carefully consider his request and thanked them for their time. MR. BRUCE KUYKENDALL, 49-081 Sundrop Court in Palm Desert, stated that he was present to represent himself, Dave Baron, and their Barracuda LLC. They al wn a five-acre parcel adjacent to Mr. Nelson's. They were r represented by Mr. Matteoni and they would be shortly filil eir exception as well. He strongly felt that this was a contfi4 of the taking of their property that is unlawful. They d to.," ; n record with every word that Mr. Nelson said to b_ , plied to th There was no one else wishin speak. Vice Chair LIk t closed the public hearing and asked for ission c ents. Commissioner DeLuna said she c stion to ask of one or both of them. Was it their in , to build on idgeline or was it their intent to build somewhere on tfi ? With all due re sp Mr. all he started back in 2002 with,th cess. H u us options. Their parcel was Sr _ fra 'n the ` d there s roughly a 180 foot piece of t ridge th was levee d off back in the 1960's right at the end of e homest6 Bing of the properties. They've tried a pad there, th 've be d ed. did receive Planning Commission app v onts p mmediately the City Council jumped on that: He ad three di nt City Council members tell him that he ` Id` uild on that property on their watch. At that point, Jean Be n sa ey need to buy these gentlemen out if that was their stanc They nt and talked to Carlos Ortega. He requested that they g appr isals on the property. They did that. They put up a Tolling greement while the Hillside Ordinance was passed. After it was p sed, they received their Tolling Agreement unsigned and a lette;// rom the City that they were no longer interested in Thasing their property. They have jumped through hoops, they are filing their exception, and they are paying for reports from appraisers and engineers. They've tried every little piece on there to try to make it. He's a grading contractor and has specialized in Palm Desert and hillside development and helped the Planning Commission set a lot of the standards that Bighorn had to adhere to. But then they went awry and now they are paying the price for the Hagadone property and 20 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16, 200 that project. The ridgeline that was drawn by the Planning Department pretty much encompassed all of the buildable sites on their property. It wasn't feasible to try to spend $250,000 to build a 10,000 square foot pad and they need a garage and a turnaround; it was not feasible. They are turning in reports to show that and this new amendment was just another continuation of the taking of their property, just handcuffing them. Commissioner DeLuna asked for clarifica ' hat the answer to her question was that they are only interest ing on the ridgeline of those lots. Mr. Kuykendall said he woult! iId any where tlti feasible, it just happened to be when `" ity Planning Depa t made their ridgeline map, which Is blown u topography`` what they supplied them. They too agi fi: rker and pre much said well, they can't go there, an o an't go over here, and so in reference to h' cel, it mean : couldn't even access it. So he has a $2 milli of pro that has no feasible use whatsoever. The ly th a coujd was walk on it. Next door, while all this was " ing on Eagl. ame in and demolished 60 d didn't ve of' minent points or ridges that t po ecFq. >' ve. Hem s getting a little sidetracked, right ace": s that i inary property line and 30 feet from the les office;'; d he was , oking at their maintenance facility, their c hous c rs a ' , d and right across that imaginary p pro ew anything. Comm 'oneK., una said she could tell he was frustrated. ' Mr. kenda aid very much so. -Commission r eLuna thanked him for his comments. Com rissio '` r Schmidt said that this is a recommendation to the City Couneii change the wording. That is their main goal this evening. She moved" at they do just that, recommend this change. She thought the change clarified the existing ordinance and the intent of what is already there and should be done. It was unfortunate, and she knew what they were saying because she had heard it before a number of times, but their assignment this evening was to recommend to Council a clarification of somewhat vague language in the ordinance. She moved that they do that, just the way it is written. 21 MINUTES 0 PALM DESERT PLANNING COMMISSION JUNE 16, 2009 Commissioner Campbell thought they could go ahead and propose to Council to go ahead and change that amendment, but she thought these two people should be exempt from this amendment. Vice Chair Limont seconded Commissioner Schmidt's motion. Action: It was moved by Commissioner Schmidt, secq by Vice Chair Limont, approving the findings as presented b ff. Motion carried 3-1 (Commissioner Campbell voted no.) Ms. Aylaian noted that it sounded I at motion, and and approval was for staff's recommendatio . Erwin concu Commissioner Schmidt clarified that it her understandin at in the recommendation, there was eference the Nelson uykendall properties. Mr. Erwin said that corr ommissioner chmidt said that was her intent. She wasn't c had the authority to exempt anyone. That was h reason; s dn't think they had the authority to exempt anyone oint. Chair Limont agreed with Commissioner Schmid h oping helped to clarify, because she knew this had bee+ diffi tior W them, the City and the Planning C ion. Sh a s use for her at least, it helped to say th' '' inal int cause th idgelines vary so greatly. Comm loner C bell as the City Attorney if he wrote the amend t. Mror,L�iwia nswe yes. Commissioner Campbell stated m„, t at she w d r"Sge hec� It wa . ved ommissioner Schmidt, seconded by Vice Chair Limont, s adoptin nnin ommission Resolution No. 2506, recommending to City Counci,, prova f Case No. ZOA 09-253. Motion