HomeMy WebLinkAboutOrd 1104 ZOA 5-3 Exceptions Based on Unconstitutional TakingsCITY 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
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
ordinance further, and since the
language to include "takings" as a
reflected in the draft ordinance.
Submitted By:
/*%-� A -
Phil Joy
Associate Transp rtation Planner
an attached report explaining the proposed
planning commission meeting, he has added
result of a CEQA action. The new language is
Department Head:
P ilip r
Director of Community Development
Staff Report
City of Palm Desert, ZOA 5-3
Page 2
November 10, 2005
Approva .
Homer Croy, A i nt City Manager for Development Services
Carlos L. Orte , City Manager
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
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 Ap ov d: Revie d and A r ed:
ilip Drell 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 ZoninR, 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
Oualitv 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.
C: Documents and Settings Robert.Hargreaves',My Documents\PALM DESERT -Ordinance Re Takings.doc
ORDINANCE NO. 1104
(2)
property;
Economic data.
C.
public improvements;
D.
E.
F.
G.
granted; and
H.
Current market value of the property;
Dates and amounts of invested capital following acquisition of the
Description and amount of each assessment imposed upon the property for
Existing activities for the property;
Planned activities for the property, including the timing for development;
Market value claimed if the exception is denied;
Portion of the property retaining economic use if the exception is not
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:
and
(1) Each general plan designation and zoning classification applied to the property;
(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:,Documents and Settings, Robert.Hargreave-s`My Documents' 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
C:\Documents and Settings\.Robert.Hargrtaves\My Documents.PALM DESERT - Ordinance Re Takings. doc3
ORDINANCE NO. 1104
City of Palm Desert, California
APPROVED AS TO FORM:
David J. Erwin, City Attorney
City of Palm Desert
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MINUTES
PALM DESERT PLANNING COMMISSION _ OCTOBER 18. 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, C2 05-02,
PP 05-12 and PM 33837, subject to conditions as amended. Motion carried
4-0 (Commissioner Finerty was absent).
m=Oo 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.
Action:
Chairperson Tschopp opened the public hearing and asked for any testimony
in FAVOR or OPPOSITION. There was none and the public hearing was
closed.
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).
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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.
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