HomeMy WebLinkAboutCUP 103; Las Flores Church of the Nazarene; Conditional Use Permit (CUP) (19)~-
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MARCH 5,2001
TO: PLANNING DIRECTOR
FROM: City Attorney
VALIDITY OF CONDITIONAL USE PERMIT 103 FOR LAS FLORES CHURCH
OF THE NAZARENE
A review of the facts presented and the pertinent cases leads me to conclude
that the CUP for the Las Flores Church is valid as to the existing church sanctuary and is not subject to abatement. However, as to the phases of the
church for which construction was not commenced within the specified tie
frames, the CUP has automatically expired and, therefore, the Church must make a new application if it wishes to proceed with construction of these
additional phases. My reasoning is as follows:
The first phase of fhe church, the sanctuary, was built on time with a valid CUP.
Assuming no reason was given on the record for conditioning the time for
commencement of construction on additional phases, this condition was most
likely imposed for the reason stated in Communitv Development Commission of
Mendocino Countv v. Citv of Fort Braaq (1 988) 251 CaLRptr. 709.
"It is settled that the purpose of statutes or ordinances providing
for automatic expiration or revocation of use permits when work
has not commenced or a use established is to prevent the
reservation of land for future purposes when the permittee has
no good faith intent to presently commence upon the proposed
use."
Here, the church made good on its intent to build a sanctuary, but, apparently
ran into financial and other difficulties prior to commencing the additional phases.
While the City should not be obligated to resetve the proposed land uses
indefinitely, it would not be consistent with the purpose of the condition to
subsequently invalidate or void approval of an already existing sanctuary which was built with a valid CUP in a timely manner. Therefore, I agree with Mr.
Woriey that the only reasonable interpretation of the conditioning 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 by the date set forth in
the permit or any extension thereof granted by the Planning Director.
Secondly, where a CUP has been granted and the permittee has thereafter
acted upon the grant of a use to its detriment, the permittee has acquired a
vested right in the CUP. Malibu Mountains Recreation, Inc. v. Countv of Los
Anqeles (1998) 67 Cal.App.4" at p. 367. Clearly, as to the existing sanctuary,
the church has acted on reliance on the CUP including not only expenditures in
building the sanctuary, but also "in human terms" and "it has become important
to the church in a life situation." Malibu Mountains Recreation. Inc. v. Countv of
Los Anaeles , Id., at p. 369. The sanctuary has been used for the intended
purpose contemplated in the initial CUP granted in 1977 and should, therefore,
have the right to continue this established use. See Goat Hill Tavern v. Citv of
Costa Mesa (1992) 6 Cal.A~p.4~ 1519, where the Court concluded that the right
to continue an established business is sufficiently personal, vested and important
to preclude its extinction by a non-judicial body.
Finally, we must consider whether the City should be estopped from asserting
the nullity of the CUP since the Planning Department failed to raise the issue of
whether the CUP had become void in its letter regarding the driveway. In fact
that letter implied that the use was valid since the only pending issue was
whetherthe driveway construction complied with City regulations.
Equitable estoppel will not be invoked against a governmental agency except to
avoid a grave injustice. Citv of Long Beach v. Mansell (1970) 3 Cal.3d 462 at p.
1081. While voiding a CUP as to the existing sanctuary would most likely be
viewed as invoking a grave injustice upon the church, this is not true as to the
future phases which were not constructed within the time constraints conditioned
in the CUP, and have still not been constructed after twenty-four years have
elapsed. Here the discussion in Citv of Long Beach v. Mansell is on point.
“An estoppel will not be applied against the government if to do so
would effectively nullify a strong rule of policy, adopted for the
benefit of the public. The City has a pafamount interest in
regulating land use and preventing the reservation of land for
future use sufficient to outweigh any purported damage to an
individual permit holder.” Id. at p. 493.
In answer to the second question you posed, whether the holding in Community
DeveloDment Commission of Mendocino County v. Citv of Fort Bracrq has any
bearing on whether the permit is valid, the answer is yes. However, in that case,
the Court sought to prevent a harsh result by liberally construing the Municipal
Code provision and parallel CUP condition and concluding that “substantial
evidence of uses in progress” did not necessarily require onsite construction.
The Court based its determination that a good faith intent to commence upon the
use existed on the fact that CDC’s development project in that case involved
complex governmental and financial commitments which CDC had made every
effort to obtain. Moreover, the Court noted that CDC’s failure to pay the building
permit fees which are required by HUD’s review process to be paid by the
contractor, could not be paid since the successful bidder on the construction
project had not been determined at the time CDC submitted its plans to the Fort
Bragg building inspector for review.
The Court in Community DeveloDment Commission of Mendocino v. Citv of Fort
Braaq did not consider CDC‘s constitutional arguments that the Municipal Code
section in question was unconstitutionally vague, or that the expiration provision
deprived the permittee of procedural due process and that the City Council’s
decision of invalidity constituted a violation of equal protection.
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"As we have decided the instant appeal on the basis of the
validity of the original use permit, we need not consider CDC's
constitutional arguments that Municipal Code section 18.76.100 is
unconstitutionally vague; that the expiration provision deprives a
permittee of procedural due process; and that the City Council's
decision of invalidity constituted a violation of equal protection."
(Id. at fn. 4).
Therefore, the ruling in that case does not preclude a CUP condition providing for automatic expiration of a use permit when work has not commenced.
Moreover, in the situation with Las Flores Church, we are not really concerned
with the issue of what constitutes construction, since the sanctuary was
completed on time and the subsequent phases were never begun after a time
lapse of 24 years. The precept of the ruling, Le., that a condition concerned
only with the extent of construction is unreasonable where a complex and
expensive project is involved, would not extend to the subsequent phases in the
case of the Las Flores Church.
