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HomeMy WebLinkAboutCUP 103; Las Flores Church of the Nazarene; Conditional Use Permit (CUP) (18)~TE~"~~NWORLEYGARRA'IT~~H~ART~GAR~ELD &PRAIRIE A LIMITED LIABILITY PARTNERSHIP DANIEL A. FRIEDUNDER TIMOTHY K. GARFIELD LAUREL LEE HYDE WILLIAM J. SCHWARTZ, JR. GARY J . STEPHENSON DONALD R. WORLEY GREGORY C.M. GARRATT MICHAEL w. PRAIRIE VIA FEDERAL EXPRESS Scott Donnell, Associate Planner City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008-73 14 LAWYERS 401 "B" STREET, SUITE 2400 SAN DIEGO, CALIFORNIA 92101-4200 OF COUNSEL: ELAINE L. CHAN KENT H. FOSTER RALPH E. HUGHES February 14,2001 Re: Conditional Use Permit for Las Flores Church Dear Scott: TELEPHONE (619) 696-3500 FACSIMILE (619) 696-3555 E-MAIL SDLAW@SWGSGP.COM WRITER'S FXT. Thank you for meeting with us this morning. Enclosed is my Legal Memorandum with accompanying documentation to establish the continued legality of the existing Church Sanctuary. If the CUP is interpreted to require an amendment to build further phases, because the time limit for those phases described in the permit has long since passed, then we agree. However, we believe that any interpretation that the present Church Sanctuary, which was legal when built, is now illegal, because the future phases were not built on time, and that it is now subject to automatic abatement without further notice or hearing, is something that we cannot accept, and is not, we believe, supported by a reasonable interpretation of the CUP or its history. In any event, we do not think the Mayor believes the Church is illegal and subject to automatic abatement, nor do we think the rest of the Council members would follow such an interpretation, and they are the ultimate arbiters of what the CUP means. t- The Church is willing to apply for a new CUP or an amendment, as the case may be. We understand that the only difference is the cost. A new CUP would, of course, eliminate any issue of the continued validity of the existing Church structure, and it would be our preference to go that route, except for the additional expense. Perhaps, the STEPHENSON WORLEY GARRATT SCHWARTZ GARFIELD & PRAIRIE, LLP Scott Donnell, Associate Planner City of Carlsbad February 14,2001 Page 2 City will consider allowing the Church to proceed with a new CUP but with the fees applicable to an amendment. We hope the Church can continue with the process and satisfy the City’s requirements and concerns without having staff reports constantly claiming the illegality of the existing structure or Church use permit. The Church wants to do the right thing, but it wants to proceed through the process without this “cloud” hanging oirer its head. We look forward to your continuing courtesy and cooperation in the handling of this permit and thank you for your time and attention. / DRW:sc cc: Pastor Dwayne Edwards John G. Burlison Lew Dominy Encs. X:\WP\2001\LaS Flows Nazarene Church\City Planning ]@.doc LEGAL MEMORANDUM Las Flores church of the Nazarene CUP 103 February 7,2001 The City of Carlsbad has taken the position that the conditional use permit (“CUP”) for the Las Flores Church is “null and void” because phases beyond the first phase were never built and the permit expired, and that the existing church is “an illegal nonconforming use and subject to abatement.” This view is incorrect for several reasons. PERMIT HISTORY March 5, 1973 - Original application for conditional use permit (No. 8 1) March27, 1973 - Planning Department report to the Planning Commission describes the project as follows: “There is an existing house fronting on Highland Drive that will be used as the worship hall until completion of the new sanctuary. The contemplated attendance at a worship service during this interim period is estimated at 70 - 80 people. “The ultimate attendance is estimated at 250 people. When the sanctuary is completed, the existing house will be used as an office. The church activity will be concentrated on Sundays and Wednesday. No day school fbnctions are proposed.” The staff recommended approval with conditions, none of which refer to future phasing. March27,1973 - Planning Commission Resolution 884 approved the application for the CUP with conditions, none of which refer to any phasing. May 1,1973 - City Council Resolution 3123. The approval of the Planning Commission was appealed to the City Council, and the City Council denied the appeal and upheld the decision of the Planning Commission without modification to the conditions of approval. -1- April 1 1,1974 - The Church sent a letter to the Planning Department requesting an extension of time to exercise the CUP represented by Planning Commission Resolution 884 and City Council Resolution 3123. [Our files do not contain a copy of this letter.] April 23,1974 - Planning Department report to the Planning Commission on the Church’s request for an extension of time. The report describes the original approval as allowing the use of a 2,028 square foot residence as