HomeMy WebLinkAboutOrd 1192 - ZOA 09-253 - PDMC Ch. 25.112 Xcptn Based on Unconstitutional Takings Ordinance No. 1192
CITY OF PALM DESE
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DEPARTMENT OF COMMUNITY DE EL��I'��I��� ' �� �
� �"�.. C�s�It��iE��'�...... —
STAFF REPORT g: �7_ ��'
P�►���TQ 2i�D R��t�l�
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. 1192
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.
i 192 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 properry 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
properry 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
Appro al:
Jo . Wohlmuth
Ci anager
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.
ORDINANCE NO. 1192
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. 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
properry 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 �uality Act as
implemented by Chapter 25.88 (Environmental Impact Reports), to parcels within the
ciry 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: Ciry 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. tf 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 Ciry of Palm Desert,California
. %"_ `,....
�' ��
MEMORANDUM
To: Lauri Aylaian, Director of CLIENT-MATTER NO.: 72500.00788
Community Development
FROM: David J. Erwin, City Attorney
DA�: 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 standazds 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 arnendment 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
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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-
� TAKlNGS. tion as the city may request in order to take action on ihe
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(Govemment Code Section 6250
25.112.010 Purpose. et seq.).
� T'he purpose of this chapter is to ensure that the applica- 4. Consultants and Experts. The name, address and
tion 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 Califomia Environmental Quality Act as im- application.
plemented by Chapter 25.88 (Environmental lmpact 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 properiy prohibited by federal or state Constitu- following:
tions.(Ord. 1104§ 1 (part),2005) 1. Present use of the property and duration of that 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. Altemate 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 econornic use if
the exception is not granted;and
�
484-7 (Paim Desert Supp.No. I 1,8-07)
�
�
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�' 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 COMMISSION RESOLUTION NO. 2506
PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert
Planning Commission� held on this 16�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 COMMISSION 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
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DESERT PLANNING COMMISSION JUNE 16 200
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 pealable to the City
Council, and the applicant may appeal.
;�:�
�
� ,��
C. Case No. ZOA 09-253 — CITY OF'�� LM [�� � RT, Applicant
Request for a recommer�€� ��� n to the City�`� � uncil to
approve a clarification ����� alm Desert Munic���� Code
Chapter 25.112, Exce� ns Base on Unconst`r " � nal
Takings. �'�� '�� �
Ms. Lauri Aylaian exp{��d that the it'� ,,��efore the Planning Commission
was a clarification of'°`� ���`� languag�� � the Zoning Ordinance. This
language dealt with cir� st���,,in whic "�� applicant with a piece of
property they would like t,q evelo�r�y' ves th'"��� �a strict application of the
Zoning Ord��t��. would°`���: su�«� � ��_"��" nstitutional taking of their
property. I���ofh�' ��� ,ords, t � .�� '��'` ieve tha���� ey would lose all economic
value ar�.�conomic t� nefit of t� �property if the Zoning Ordinance is strictly
appl�et�� In instance� like that,��hey could apply for an exception to the
Zoning (`?rdinance and the� ar� r�quired to put forth a certain amount of
informatioc�tha�_�nrou(d��� deme��s���te why they believe that an exception
rt��to be��gr�nted in order fc��them to be able to retain some beneficial
����� use anc�conom�§use of their property.
� � �.
�,
She furthe explainec�ythat this was passed in 2005, and had not yet been
� �, applied. Sta�`yvas going through a case now where they actually received
�.
� application�for an exception, and as they were working on the case,
th�� were wo►kmg with legal counsel, and the attorneys recommended
that tk�is modification be made to clarify explicitly that the Planning
Commiss��n 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
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PALM DESERT PLANNING COMMISSION JUNE 16. 2009
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 actuall has been requested,
and that would be an exception to a prohibitior� '' uilding on a ridge on
the hillside. If they could imagine, the hillsid `� s topographically varied.