carried 4-0. IX. CELLAN US A. R uest for a recommendation to the City Council to adopt a o e-year moratorium on the issuance of conditional use permits for independent massage establishments while long- term regulatory strategies are studied. Mr. Kevin Swartz stated that on May 19, 2009, the Planning Commission requested that staff prepare a report and recommendation to the City Council for a moratorium to be placed on conditional use permits for all independent massage establishments for a period of one year while the 22 I� CITY OF PALM DESERT LEGAL NOTICE CASE NO. ZOA 09-253 NOTICE OF INTENT TO ADOPT A ZONING ORDINANCE AMENDMENT TO CHAPTER 25.112 EXCEPTIONS BASED ON UNCONSTITUTIONAL TAKINGS ADDING SECTION 25.112.020 E. STATING: "THE PLANNING COMMISSION, UPON GRANTING AN EXCEPTION PURSUANT TO THIS SECTION, MAY IMPOSE CONDITIONS TO ACHIEVE TO THE EXTENT REASONABLY FEASIBLE THE OBJECTIVES OF THE STANDARD OR STANDARDS TO WHICH AN EXCEPTION IS BEING GRANTED, BUT WITHOUT CONSTITUTING A TAKING OF PROPERTY WITHOUT JUST COMPENSATION." PROJECT DESCRIPTION: The purpose of Palm Desert Municipal Code Section 25.112 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 Quality Act as implemented by Chapter 25.88 (Environmental Impact Reports), to parcels within the city do not create a taking of private property prohibited by federal or state Constitutions. Section 25.112.020 outlines the requirements and procedure for the application and hearing process. The City of Palm Desert Community Development Department is proposing a Zoning Ordinance Amendment that will add a subsection E to Section 25.112.020 stating that 'The Planning Commission, upon granting an exception pursuant to this section, may impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of property without just compensation." PROJECT LOCATION: City wide, City of Palm Desert PUBLIC HEARING: SAID public hearing will be held on Thursday, July 9, 2009 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 Zoning Ordinance Amendment 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 at, or prior to, the public hearing. PUBLISH: Desert Sun RACHELLE D. KLASSEN, City Clerk June 28, 2009 City of Palm Desert, California CIIV OE P n [ M OESERI 73-510 FRED WARING DRIVE PALM DESERT, CALIFORNIA 92260-2578 TEL: 76o 346—o6n FAX: 760 341-7098 info@palm-dc crt.org PLANNING COMMISSION MEETING NOTICE OF ACTION Date: June 17, 2009 CITY OF PALM DESERT Re: ZOA 09-253 The Planning Commission of the City of Palm Desert has considered the request and taken the following action at its regular meeting of June 16, 2009: THE PLANNING COMMISSION, BY ADOPTION OF PLANNING COMMISSION RESOLUTION NO. 2506, RECOMMENDED TO CITY COUNCIL APPROVAL OF CASE NO. ZOA 09-253. MOTION CARRIED 4-0 (CHAIRPERSON TANNER WAS ABSENT). 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. Lauri Aylaian, Secretary Palm Desert Planning Commission AM cc: Coachella Valley Water District Public Works Department Building & Safety Department Fire Marshal E3,,.�„maarun r PLANNING COMMISSION RESOLUTION NO. 2506 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO CITY COUNCIL APPROVAL OF A ZONING ORDINANCE MODIFICATION,CLARIFYING LANGUAGE IN SECTION 25.112, EXCEPTIONS—-BASED ON UNCONSTITUTIONAL TAKINGS. CASE NO. ZOA 09-253 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 16th day of June, 2009, hold a duly noticed public hearing to consider the request by the CITY OF PALM DESERT for approval of the above noted; 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. 06-78, the Director of Community Development has determined that the proposed clarification of the Zoning Ordinance is not a project as defined under CEQA and no further environmental review is necessary, 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 recommending approval of said request to the City Council: 1. That the Planning Commission, in order to mitigate potential environmental impacts, may want to place conditions on a project when granting of an exception based upon unconstitutional taking; and 2. Though the power to condition any approval is inherent in the various approval processes in the Zoning Ordinance, Chapter 25.112 of the Palm Desert Municipal Code does not explicitly permit the Planning Commission to place such conditions; and 3. That the proposed Zoning Ordinance Amendment will not negatively impact the public health, safety or general welfare. 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 the Planning Commission does hereby recommend to the City Council approval of Case No. ZOA 09-253. PLANNING COMMISSIL. RESOLUTION NO. 2506 PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 168t day of June, 2009, by the following vote, to wit: AYES: CAMPBELL, DELUNA, SCHMIDT, LIMONT NOES: NONE ABSENT: TANNER ABSTAIN: NONE M. CONNOR LIMONT, Vice Chair` ATTEST: LAURI AYLAIAN, Secretary Palm Desert Planning Commission 2 PLANNING COMMISSIUiJ RESOLUTION NO. 2506 EXHIBIT A That Municipal Code Chapter 25.112.020 (E) shall be added, as follows: E. The Planning Commission, upon granting an exception pursuant to this section, may limit the scope of the exception or impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of property without just compensation. 