a worship structure for a one-year period. “The applicant now indicates that the structure remain in residence and not to be utilized as a sanctuary.” The staff recommended that the Planning Commission grant the applicant’s request and delete Condition 4 (“Existing dwelling shall be made to conform to fire code requirements and approved by the Fire Marshall prior to the change of occupancy”) and Condition 11 (“Use of the existing house as a worship structure shall be effective for one (1) year only”), and add a new condition as follows: “Unless the construction of the facility is commenced not later than April 23, 1975 and diligently pursued thereafter, the approval will automatically become null and void.” The proposed development is described as follows: “A sanctuary with a capacity of 390 persons, a parking lot for 66 automobiles, and an existing residence to be used as a parsonage.” [No record of action taken on request for extension.] December 2, 1974 - Application for a new CUP for a phased development program for the Church. January 14,1975 - Planning Commission Resolution No. 1125 approved the CUP for the phased development (CUP No. 103). For the first time a phasing plan with construction start dates appears as a condition (No. 14). Phase 1A was to start by January, 1976, Phase 1B by January, 1977, Phase 2 by January, 1978, Phase 3 by January, 1980. The phasing condition further states: “The Planning Director may grant a one year extension for each phase of development. If construction for a phase does not commence by the appointed date, this Conditional Use Permit will become null and void. [Emphasis added.]” February 1975 - City Council approved the permit. wo resolution of approval is in our file.] December 7, 1977 - Letter request of the Church to extend the time for construction of future phases, “[dlue to the increase in building costs and other problems, . . . .” It appears that by that time the building of Phase 1A was completed. February 27,1978 - Memo from Bud Plender, Assistant Planning Director, to Vincent Biondo, City Attorney, asking the Attorney’s opinion, but stating: “I could find no reason why such a condition was placed on the church in the first place, nor can I remember any citizen, Planning Commissioner, or City Councilman concerns. [Emphasis added.]” March 8, 1978 - Letter from Don L. Rose of the City to the Church stating, “the subject C.U.P. is now null and void. It will be necessary to obtain another C.U.P. before you can continue your project.” June 15,1983 - Letter from Adrienne Landers, Land Use Planning Office, to the Church stating that a new driveway had been paved in the Church parking lot. Apparently, the new driveway was not reflected in CUP 103 and Ms. Landers states that the options are to remove the driveway, amend CUP 103, or install a permanent fence parallel to Highland Drive across the driveway. No where in that letter does she mention that the existing use of the property is in question. To Declare the Church an Unlawfirl Use Subiect to Abatement is an Immoper Interpretation of the CUP Normally, construction must commence under a CUP or the CUP will expire. In a phased project, there may be a time limit for construction of future phases and the permit may expire as to those phases if they are not implemented. However, it is virtually unheard of to have an entire multi-phase permit declared null and void after the first phase is built, simply because further phases are not. Phasing, in general, is requested by -3- the applicant, and the City has no legitimate interest in seeing that the future phases are built. The City’s interest is that the permission to build not be perpetual, so that the City can maintain some control. Therefore, it is not at all unreasonable to have the permission to build the future phases dependent on meeting certain time limits for building them, but to have the entire permit declared void does not serve any legitimate City interest. This interpretation seems to be confirmed by a staff memorandum fkom Bud Plender, Assistant Planning Director, to Vincent Biondo, City Attorney dated February 27, 1978. In the memo, Mr. Plender states: “I could find no reason why such a condition was placed on the church in the first place, nor can I remember any citizen, Planning Commissioner, or City Councilman concerns. (Phasing was common practice in Carlsbad up to a couple of years ago.) [Emphasis added.]” To this, the City Attorney, in a handwritten note, replied: “I can - but so what.” In a further handwritten note, the City Attorney stated: “The condition speaks for itself. CUP is - void! If condition violated. Church has to reapply.” It seems that, based entirely on this rather glib and arbitrary response by the then City Attorney, the City then sent the Church a letter dated March 8, 1978, stating that “the subject C.U.P. is now null and void. It will be necessary to obtain another C.U.P. before you can continue your project. [Emphasis added.]” Significantly, that letter