HomeMy WebLinkAboutCUP 103; Las Flores Church of the Nazarene; Conditional Use Permit (CUP) (3)CITY
REQUEST
OF CARLSBAD
FOR LEGAL ADVICE
TO : CITY ATTORNEY Date Sent: February 22, 2001
FROM: PLANNING DIRECTOR Date Needed: March 8, 2001
Department: PLANNING
SUBJECT:
1. Validity of Conditional Use Permit CUP 103 for Las Flores Church of the Nazarene 2. Applicability of Community Dev. Comm'n v. City of Ft. Bragg, 204 Cal.App.3d 1124 (1988) to expiration of CUP'S and development permits in general.
ADVICE REQUESTED:
1. Is CUP 103 for Las Flores Church valid? Does case 204 Cal.App.3d 1124 have any bearing on whether the permit is valid?
2. Based on case 204 Cal.App.3d 1124 (1988), do we need to modify Zoning Ordinance Section 21.58.020 (and/or 21.58.01 0) and our standard conditions of approval to require a hearing and finding of just cause before a permit automatically expires due to inactivity or conclusion of its permit life?
BACKGROUND INFORMATION: Prepare synopsis of facts, giving as many as possible.
Attach additional sheets if necessary, or copies of supporting documents.
In 1975, the City approved CUP 103 to allow construction of the Las Flores Church of the Nazarene (the "Church"). The approving Planning Commission Resolution, No. 11 25 (upheld on appeal by City Council Resolution No. 3605), contained the following condition:
14) The project shall be phased as follows:
Phase Construction Start Phase IA January 1976 Phase IB January 1977 Phase II January 1978 Phase Ill January 1980
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.
Only Phase IA, the sanctuary, began construction by the required start date; it was also the only phase completed and appears to be the only phase commenced. On December 7, 1977, the Church submitted a letter requesting an extension of the time limits. On a February 1978 memo from the Assistant Planning Director to the City Attorney regarding
the extension request, the City Attorney noted an extension is not possible and the CUP is void because of the lack of compliance with condition 14. A March 1978 letter from the
city to the Church als, states the permit is void because -the extension request was not exercised within the allotted time.
In 1983, planning staff sent a letter to the Church regarding an unpermitted driveway on
Church property implies the CUP is still valid and suggests it could be amended to allow the driveway to remain. CUP103 does not have a condition establishing a renewable permit life as we do today. The CUP103 contains no correspondence subsequent to the
1983 letter. Staff is unaware of any additional correspondence or permit activity by the Church.
In December 2000, the City wrote a letter with comments on the Church‘s preliminary review application to expand its facilities. Reinforced by the March 1978 letter mentioned earlier, the letter included a comment that CUP 103 was null and void because of the failure to comply with condition 14 above. It also noted the Church was subject to
abatement and that a new, not amended, CUP was needed to permit the existing church and any proposed expansion.
On February 14, 2001 , Church representatives met with the Mayor and staff to primarily discuss their concerns about staff’s claim that the CUP was null and void. The Mavor requested staff consult with the City Attorney on this matter. One of the representatives in attendance, lawyer Donald Worley, sent staff a legal memorandum with accompanying documentation regarding the legality of the Church.
Subsequent to the meeting with Church and Mayor, planning staff found reference to Community Dev. Comm’n v. City of Ft. Bragg, 204 Cal.App.3d 1124 (1988). This case seems relevant to determining the status of the Church’s CUP. It appears to (1) affirm a CUP cannot automatically expire without a hearing first being held to determine if there is justification for the expiration and (2) validate the Church’s CUP, based on their development and use of the sanctuary and subject property as a church. It also seems this case could apply to development permits in general, not just CUPS.
Please note our current, standard conditions of approval automatically expire development permits if, for example, building permits are not obtained or a CFD annexation does not occur within a specified time period. Additionally, conditional use permits have finite lives
that automatically expire unless renewed. While Zoning Ordinance Section 21.58.010 establishes a hearing requirement and findings for revoking a permit, it is unclear if these
procedures must be followed before a permit can be declared expired.