3 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16 2009 It was moved by Commissioner DeLuna, seconded by Commissioner Schmidt, adopting the findings and Planning Commission Resolution No. 2505, revoking Case No. CUP 07-02. Motion carried 3-1 (Commissioner Campbell voted no, Chairperson Tanner absent). It was noted that the Planning Commission was the final action on a conditional use permit, but the decision was appealable to the City Council, and the applicant may appeal. C. Case No. ZOA 09-253— CITY OF PALM DESERT, Applicant Request for a recommendation to the City Council to approve a clarification to Palm Desert Municipal Code Chapter 25.112, Exceptions Based on Unconstitutional Takings. Ms. Lauri Aylaian explained that the item before the Planning Commission was a clarification of existing language in the Zoning Ordinance. This language dealt with circumstances in which an applicant with a piece of property they would like to develop believes that a strict application of the Zoning Ordinance would result in an unconstitutional taking of their property. In other words, they believe that they would lose all economic value or economic benefit of the property if the Zoning Ordinance is strictly applied. In instances like that, they could apply for an exception to the Zoning Ordinance and they are required to put forth a certain amount of information that would demonstrate why they believe that an exception needs to be granted in order for them to be able to retain some beneficial use and economic use of their property. She further explained that this was passed in 2005, and had not yet been applied. Staff was going through a case now where they actually received an application for an exception, and as they were working on the case, they were working with legal counsel, and the attorneys recommended that this modification be made to clarify explicitly that the Planning Commission has the ability to condition any exceptions that they approve. Throughout the Zoning Ordinance, it is implicit that any request brought before the Planning Commission does offer them the opportunity to place conditions upon it. It is not administerial approval, it is discretionary. Our attorneys recommended that we in this case say it explicitly in 25.112 which deals with the exceptions based upon unconstitutional takings. Staff's recommendation was that language be inserted which clarifies that the Planning Commission, upon granting an exception pursuant to this 17 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16,200 section, may limit the scope of the exception or impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of the property without just compensation. Ms. Aylaian said that if they wanted an example, one of the ones they would most likely see was an exception that actually has been requested, and that would be an exception to a prohibition on building on a ridge on the hillside. If they could imagine, the hillside is topographically varied. Each parcel is different. It's difficult to make generalizations because the topography is so different from one parcel to another, but if an applicant wanted to build on their hillside parcel and they found that all the places they thought were buildable were actually ridges identified by the Hillside Ordinance, they could propose that an exception be granted so that they could build on that ridge because if they couldn't, they would not be able to develop their property. If that came before the Planning Commission, it was staff's belief that the Planning Commission already had the ability to, and should be able to, condition an exception so that, for instance, they could say they could build on this portion of the ridge, but not another. They could tailor it to be specific to that property, which staff believed was the intention of the existing Zoning Ordinance and was appropriate discretionary decision making by the Planning Commission in order to make an exception that comports to the intent of the standards for hillside development. She asked for any questions. She noted that there were a couple of interested parties in the audience. Ms. Aylaian also pointed out that the Planning Commission received a letter from Matteoni, O'Laughlin & Hechtman, attorneys representing the applicant for the case she mentioned wherein this is the first application they received for an exception to the Hillside Ordinance. That letter was distributed to the Commission and if they had not had an opportunity to read it, she recommended taking a minute to read through it to see their comments. (Commission did so.) Vice Chair Limont opened the public hearing, and referring to the Request to Speak cards, invited Mr. David Nelson to address the Planning Commission. MR. DAVID NELSON, 72-595 Beavertail Street in Palm Desert, explained that he is the owner of a five-acre parcel on Upper Way West, which as they knew, he has been trying to obtain approvals on from the City to build a single-family home on the parcel for about six and a half years now. He was at the meeting to oppose the City's proposed amendment to Chapter 25.112. This chapter 18 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16 2009 now allows property owners to apply for an exception application to the zoning standards which, if applied to their property, would create a taking of private property, which is prohibited by Federal and State constitution. He understood that they received a copy of his attorneys letter opposing this amendment. They found out only on Friday that the City was considering this amendment. On March 13, 2009, he applied for the exception application. His application seeks exception to the zoning standards prohibiting development on ridgelines and restricting pad and building size. He submitted the application, all the required appraisal and engineering analyses, which showed that if these standards are applied to his property, it will result in an unconstitutional taking of his property. He would not be able to develop his property to an economically viable use. Under the existing Chapter 25.112, the Planning Commission was required to determine, based on the evidence received, whether the application of these zoning standards to his property would result in an unconstitutional taking. If so, the City could either buy his property or exempt his development from these