Each parcel is different. It's difficult to ma -ge alizations because the
topography is so different from one parce��o anot g,r, but if an applicant
wanted to build on their hillside parce� nd they fourt�that all the places
they thought were buildable were a ally ridges identi��by the Hillside
Ordinance, they could propose ttt an exception be grant�so that they
could build on that ridge becaus if they cau n't, they woulc�'r�ot be able
to develop their property. If that ca�e befor, �e Planning Commission, it
was staff's belief that the Planning t'�mm` sion already had the ability to,
and should be able tt�;: cc�ndition an ex� tion so that, for instance, they
could say they could ��i1d�`�� this portiar�:of the ridge, but not another.
They could tailor it to b���s�ecifi��c tQ that proper��r, which staff believed was
the intention of the exist�iing Zontn�� Qrdinart�e and was appropriate
discretiona��� �sion mak�g k��; f�i�� F����t��ng Commission in order to
make ar�,� � ��p�"�� hat com���to the int�t of the standards for hillside
devela �> nt. She�-��� � ked for at�y questions. She noted that there were a
coupl�r�f interestec����arties in th�audience.
M�
'�� � � �� ;
Ms Aylara��a� , �po�n�es� �ot� t � the Planning Commission received a
�„I�#���from �Il�����eoni, O'Laughfi��& Hechtman, attorneys representing the
;��=
� ��'�� applie�;for th" ��ase she mentioned wherein this is the first application
they rece���d for���exception to the Hillside Ordinance. That letter was
distributed ��,,the Co�mission and if they had not had an opportunity to
read it, she r��commended taking a minute to read through it to see their
� ��`�omments. (Gt�mmission did so.)
Vice Chair L,imont o ened the public hearing, and referring to the Request
to Spe���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 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 the;,� ption application. His
application seeks exception to the � W g standards prohibiting
development on ridgelines and res F�� d and building size. He
submitted the application, alt� e rei� ' ed appraisal and
engineering analyses, which , wed that if�' se standards are
applied to his property, it w���.�����sult in an unco � tional taking of
his property. He would n ����e able to develop hi'��°� operty to an
economically viable use� su �
q.;.
Under the existing Chapter � ��� ��`�`�� e Planning Commission was
required to det���ne, based or�� w evidence received, whether the
�; �.,��
application of t ��, ����g stand��� to his property would result in
an unconstitutior� ta�i�r�� �f so, t ,�City could either buy his
property or exem his d�tr� � enf f��n these standards. The
probl�rr���v�rith this po '���� ar��� ent is that if the Planning
Ca issio�=�inds tha���,�' oning sf�`' dards, if applied, would result
ir�„�taking � privat� �� „�perty, it could impose new standards and
conditions or�� the prop��ty. That made no sense to him. His
ex�eption application only �,sked whether the zoning standards that
,.
he id�ntifie�i �or the p�oh�k��ion of the development on the ridge and
v�the res�iction of the���k�ilding pad result, if applied against his
� ��� �Q�erfy, i� a taking of the property. That is the only determination
���� at t�ue. T�t�_ Planning Commission should not be allowed to
impos� new st# dards which are not existing zoning standards and
�' have n�t beer�subject to any sort of public review and comment
�� and pla�e them on his property. That is impermissible spot zoning
and it w�s unfair and discriminatory against his property.
M�'� �Jelson'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
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PALM I�FSERT 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 als wn a five-acre parcel
adjacent to Mr. Nelson's. They were °` represented by Mr.
Matteoni and they would be shortly fil� � eir exception as well. He
strongly felt that this was a cont�` � of the taking of their
property that is unlawful. They wa t d to , n record with every
word that Mr. Nelson said to b�;;� plied to th��°��:
,,`f,
There was no one else wishin� `���speak. Vice Chair Li�� t closed the
public hearing and asked for �t� ission cQ ents.
Commissioner DeLuna said she h�� _ ��`� ��stion to ask of one or both of
them. Was it their int to build on �� idgeline or was it their intent to
build somewhere on th���i���?