Copies Attached
1. February 14, 2001, letter from Donald R. Worley, attorney for the Church, containing a Legal Memorandum discussing Church permit history and reasons why the Church CUP is still valid. The letter also contains the following attachments:
a. Planning Commission Resolution No. 1 125 b. Church extension request letter of December 7, 1977 c. February 27, 1978 city memo regarding the extension request d. March 8, 1978, letter from City to the Church on the extension request
e. June 15, 1983 letter from City to Church on unpermitted driveway;
2. Zoning Ordinance Section 21.58 on permit revocation and expiration;
3. 204 Cal.App.3d 1124 (1988).
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Prepared By: Scott Donnell
Approved By:
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Department Head
Request Noted:
City Manager
THIS SIDE FOR CITY AllORNEY’S OFFICE USE
Prepared By: Date:
Written: Memorandum Opinion
Oral:
Brief Resume of Advice Rendered: If written, attach copy or make reference.
Advice Noted:
City Manager
1
STEPHEN~ONWORLEYGARRA~SCHWAR'IZGARRELD &PRAIRIE
ALIMITEDUBILlTYPARWERSHIP
LAWYERS TELEPHONE DANIEL A. FFSDLANDER 401 'B" STREET. SUITE 2400 TIMOTHY K. GARFIELD
GREGORY C.M. GARRATT SAN DIEGO, CALIFORNIA 921014200 FACSIMILL LAUREL LEE HYDE (619) 696-3555
MICHAEL W. PRAIRIE WILLIAM J. SCHWARTZ. JR. LUNE L. CWAN E-MNL GARY J . STEPHENSON KENT H. FOSTER SDLAW@SWGSGP.COM
DONALD R. Wow ~LPH E. HUGHES
wm's m.
(619) 696-3500
OF COUNSEL:
February 14,2001
VIA FEDERAL EXPRESS
Scott Donnell, Associate Planner
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008-73 14
Re: Conditional Use Permit for Las Flores Church
Dear Scott:
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.
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 satis@ 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 over 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:\WPUOOI\Las Flores Nazame ChurchKity Planning 1tr.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
(“CUPyy) 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)
March 27, 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 functions are
proposed.”
The staff recommended approval with conditions, none of
which refer to future phasing.
March 27,1973 - 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 3 123. 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.
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April 11,1974 - 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 3 123. [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.”
mo 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:
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“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. Po 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 Unlawfbl 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
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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 from 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 future phase construction dates.
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.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 2 1.48.050 states that a nonconforming use of a
conforming building in a residential zone shall be discontinued three years from the date
of formal notice fiom 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 Nullity 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 SDecial Treatment in the Permitting Process
BY Reason of the First Amendment of the United States Constitution
Carlsbad Municipal Code section 21.42.020 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. . . .”
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[Le., 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.
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EXHIBIT LIST
1. Planning Commission Resolution 1 125, dated January 14, 1975
2. Letter request of Church to extend the time for construction of future 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.
Sent by: -. .. John G..Burllson
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NO. 184 F. 12/16
PLAi'lNIIiG COMHISSION RESOLUTION ii0. 11 25
RESOLUTION OF THE PLA?ltlING COMM1SSIQi.I OF TCE: CITY
USE PERPIIT TO ALLOW COPlSTZUCTIOiI OF A CHUACH AND OF CARLSBAU, CALIFORNIA, COMCERffIt4G TljE C0?~3ITIGNilL
RELATED FACILITIES OPI PROPERTY LOCATED Ai 2673 HIGHLAND DRIVE. CASE i40: CUP 103 APPLICA'NT; LARRY ROHLOFF (Nararene Church)
WHEREAS, a veriflied application for'a certaln property, to
wit:
A portion of tract 5, Laguna Mesa Tracts, according to' Map 1719 filed with. the San D'iego County Recorder, in the City of Carlsbad, County of San, Diego, State of . Ca74fornia;
has been filed with the City of Carlsbad and referred to the
Planntng Commission;' and
WHEREAS, said verified application const'itutes a request
.as provided by Tit'le 21 of the .a ''Caylsbad M'unicipal Code''' and
IQHEREAS, the pub1 Tc hearing 'was he1 d a't thg trme and Sn thr
place specified fn .said notice on January 14, 1975; a"nd
WHEREAS, the applfcant'has complied with the Pub'lic Facili.
Policy of the CSty of Carlsbad and has provlded the nec'essary
information whfch insures-Public Facil'ities will be available al
current with need; and
e.