standards. The problem with this proposed amendment is that if the Planning Commission finds that the zoning standards, if applied, would result in the taking of private property, it could impose new standards and conditions on the property. That made no sense to him. His exception application only asked whether the zoning standards that he identified for the prohibition of the development on the ridge and the restriction of the building pad result, if applied against his property, in a taking of the property. That is the only determination at issue. The Planning Commission should not be allowed to impose new standards which are not existing zoning standards and have not been subject to any sort of public review and comment and place them on his property. That is impermissible spot zoning and it was unfair and discriminatory against his property. Mr. Nelson's first request was for the Planning Commission to not recommend adoption of this proposed amendment, but if they do choose to recommend this proposed amendment, he would then request that it not be retroactively applied to his pending application. His attorney's letter addressed why this amendment should not apply retroactively to his property; and from his perspective, it was simply unfair and unreasonable to continue to change rules and regulations governing the application procedure while people are in the midst of the application procedure and have 19 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16 2009 in good faith relied on those procedures in pursuing the development of their property. He asked that they please carefully consider his request and thanked them for their time. MR. BRUCE KUYKENDALL, 49-081 Sundrop Court in Palm Desert, stated that he was present to represent himself, Dave Baron, and their Barracuda LLC. They also own a five-acre parcel adjacent to Mr. Nelsons. They were also represented by Mr. Matteoni and they would be shortly filing their exception as well. He strongly felt that this was a continuation of the taking of their property that is unlawful. They wanted to go on record with every word that Mr. Nelson said to be applied to them. There was no one else wishing to speak. Vice Chair Limont closed the public hearing and asked for Commission comments. Commissioner DeLuna said she had a question to ask of one or both of them. Was it their intent to build on the ridgeline or was it their intent to build somewhere on the property? With all due respect, Mr. Kuykendall said he started back in 2002 with this process. He submitted numerous options. Their parcel was graded back in the '60's and there was roughly a 180-foot piece of that ridge that was leveled off back in the 1960's right at the end of the homesteading of these properties. They've tried a pad there, they've been denied. They did receive Planning Commission ,approval at one point, but immediately the City Council jumped on that. He had three different City Council members tell him that he would not build on that property on their watch. At that point, Jean Benson said they need to buy these gentlemen out if that was their stance. They went and talked to Carlos Ortega. He requested that they get appraisals on the property. They did that. They put up a Tolling Agreement while the Hillside Ordinance was passed. After it was passed, they received their Tolling Agreement unsigned and a letter from the City that they were no longer interested in purchasing their property. They have jumped through hoops, they are filing their exception, and they are paying for reports from appraisers and engineers. They've tried every little piece on there to try to make it. He's a grading contractor and has specialized in Palm Desert and hillside development and helped the Planning Commission set a lot of the standards that Bighorn had to adhere to. But then they went awry and now they are paying the price for the Hagadone property and 20 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16, 200 that project. The ridgeline that was drawn by the Planning Department pretty much encompassed all of the buildable sites on their property. It wasn't feasible to try to spend $250,000 to build a 10,000 square foot pad and they need a garage and a turnaround; it was not feasible. They are turning in reports to show that and this new amendment was just another continuation of the taking of their property, just handcuffing them. Commissioner DeLuna asked for clarification that the answer to her question was that they are only interested in building on the ridgeline of those lots. Mr. Kuykendall said he would build any where that is feasible, it just happened to be when the City Planning Department made their ridgeline map, which is a blown up topography of what they supplied them. They took a magic marker and pretty much said well, they can't go there, and you can't go over here, and so in reference to his parcel, it meant he couldn't even access it. So he has a $2 million piece of property that has no feasible use whatsoever. The only thing he could do was walk on it. Next door, while all this was going on, Stone Eagle came in and demolished 60 acres and didn't leave any of the prominent points or ridges that they were supposed to leave. He was getting a little sidetracked, but right across that imaginary property line and 30 feet from the sales office, and he was looking at their maintenance facility, their clubhouse, 500 cars parked, and right across that imaginary property line he couldn't do anything. Commissioner DeLuna said she could tell he was frustrated. Mr. Kuykendall said very much so. Commissioner DeLuna thanked him for his comments. Commissioner Schmidt said that this is a recommendation to the City Council to change the wording. That is their main goal this evening. She moved that they do just that, recommend this change. She thought the change clarified the existing ordinance and the intent of what is already there and should be done. It was unfortunate, and she knew what they were saying because she had heard it before a number of times, but their assignment this evening was to recommend to Council a clarification of somewhat vague language in the ordinance. She moved that they do that, just the way it is written. 