��"� � �<
With all due resp� Mr Ku���iall s2�� he started back in 2002
with thi�p�pcess. H� ula�":�' d " '� ` , us options. Their parcel was
gra,, �� ba���.'n the `�i�� ; d there���`� s roughly a 180-foot piece of
tht ridge th��was lev� d off back in the 1960's right at the end of
the homesteatling of th�� properties. They've tried a pad there,
they've be�� denied. T`�;�y did receive Planning Commission
app�val �t��one���pain�,: b+���iimediately the City Council jumped on
� � �..that. Me��had three diff�rent City Council members tell him that he
'��� ����a�uld nci�k�uild on that property on their watch. At that point, Jean
�'� B��r�on sai��t�ey need to buy these gentlemen out if that was their
stan�� They v�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 passed, they received their Tolling Agreement unsigned and a
` letter; from the City that they were no longer interested in
pu[��hasing 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. 2009
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. �.
a
Commissioner DeLuna asked for clarificatiQt'� hat the answer to her
question was that they are only interested ' �tf.�i�ng on the ridgeline of
those lots. � '�
�
Mr. Kuykendall said he woult� `'ild any where th�°i� feasible, it just
happened to be when th��� Planning Departm��t made their
ridgeline map, which i� �a blown u topography o�:�awhat they
supplied them. They toof� ��, agi�„ �rker and pretty�much said
well, they can't go there, arr�yo ��an't go over here, and so in
reference to h���"p�,�cel, it mear���. couldn't even access it. So he
has a $2 miltrf�i� p��� of prop���i�i that has no feasible use
whatsoever. The���i�nly�thrri� k�e coufc� d`Qawas walk on it. Next door,
while all this was gi�ing on, S�'an�, Eag��came in and demolished
60 a��'�� d didn't [���v� a �`"of tt�t�pcominent points or ridges that
tf�+� ���r��'. posec� �� �� ve. He w�s getting a little sidetracked,
��"� right acr`�` s that irrt�ginary property line and 30 feet from the
"ales office, �d he was }ooking at their maintenance facility, their
c��hous�, � �Q����c�rs pa�t�ed, and right across that imaginary
pro��rty,l�� �i�ec�u�s3i�"���'anything.
, ..
�� �'��Comm���ioner���una said she could tell he was frustrated.
�'� �9��
Mr. Kuykendal�'said very much so.
�
�ommissionerDeLuna thanked him for his comments.
Comtnissioner Schmidt said that this is a recommendation to the City
Counci� tt� change the wording. That is their main goal this evening. She
moved f�iat 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.
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MINUTES
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, seco by Vice Chair Limont,
approving the findings as presented by� , r ff. Motion carried 3-1
(Commissioner Campbell voted no.) �"`�_
,
Ms. Aylaian noted that it sounded lil� �; at motion,����� � ond and approval
was for staff's recommendation,�< . Erwin concur��'�" Commissioner
Schmidt clarified that it �r ������ her understandm�:,d at in the
recommendation, there was nc�� eference �� the Nelson ��. uykendall
properties. Mr. Erwin said that w� corr �°� ommissioner �midt said
that was her intent. She wasn't ce"���� ���r�'� had the authority to exempt
anyone. That was h���J reason; sf���� 'dn't think they had the authority
to exempt anyone � �oint �ii� Chair Limont agreed with
Commissioner Schmid�:���he��`w��hoping tF� ;,helped to clarify, because
she knew this had beer� diffict,���`�`��tiorr�� them, the City and the
Planning Gommti�sion. Sh� as �� ��s��� use for her at least, it helped
to say thi�,," �the o��.nal mte�� ` cause th `�" idgelines vary so greatly.
�
Commi�sioner Campbell ask� the City Attorney if he wrote the
amendm�nt. Mr. Esrwin answer�i yes. Commissioner Campbell stated
that she w�uld c�ange her vote:w�,�`
, �s � �
�� �� ��It was n�aved by`Commissioner Schmidt, seconded by Vice Chair Limont,
��� adopting �I�nning�� �ommission Resolution No. 2506, recommending to
City Council approval'gf Case No. ZOA 09-253. Motion carried 4-0.
�
� ,� �
IX. M��CELLANEOUS
�
A. 9Request 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