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Home My WebLink AboutSupptl Info Rcvd after 4/2/10 - ZOA 10-41 Mat�eoni t �'Laughlin Hechttnan � L A -W Y E ` R S � � � ` April 8, 201°0 i�o rrn a n L. fbl t�t l e.o o i V%8�E-Mal/t0 /"�S�aSS21�C�CL�a/!1i-t�@SBf�.Ca.US P��;;;)' 1YI. 0'I_..tughlin ` � 13rndlet° A�9. ,ti3,itteoni � � 13�'�`"" `: ��"'�,`"'`"�` Rachelle D. Klassen � � �� ,>�,��E�� City Clerk, City of Palm Desert � Palm Desert Civic Center 73-510 Fred Waring Drive " Palm Desert, CA 92260 Re: City Council Meeting Agenda Item XVII A, Aprit $, 2010 Letter Opposition to Proposed Amendments to the Hillside- Planned Residential Zone Relating to Definitions/Development of "Rock Outcroppings" Dear Ms. Klassen: Attached is a letter to the Mayor and City Cauncil Members from ' my law firm on behalf of our clients David and Edwina Nelson, and David Baron and Bruce Kuykendall opposing the proposed adoption of Ordinance No. 1211. Would you please see that this letter is distributed to the Mayor and each of the City Council Members and made a part of the �,� �' administrative record. Please call me if you have any questions with "-� regard to this request or the submittal of this letter. � — �o� — w�„� � {"" =�- u� Yours truly, e.�.t�� ao ,� • , ��.�:� � ,;'-' j' =`.�� ,�,,�. . },C � , �� {��fr-��'!� ,�'�,,"? �� / �� / ►-� o PEG, "�'�� . O LAU�HLIN U � PMO/mr Attachment � 84� 7'he Alameclx � � San .Iose, C�1 95126 � ph. 408.193.4•3�0 �Id �j fa�;. ��r08.293.4G04 . � ��. � . „�� ; .�... , ;:��i �� i� it�'ar .�.r't;��l�ef.��.^>tlC� ii„ �:�;n:�t3 .S�t'1��3! If s';:1��C��.fn www.matteoni.com Matteoni � �'Laughlin . Hechrman , L A W Y E R' S April 8, 2010 V'cirman L;. :ltatteoni Ye�x�n�}' 1�1. CYI..z�u�;hlin I�i�ttlle�� 1T. �4�i-tteoni � � Honorable Mayor and City Council Members ��'`"��°�' �'. ��°�'`�"a„ The �ty of Palm Desert � � � �� r��«�� Palr� Desert Givic Center � 73-510 Fred Waring Drive , Palm Desert, CA 92260 � Re: Agenda Item XVII A,April 18, 2010 City Council Meeting Oppasition to Proposed Amendments to th�e Hillside- Planned Residential Zone Relating to ��; �' Definitions/Dsvelopment of "Rock Outcrappings" ��.c., � . � � � . �O� � t:a:`.�CG ct , �-�� Dear Honorable Mayor and City Councii Members: � E,.s c�u� � ".)�:.:G I ;,��-'.� � This law firm represents David and Edwina Nelson, and David �--�� ,� Baron and Bruce Kuykendali, owners of properties on Upper Way �;-� o West in the City of Palm Desert. Their properties are located in the {=� "' Hillside-Planned Residential (HPR) zone. As you are likely aware, for years now they have been attempting to develop their property which development has become infeasible as a result of the City's 2007 amendments to the HPR zone prohibiting development on or across ridges (Section 25.15.030). The City's propased amendmerrt to the HPR zone, under consideration by the Council at its April 8 meeting, seeks to further restrict and preclude any develapment in the hillside area by prahibiting development on or across any rock outcroppings. These owners oppose proposed ordinance Na. 1211 on grounds that it does not satisfy the constitutional provisions against statutory vagueness, it is overbroad, and if adopted will result in an unconstitutional taking of property in violation of the United States Constitution's Fifth Amendment and the California Constitution Article 1, Section 19. � 848 'I'hc Alamecia � � , � � 52111 JOSf', �.,e� 9�IZ�) ' � • . . . ph. A,0$.�93.�360 �1 �•� i'as. 4p8.293.4004 �1 wtivw.matteoni.co�2i Honorable Mayor and Cify Council Members Aprii 8, 2090 City of Patm Desserf Page 2 The Proposed Ordinance is Unconstitutionally Vague and Uncertain and Overbroad. The proposed amendment (Sec. 25.15.105) defines the term "rock outcroppings" as follows: "A rock outcrapping is a rock formation that is part af an underlying layer of rock, that projects above the surface of the surrounding ground." The definition is extremely vague. The City's definition provides no size parameters ' as to what would constitute a rock outcropping to preclude development. There is no standard as to how far above the surface the underlying iayer of rock would have , to project to constitute a rock outcropping. Thus, conceivably, any