21 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16, 200 Commissioner Campbell thought they could go ahead and propose to Council to go ahead and change that amendment, but she thought these two people should be exempt from this amendment. Vice Chair Limont seconded Commissioner Schmidt's motion. Action: It was moved by Commissioner Schmidt, seconded by Vice Chair Limont, approving the findings as presented by staff. Motion carried 3-1 (Commissioner Campbell voted no.) Ms. Aylaian noted that it sounded like that motion, second and approval was for staff's recommendation. Mr. Erwin concurred. Commissioner Schmidt clarified that it was her understanding that in the recommendation, there was no reference to the Nelson or Kuykendall properties. Mr. Erwin said that was correct. Commissioner Schmidt said that was her intent. She wasn't certain they had the authority to exempt anyone. That was her only reason; she didn't think they had the authority to exempt anyone at this point. Vice Chair Limont agreed with Commissioner Schmidt. She was hoping this helped to clarify, because she knew this had been a difficult situation for them, the City and the Planning Commission. She was pleased because for her at least, it helped to say this is the original intent, because the ridgelines vary so greatly. Commissioner Campbell asked the City Attorney if he wrote the amendment. Mr. Erwin answered yes. Commissioner Campbell stated that she would change her vote. It was moved by Commissioner Schmidt, seconded by Vice Chair Limont, adopting Planning Commission Resolution No. 2506, recommending to City Council approval of Case No. ZOA 09-253. Motion carried 4-0. IX. MISCELLANEOUS A. Request for a recommendation to the City Council to adopt a one-year moratorium on the issuance of conditional use permits for independent massage establishments while long- term regulatory strategies are studied. Mr. Kevin Swartz stated that on May 19, 2009, the Planning Commission requested that staff prepare a report and recommendation to the City Council for a moratorium to be placed on conditional use permits for all independent massage establishments for a period of one year while the 22 \ `rrTren. City of PahaPesert Speaker' ard Meeting Date: 47 Ib d If you are attending a City Council, Redevelopment Agency, or Planning Commission meeting and would like to address the Board, please complete the following information and give it to the City Clerk and/or Secretary In advance of the meeting. Thank you. Name: Pao i Q J\1 t�/.S 6 N Address: 7 Z 3-9� l� GSA J�r�Y2�T7rs -S:f l would like to speak under. 1. Oral Communications Section about: 2. Regular Agenda Item No. 3. Public Nearing Item No. In Favor Of In Opposition to Completion of this card is voluntary. You may attend and participate in the meeting regardless of whether or not you complete this document. Its purpose is to aid staff in compiling complete and accurate records. Thank you for your courtesy and cooperation. r-� City of Palm asert Speaker's Card Meeting Date:_ `r/ --Z� If you are attending a City Council, Redevelopment Agency, or Planning Commission meeting and would like to address the Board, please complete the following information and give it to the City Clerk and/or Secretary in advance of the meeting. Thank you. Name: Address: I would like to speak under. 1. Oral Communications Section about: 2. Regular Agenda Item No. C 3. Public Hearing Item No. In Favor Of In Opposition to Completion of this card is voluntary. You may attend and participate in the meeting regardless of whether or not you complete this document. Its purpose is to aid staff in compiling complete and accurate records. Thank you for vour courtesv and cooperation. CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT PLANNING COMMISSION STAFF REPORT REQUEST: Recommendation to the City Council to approve a clarification to Palm Desert Municipal Code Chapter 25.112, Exceptions Based on Unconstitutional Takings. SUBMITTED BY: Lauri Aylaian, Director of Community Development APPLICANT: City of Palm Desert CASE NO: ZOA 09-253 DATE: June 16, 2009 I. EXECUTIVE SUMMARY: Approval of the staff recommendation will send to the City Council a recommendation to add clarifying language to Chapter 25.112 of the existing municipal code. This chapter governs the granting of exceptions when a property owner asserts that a strict application of the code would result in taking their property without just compensation. II. BACKGROUND: In 2005, the City Council enacted Ordinance 1104, which is intended to protect a property owner's rights against a governmental "taking" of their property. Chapter 25.112, Exceptions Based on Unconstitutional Takings, ensures that a property owner can receive an exception from the zoning ordinance if a strict application of the ordinance would remove all economic value from the property. The language of the chapter spells out the process by which such an exception would be granted. To date, no application for such an exception has been fully processed, or even advanced to the stage wherein a public hearing is held before the Planning Commission. An application for two exceptions (one for size restrictions and one for the prohibition against building on hillside ridgelines) was recently submitted and is now being studied by staff. Staff Report Case No. ZOA 09-253 June 16, 