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.