group of rocks protruding above the surface could constitute a rock o,utcropping even if the rocks � protruded only inches above the surFace. And there is no standard with regard to the width or spread of the rock outcropping, which would result in the preclusion of development on or across it. From the owners' perspective,the terrain and geology of the hillside where their properties are located, under the City's definition, is a giant rock outcropping, with bits of soil strewn about. . The judicial test for determining whether a zoning standard is too general, vague,.or uncertain is that if"...men of common intelligence and understanding must guess as to its meaning and differ as to its application, it violates the first essential of due process of law." (Longtin's Cal�and Use (2d ed. '1987) � 1.60[3] citing to People y. Gates (1974) 41 Cal.Rpp.3d 590, 595.) The proposed ordinance does not satisfy the constitutional provision against statutory vagueness as it is not sufficiently definitive to provide adequate notice of the act proscribed. It fails to provide definitive guidelines as to what constitutes a rock outcropping, which an owner ` would have to avoid in the development of his or her property. The language used in legislation prescribing a standard of conduct which is the subject of the regulation " . . . must be definite enough to provide a standard of conduct for those whose � activities are prescribed, as well as the standard by which the agencies c�lled upon to apply it can ascertain compliance therewith." Ross v. City of Rol/ing Hills Estafe (1987} 192 Cal.App.3d 370, 375. It appears from the staff report that the City's intended goal in adopting the proposed amendments is to "not disturb natural landmarks or f�atures." But, the definition of rock-outcropping is so vague and overbroad that it would include any grouping of rocks that protrude above the surface, whether ar not the rocks would be considered a natural landmark or feature. (The Merriam-Webster Dictionary defines "landmark" as "2a. a conspicuous object on land that marks a locality; 4. a structure of unusual historical and usually aesthetic interest.") , � Honorable Mayor and City Council Members Apri18, 2090 City of Palm Dessert , Page 3 The Propased Ordinance Would Result in an Unconstitutional Taking of ` Property. The owners opposed the Gity's 2007 amendment to the HPR zone which prohibited "development on or across ridges on the basis that the zoning amendment would result in a regulatory taking of their properties.�-The amendment was adopted by the City and thus the owners, in 2009, filed �or an exception to this , development standard�based on an unconstitutional taking pursuant to Chapter 25.112 of the Palm Desert Municipal Code. If the proposed amendment to preclude any development on or across any "rock outcropping" in the HPR zone is adopted, the owners will have absolutely no ability to devefop any#hing on any portion of their praperty. Depending on how the City may interpret is definition of"rock cropping," there are rock outcroppings 3 throughout the owners' properties. This proposed development regulation amounts to a per se taking. It would deny these property owners all economically beneficial or productive use of the property, and such a denial of all uses is the equivalent of physical appropriation and requires payment of just compensation, no matter how significant the government interest may be supporting the regulation." Lucas v. South Carolina Coastal Council (1992) 112 S.Ct. 2886, 2893. The owners respectfully request that the Council not adapt the proposed ordinance and that it instead consult with all affected property owners and soil engineers to address the City's interest in protecting the hillside without denying owners in the HPR zone of all economic use af their property. Yours truly, � :� , ' ��i,� ,,,,��. .f�"G` � �1/,:� ' � � , PEGG � . O'LAUGH�LIN � , PMO/mr cc David and Edwina Nelson David Baron Bruce Kuydendall David J. Erwin, Best, Best & Krieger LLP, City Attorney f Lauri Aylaian, Director Community Development John M. Wholmuth, City Manager � , , �:f.li�,rl��'fol�ic,rs\p�1�1� desert�correspoiidenceAmayor&citycauncil 040t�2010.docx � �