2009 Page 2 of 3 III. PROJECT DESCRIPTION: The proposed project seeks to clarify language in the existing municipal code. As such, the proposed project would add the following sentence to Section 25.112.020 of the municipal code: E. The Planning Commission, upon granting an exception pursuant to this section, may limit the scope of the exception or impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of property without just compensation. IV. ANALYSIS: The City has received and is now processing an application for exemptions from the size restrictions and the prohibition against building on a ridgeline. This application is being evaluated and processed consistent with the requirements of Chapter 25.112 of the Palm Desert Municipal Code. The chapter in question is now being applied for the first time since its adoption in 2005. While reviewing the application described above, the City Attorney has recommended that a clarification be made to Chapter 25.112 to explicitly describe the ability of the Planning Commission to condition any exemptions that they approve. This ability is implicit in the current code, but the recommended language could ward off potential uncertainties in future applications. V. ENVIRONMENTAL REVIEW: This project is an administrative activity of a governmental body and is not a physical change to the environment and, therefore, is exempt from CEQA. The Director of Community Development has determined that no further environmental review is necessary. VI. RECOMMENDATION: That the Planning Commission adopt the findings and adopt Planning Commission Resolution No. recommending to City Council approval of Case No. ZOA 09-253. G:Tlanning\Tanya Monroe\word file\PC Stafl 9epoft\ZOA 09-253 Unconstitutional TakingsAoo Staff Report Case No. ZOA 09-253 June 16, 2009 Page 3 of 3 VII. ATTACHMENTS: A. Draft Resolution B. Legal Notice C. Memo dated June 1, 2009 from City Attorney David J. Erwin to Lauri Aylaian D. Section 25.112 Exceptions Based on Unconstitutional Takings Submitted by: Lauri Aylaian Director of Community Development Approv I: mer Croy ACM for Devel ent Services G?Plenntng\Tanya Monroe\wwd lilesTC Staff Repons\ZOA 09-253 Ummnstitutional Takings.doc PLANNING COMMISSION RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO CITY COUNCIL APPROVAL OF A ZONING ORDINANCE MODIFICATION CLARIFYING LANGUAGE IN SECTION 25.112, EXCEPTIONS BASED ON UNCONSTITUTIONAL TAKINGS. CASE NO. ZOA 09-253 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 16th day of June, 2009, hold a duly noticed public hearing to consider the request by the CITY OF PALM DESERT for approval of the above noted; 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. 06-78, the Director of Community Development has determined that the proposed clarification of the Zoning Ordinance is not a project as defined under CEQA and no further environmental review is necessary, 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 recommending approval of said request to the City Council: 1. That the Planning Commission, in order to mitigate potential environmental impacts, may want to place conditions on a project when granting of an exception based upon unconstitutional taking; and 2. Though the power to condition any approval is inherent in the various approval processes in the Zoning Ordinance, Chapter 25.112 of the Palm Desert Municipal Code does not explicitly permit the Planning Commission to place such conditions; and 3. That the proposed Zoning Ordinance Amendment will not negatively impact the public health, safety or general welfare. 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 the Planning Commission does hereby recommend to the City Council approval of Case No. ZOA 09-253. PLANNING COMMISSII.r+ RESOLUTION NO. PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 16st day of June, 2009, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: VAN G. TANNER, Chairperson ATTEST: LAURI AYLAIAN, Secretary Palm Desert Planning Commission GAPlanning\Tanya Monroe\word tilea\PC AedWo IZOA M253dw 2 CIIY PhLM DESERI 73-510 FRED WARING DRIVE PALM DESERT,CALIFORNIA 92260-2578 TEU 76o 346—o6ii FAR:760 341-7098 info palm-daavmg CITY OF PALM DESERT LEGAL NOTICE CASE NO. ZOA 09-253 NOTICE OF INTENT TO ADOPT A ZONING ORDINANCE AMENDMENT TO CHAPTER 25.112 EXCEPTIONS BASED ON UNCONSTITUTIONAL TAKINGS ADDING SECTION 25.112.020 E. STATING: "THE PLANNING COMMISSION, UPON GRANTING AN EXCEPTION PURSUANT TO THIS SECTION, MAY IMPOSE CONDITIONS TO ACHIEVE TO THE EXTENT REASONABLY FEASIBLE THE OBJECTIVES OF THE STANDARD OR STANDARDS TO WHICH AN EXCEPTION IS BEING GRANTED, BUT WITHOUT CONSTITUTING A TAKING OF PROPERTY WITHOUT JUST COMPENSATION." PROJECT DESCRIPTION: The purpose of Palm Desert Municipal Code Section 25.112 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 Quality Act as implemented by Chapter 25.88 (Environmental Impact Reports), to parcels within the city do not create a taking of private property prohibited by federal or state Constitutions. Section 25.112,020 outlines the requirements and procedure for the application and hearing process. The City of Palm Desert Community Development Department is proposing a Zoning Ordinance Amendment that will add a subsection E to Section 25.112.020 stating that"The Planning Commission, upon granting an exception pursuant to this section, may impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of property without just compensation." PROJECT LOCATION: City wide, City of Palm Desert PUBLIC HEARING: SAID public hearing will be held on Tuesday, June 16, 2009 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 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 Planning Commission at, or prior to,the public hearing. PUBLISH: Desert Sun Lauri Aylaian, Secretary June 6, 2009 Palm