Moreover, I do not believe that the holding in Communitv Development
Commission v. City of Fort Braqg, necessitates an amendment of the Carlsbad
Municipal Code Zoning Ordinance sections 21 58.020 and/or 21.58.010. There
is a distinction between automatic expiration of a permit and conclusion of a
permit life due to inactivity, and revocation of a permit for failure to comply with
the conditions of approval. Carlsbad Municipal Code section 21.58.010 currently
requires that a public hearing be held to revoke or modify any permit or variance.
This provision is distinguishable from Carlsbad Municipal Code section
21.58.020, which provides that a Conditional Use Permit or Variance
automatically becomes null and void if not exercised within the time period
specified in the resolution, or if no time period is specified within 18 months of
the date of approval.
This distinction is supported by the analysis in the case of Rail-Cvcle. LP v. City
Council for the Citv of Commerce (1999) WL 33221 11 1 (Cal.App.2 Dist.)). In
that case, the Appellant contended that it had a vested right in a CUP, which
precluded its revocation by the city absent a breach of an express condition or a
finding of public nuisance, neither of which was present. Condition No. 55
provided:
"This permit and all rights hereunder shall terminate within twelve
months of the effective date of the permit unless construction has
commenced or written extension is granted, based on a written
request submitted prior to the expiration of the one-year period as
provided in Section 19.04.062 of the Commerce Municipal Code.
Such extension shall not be unreasonably withheld."
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Condition 56 of the CUP provided:
"The abandonment or non-use of this permit for a period of six
consecutive months shall terminate the Conditional Use Permit
and any privileges granted thereunder shall become null and
void. However, an extension of time may be granted as provided
in Section 19.04.062 of the Commerce Municipal Code."
Finally, Condition 14 provided:
"If any condition hereof is violated the permit may be revoked,
provided the permittee has been given written notice to cease or
cure such violation, and has failed to do so for a period of thirty
(30) days or other longer time frame requested by permittee and
approved by the Department of Community Development. Such
approval shall not be unreasonably withheld."
Conditions 55 and 56 provided for automatic termination of the CUP if they were
violated. The Appellate Court noted that automatic termination was inconsistent
with the discretionary power to revoke provided in Condition 14. "If the CUP is
automatically terminated, there is nothing to revoke."
Likewiseythe remcatbrprovided forin€% me#km2k58.W is inconsistent
with the automatic expiration discussed in CMC section 21.58.020, because if
the CUP is automatically terminated there is nothing to revoke. Moreover, the
Court in the Citv of Commerce case held that despite the reference in Condition
14 to a violation of "any condition" of the CUP, it was not clear that all conditions
in the CUP were subject to Condition 14.
The language in CMC section 21.58.010(4) provides for revocation on the
grounds "that the permit or variance granted is being, or has recently been
exercised as contrary to the terms or conditions of such approval or in violation
of any statute, ordinance, law or regulation", but those conditions are not
necessarily subject to the timing condition pertaining to CMC Q 21.58.020. The
timing condition is one which must be met to establish the use and only after it is
met does the use become subject to conditions of the final operating permit
issued by the City.
As the Appellate Court in Rail-Cycle v. Citv Council for the Citv of Commerce,
SuDra, stated:
"Based on the foregoing, it is clear that Respondents did not
intend when issuing the CUP that Condition 14 apply to Conditions
55 and 56. They intended that breach of those conditions
automatically terminate the CUP rather than render the CUP
subject to their revocation. Therefore, the trial court did not err in
finding appellant was not entitled to cure its breach of Condition
55, pursuant to Condition 14."
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In light of this ruling in the Citv of Commerce, I conclude that it is not necessary
to amend the Municipal Code to require a hearing and finding of just cause
before a permit automatically expires due to inactivity. There is a mechanism for
addressing and rectifying any injustice created by an automatic nullity in
situations such as Citv of Fort Braaq, where the meaning of “commencement of
construction” is an issue and a permittee has made a good faith effort to
commence upon its proposed use, particularly where the project and project
financing is complex. If the Planning Director makes a determination that the
automatic expiration4provision of the CUP has taken effect, then the permittee
would have the right to appeal such decision to the Planning Commission
pursuant to the general appeal provision found in Municipal Code section
21.54.140. In the City of Commerce case, the Appellate Court ultimately found
that although the permittee had breached Condition 55, justifying termination of
the CUP, it also established a basis for estopping the City from such termination
since the permittee had acted in reliance upon a legal opinion of the City
Attorney, stating that there was still time in which to commence construction or
request an extension, and the permittee then continued to expend time and
money on the development project.
se and Institutionalized Persons
Act of 2000 (“RLUIPA”), which prohibits Federal, State and Local governments
from imposing or implementing any land use regulation that places a “substantial --nK on relgiottsae#ivity;hmsmmh ’ M-Tepfettail on such a claim,
the government must show that the imposition of the burden is in furtherance of
a compelling governmental interest and is the least restrictive means for
furthering that interest. As yet, it is unclear whether or not the Act will require
that churches be allowed to locate by right rather than submitting to a
requirement for a Conditional Use Permit. The courts are just beginning the
process of interpreting this law, and Mr. Worley has not directly raised this issue
in his letter although he does allude to the fact that churches are specifically
protected by the First Amendment. For now, the City should not concede its
authority to require a Conditional Use permit for the location of. churches, but if a
RLUIPA challenge arises, the City should do everything possible to reasonably
accommodate the inherent special needs of religious institutions.
4th~~ MOBALDI
Assistant City Attomey
afs
c: Associate Planner Scott Donnell
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