did not state that the first phase of development was null and void by expiration of the construction dates for the future phases or that the Church was subject to abatement for failure to build out all phases. Also, a letter some years later, dated June 15, 1983, referring to a discrepancy between the planned and the existing driveway, says a permit amendment may be required. Nowhere in that letter is any question raised as to the validity of the existing Church sanctuary. This further supports our view that the Church is not subject to abatement. The exact language of permit Condition No. 14 is as follows: “If construction for a phase does not commence by the appointed date, this Conditional Use Permit will become null and void.” The only reasonable interpretation of this language is that the permit, as an approval for future phases, becomes null and void as to those future phases, if each phase does not commence within the date set forth in the permit or within a one-year extension thereof granted by the Planning Director. The idea that the existing Church is now subject to abatement is an opinion never expressed before and is a completely unreasonable view of the effect of missing the hture phase construction dates. -4- Since the First Phase Was Legal When Built, at the Worst the First Phase is Now a Legal. Nonconforming Use But Permitted to Continue Because It is a Church There can be no question that the building was legal when built. It was permitted by the CUP and by the accompanying building permit, and upon completion, presumably the permit was signed off by all of the necessary officials so that legal occupancy could occur. It was then occupied as a legal building and a legal use. If the use became illegal by the expiration of the construction date mentioned in the permit for the next phase, that simply created a situation of a legal nonconforming use in a legally conforming building. Carlsbad Municipal Code section 21.48.050 states that a nonconforming use of a conforming building in a residential zone shall be discontinued three years from the date of formal notice from the Planning Commission, or no later than five years from the date this ordinance section becomes applicable to it. However, section 21.48.060 exempts churches from this removal requirement. If a church is a nonconforming use in a legally conforming building, it cannot be abated at all! If Not Exercised Within a Time Limit. There Still is No Automatic Nullitv of a Permit and No Automatic Abatement Sections 21.58.010 and 21.58.020 state that an approval of a CUP becomes null and void “if not exercised within the time period specified in the resolution” of approval. However, if “not being exercised . . .” within those time limits, the permit is subject to revocation by the Planning Commission. Also, as to nonconforming uses, only the Planning Commission can decide the terms of abatement (even though churches are exempt from abatement). Thus, it is clear that Carlsbad municipal law grants exclusive authority to the Planning commission in these matters concerning revocation of CUPS and enforcement of time limits. There is no authority for a permit becoming automatically null and void, and no authority for automatic abatement. Churches Enioy Special Treatment in the Permitting Process Bv Reason of the First Amendment of the United States Constitution Carlsbad Municipal Code section 2 1.42.020 states the facts required to be found in order to grant a conditional use permit. They are the usual findings required by most municipalities. However, subsection 5 states that where the subject is protected by the First Amendment to the United States Constitution, or Article I, section 2 of the California Constitution, “then only the definite objective guidelines and standards of this chapter and of any other chapter of this code applicable to the property shall apply. The general health, safety and welfare requirements of subsection (1) shall not apply. . . . Y9 -5- [i.e., requirements that the project is necessary and desirable, in harmony with the General Plan, and not detrimental to existing uses]. Of course, churches are specifically protected by the First Amendment to the United States Constitution. Thus, this section requires liberal treatment of applications for conditional use permit by churches. The same liberality should also be applied to the interpretation of existing CUPS, which is fUrther support for our view of the reasonable interpretation of the time limits within the originally granted CUP. -6- EXHIBIT LIST 1. Planning Commission Resolution 1125, dated January 14, 1975 2. Letter request of Church to extend the time for construction of fbture phases, dated December 7, 1977. 3. Memo from Bud Plender, Assistant Planning Director, to Vincent Biondo, City Attorney, dated February 27,1978. 4. Letter from Don L. Rose to Las Flores Church, dated March 8, 1978. 5. Letter from Adrienne Landers, Land Use Planning Office, to Las Flores Church, dated June 15, 1983.