Desert Planning Commission MEMORANDUM TO: Lauri Aylaian, Director of CLIENT-MATTER NO.: 72500.00788 Community Development FROM: David J. Erwin, City Attorney DATE: June 1, 2009 RE: Amendment of Chapter 25.112 (Exceptions Based on Unconstitutional Takings) As you know, pursuant to chapter 25, 1,122 property owners may apply to the Planning Commission for an exception to the standards of Title 25 (Zoning) if they believe that the application of those standards would result in an unconstitutional taking of their property. Mr. Nelson has recently applied pursuant to that chapter for an exception to the prohibition of ridgeline development and pad and building size restrictions. If the Planning Commission were to grant the requested exceptions, it would likely want to place conditions on the approval that would effectuate the purpose of the exempted standards to the extent possible without resulting in a taking. In my opinion, the ability to condition approval is implicit in all approvals by the Planning Commission. However, Chapter 25.112 is silent on that issue. Given the likely controversial nature of exception requests, I believe that it would be better to amend Chapter 25.112 to make explicit the Planning Commission's ability to impose conditions on the approval. Consequently, I request that staff initiate a zoning amendment to amend Section 25.112.020 by adding: "E. The planning commission, upon granting an exception pursuant to this section, may impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of property without just compensation. " Robert W. Hargreaves, Deputy City Attorney BEST BEST & KRIEGER LLP RWH:dm RMPU BVtHARGREAVES\307827.1 25.112.010 fr l to Chapter 25.112 h. Reduced profits if the exception is not granted, including the assumptions underlying the estimates. EXCEPTIONS BASED ON UNCONSTITUTIONAL 3. Additional Information. Such additional inforna- TAKINGS. tion as the city may request in order to take action on the request.The applicant shall cooperate with city requests for Sections: financial information regarding the property.Confidential 25.112.010 Purpose. business information provided by an applicant to the city 25.112.020 Application and hearing. shall remain confidential consistent with the requirements r of the Public Records Act(Government Code Section 6250 25.112.010 Purpose. et seq.). The purpose of this chapter is to ensure that the applica- 4. Consultants and Experts. The name, address and lion of the standards contained in Title 25 Zoning,includ- occupation of each consultant and expert providing infor- r ing the environmental review and mitigation process re- mation or in any way assisting in the preparation of the quired by the California Environmental Quality Act as im- application. 1 plemented by Chapter 25.88 (Environmental Impact Re- C. In acting upon an application, the planning com- ports),to parcels within the city do not create a taking of mission shall consider, among other matters, each of the private property prohibited by federal or state Constitu- following: lions.(Ord. 1104§ 1 (part),2005) 1. Present use of the property and duration of that use, r' including: �a 25.112.020 Application and hearing. a. Each general plan designation and zoning classifi- A. Any applicant that contends that the application of cation applied to the property,and T the standards of Title 25, including the environmental re- b. Each use to which the property was put; view and mitigation process required by the California En- 2. Fair market value of the property before the restric- vironmental Quality Act as implemented by Chapter 25.88 tion that is the subject of the exception application im- (Environmental Impact Reports),will result in a taking of posed; property withoutjust compensation in violation of the fed- 3. Alternate uses that are available for the property; eral or state Constitutions may apply for an exception to and these standards pursuant to this section. 4. The fair market value of the property if the excep- B. The applicant shall provide information that sets tion is denied. forth the basis upon which the applicant believes that the D. The planning commission shall make its decision exception is necessary to provide the property with eco- based on the evidence presented to it.The decision shall be nomically viable use.This information shall include each in writing with specific findings on the economic impact of of the following: the application of the restriction for which the exception is 1. Basis for Application. requested.(Ord. 1104§ 1 (part),2005) 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 im- posed upon the property for public improvements; d. Existing activities for the property; t 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 r= - the exception is not granted;and 484-7 (Palm Desert Supp.No.11,8-07) w- CITY CLa�K S Oi EICE PALM DESERT, CA PROOF OF PUBLICATION This is space for County Clerks Filing Stamp (2015.5.C.C.P) 2609 JUN 12 AM 11: 0u 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;1 am over the age of eighteen - — - - years,and not a party to or interested in the No 2456 above-entitled matter.I am the clerk of a CITY OF PALM DESERT principal LEGAL NOTICE printer of the,DESERT SUN PUBLISHING CASE NO.ZOA 09.253 COMPANY a newspaper of general circulation, NOTICE OF INTENT TO ADOPT A ZON- rinted and published in the city of Palm Springs, IHG EROINANCf AMEBOMENT ED- P P tYCHAPTER 2NST2UXCEPTTONS BASED Coun of Riversid and which newspaper has been ON ' tIRCf0N5TITUTfONAL E.-STAS- ty e, ADORN-SEC710N.=25.1t2:'-- sTAT adjudged a newspaper of general circulation by the ING_ Superior Court of the County of Riverside,State of THE PLANNING COMMISSION, UPON California under the date of March 24,19SS.Case GRANTING AN EXCEPTION PURSUANT TO THIS SECTION MAY IMPOSE CON- Number 191236;that the notice,of which the OmONS TO ACHIkVE TO THE EXTENT REASONABLY FEASIBLE THE OBJEC- annexed is a printed copy(set in type not smaller TIVES OF THE STANDARD OR STAND- than non pan ARDS TO WHICH AN EXCEPTION IS BE- ING GRANTED BUT WITHOUT CONSTI - and entire issue of said newspaper and not in an TOTING A YAIONG OF PROPERTY Y WITHOUT JUST COMPENSATION.' supplement thereof on the following dates,to wit: PROJECT DESCRIPTION: The D a o1 Palm Desert Muniriptest Sao- June 61",2009 non 2s. 12 is to ensure that the epplan ,umdards contained in to 25 Yani 2 .8Indudi -- ---'-'— the environmental review aIM!Mtiin pfoc li nr ..red by the Calif omla Environmental twirl y Act as Implemented b Chapters wi i(En0 c mental Impact Re no to parcels wlUm t ,�iN All in the year 2009 eddd oy lerdereI or staaite°cons ihn or s... v t Section 25.112.020 outlines the requirements Ono Y ) penalty perjury Pjrhe City of Palm De�sec8Comnu heaDeveiofOCp ess I certify(or declare under anal ofthat the h foregoing is true and correct. Department Is P=. a Zoning Ordnance g g Amendment that willll ado a subsection E to Sec- '' tie,25.112.020 real n sit a chepYwIa puregoam o mission,.upon9 Dated at Palm Springs,California this—9rb,—daythis secifer.may Impose coiMnana to achieve to the extent Mason abty feasible Ne oolect of do an ax the standard or Sien�arda to which on bon a of--- June -----,2009 being ggrmamad,wt wnlloul wash" "g a ta�C'"y of 1 properywaho' juyl compensation. PROJECT LOCATION :City wide.City of Palm Desert PUBLIC HEARING: SAID bile been ng will be held on Tuesday, rC June I .2009 at 6: p.m:m the Coumh Chem- -ber at 10 Fred Waring Drive, PPalm alm Dawn. California-73 at which time and Place all Interested persan5 are invited to attend and be heard.Written comments comem. in all items covered by this Public hearing.-1100 shall be accepted up to mo date ee Pml a .In. formation wncemin the prI negative declaration Is availabbllee for review mn the Department of Community Development et the uc above address betw'aen thhegg hours of 6:00 am. 1 and 5:00 P.M.posed ayctlorms i_n counYyou°may be fenggee the prop ttmose issues You or some IIt to raisin onA' in i Me notice rated written rp,re°spoMerm deVwo d i to the Planning Commi$sl°n at, or Dder to, the blic g. 1 Lauri Aylman S%reta Palen Oesen Planning Z^mksion Published:616109 MEMORANDUM TO: Lauri Aylaian, Director of CLIENT-MATTER NO.: 72500.00788 Community Development FROM: David J. Erwin, City Attorney DATE: June 1, 2009 RE: Amendment of Chapter 25.112 (Exceptions Based on Unconstitutional Takings) As you know, pursuant to chapter 25, 1,122 property owners may apply to the Planning Commission for an exception to the standards of Title 25 (Zoning) if they believe that the application of those standards would result in an unconstitutional taking of their property. Mr. Nelson has recently applied pursuant to that chapter for an exception to the prohibition of ridgeline development and pad and building size restrictions. If the Planning Commission were to grant the requested exceptions, it would likely want to place conditions on the approval that would effectuate the purpose of the exempted standards to the extent possible without resulting in a taking. In my opinion, the ability to condition approval is implicit in all approvals by the Planning Commission. However, Chapter 25.112 is silent on that issue. Given the likely controversial nature of exception requests, I believe that it would be better to amend Chapter 25.112 to make explicit the Planning Commission's ability to impose conditions on the approval. Consequently, I request that staff initiate a zoning amendment to amend Section 25.112.020 by adding: "E. The planning commission, upon granting an exception pursuant to this section, may impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of property without just compensation. " Robert W. Hargreaves, Deputy City Attorney BEST BEST & KRIEGER LLP RWHArn RMPMRHARGREAV FS007827.1 CITY 01 P h L M DESERt `* 73-510 FRED WARING DRIVE PALM DESERT, CALIFORNIA 92260-2578 TEL: 760 346-o6u FAx: 760 341-7098 info@palm-desert.org CITY OF PALM DESERT LEGAL NOTICE CASE NO. ZOA 09-253 NOTICE OF INTENT TO ADOPT A ZONING ORDINANCE AMENDMENT TO CHAPTER 25.112 EXCEPTIONS BASED ON UNCONSTITUTIONAL TAKINGS ADDING SECTION 25.112.020 E. STATING: "THE PLANNING COMMISSION, UPON GRANTING AN EXCEPTION PURSUANT TO THIS SECTION, MAY IMPOSE CONDITIONS TO ACHIEVE TO THE EXTENT REASONABLY FEASIBLE THE OBJECTIVES OF THE STANDARD OR STANDARDS TO WHICH AN EXCEPTION IS BEING GRANTED, BUT WITHOUT CONSTITUTING A TAKING OF PROPERTY WITHOUT JUST COMPENSATION." PROJECT DESCRIPTION: The purpose of Palm Desert Municipal Code Section 25.112 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 Quality Act as implemented by Chapter 25.88 (Environmental Impact Reports), to parcels within the city do not create a taking of private property prohibited by federal or state Constitutions. Section 25.112.020 outlines the requirements and procedure for the application and hearing process. The City of Palm Desert Community Development Department is proposing a Zoning Ordinance Amendment that will add a subsection E to Section 25.112.020 stating that "The Planning Commission, upon granting an exception pursuant to this section, may impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of property without just compensation. PROJECT LOCATION: City wide, City of Palm Desert PUBLIC HEARING: SAID public hearing will be held on Tuesday, June 16, 2009 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 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 Planning Commission at, or prior to, the public hearing. PUBLISH: Desert Sun Lauri Aylaian, Secretary June 6, 2009 Palm Desert Planning Commission