IdHEREAS, at said public hearing, upon hearing and consider
the testimony and arguments, if any, of all persons who desired
to be heard, said Commission c0nsidere.d all factors relating to
th2 Conditional Use Permit and found the following facts.
and. reasons to exist:
1) ' The use is necessary,and. desirable for the developmen of the community, is in harmony with the General Plan and is not detrimental to uses in the R-1 Zone becaus
a) The General Plan' and Zonfng a1 70w churches in .. th
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2) The site .for the rntended use. is adequate in size 2nd shape tg accommOdate the use because: -
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l a) The ?at size far the church is 1.84 acres. This
~ . presently in Carlsbad;
is larger than all except one church existing
b) The ‘lot is regularly shaped and can easily accommodate ‘the proposed use.
3) All of the yards, setbacks, walls, fences, landscapin:
i and other features necessary to adjust the use to
exjsting or permitted future uses l’n the neighborhood
I wi17 be provSded and maintained as follows:
1 a] The. project ~$71 be required to meet all setback:
~ along all property boundar’l’es wh4ch abut dwel’lin!
of. the 8-1 Zqne;.
b) A view obscuring fence or hedge .is being requi’ref
un i .ts ;
c) A landscape plan which will buffer the Use. from the surroundlng neighborhood is being required.
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4) The street system serving the propssed use ’is adequatr ta handle all traffic generated by the use because:
a) The site 4s‘ located at the lntersection of two
‘b) The sit,@ has excellent qccesS ta 1-5.
.I res5dentlal collector streets. . :< .
A) That the above recitations are true and correct.
6) That a Conditional Use Permit is ‘approved to a1 low construction of a Church and related facilities on ’ 8 property located at 2675 Highland Drive, and is subject to the following conditions:
1) ‘The approval Js granted for the land described in the application and-any’ attachments thereto, and as shown on the plot plan subrnftted labeled Exhibit A, dated 12-2-74, The location a.f all buildings, fencer;, signs, roadways, parking areas, landscaplng, .and other facl’lities or features shall be located substantiglly as show on the plot plan labeled Exh’ibjt A, except or unless indicated otherwise herein. All buildin:
’ - and structures shall be of the design, as shown.
6- ~lova+.inn alans labeTed Exhlblt 5, dated
John G. Burlison Sent by:
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3) No signs or advertising of any .type whatsoever shall ba erected or installed until plans there- fore have been approved by the City of Carlsbad.
- e')! All areas shown as parking areas shall be surfac
4 ,' with asphaltic concrete and shall be visibly . marked outlining individual par-king speces and ~o~~~:'"'"traffic flow.' Said surfacing and marking shCl1
++- be completed prior to final inspection of the structure or structures by the Building Departme The surface shal.1 be kept in a reasonably gQod state of repair at all times. ,
5) All lighting shall be arranged to reflect away frotq adjoining properties and streets.
All outside storage' areas shall be screened fron
,/ adjacent property and streets. /. -. trash enclosure shall be proujd acceptable to the Plannin and said area shall be enclosed with a
shield the ar2a. Said fence and/or include a solid gate.
wall of sufficient height to
A detailed landscape and sprinkler plan prepared by-a landscape architect, shall be submitted to the Parks and Recreat'ion Dt'rector for considerat and approval. Said fqndscape plan shall shaw effective screening af the use from adjacent properties. Landscaping shall cover .411 open- shown on the plot plan, except those used for wz ways
All utilities Cncludlng electrical telephone ar cable television, shall be 3.nstal.led undergrounc and/or shall be completgly concealed from view.
All public improvements shall be made in con- formlty with the Subdivision Ordinance and other City Standards, to the satisfaction of the City Engineer without cost to the City of Carl sbad an free of a17 liens and encumbrances.
PrSor to any' construction, the applicant shall ,submit plans to the appropriate entity providinc domestic, water to the proposed development, for its approval of the .location, type and adequacy of water lines, and to this ,Fire Department for approval of the location of fire hydrants.
ueet trees, as required by the' City, shall be installed by the applicant at his expense. TreE shall be of R type approved by the Parks DeFf- ment and shall .be installed to their speeiftcati
1F wnmntt*l nf anv ovicfinn .f.rnes js reauired bv
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(12) 13) The applicant Shall install all required ,fire hydrants and dry-stand pipes prior to framing constructian, and said fire' appurtenances shall be functional pr'l'or to commencing such work.
Phase IA January 1976
Phase IB January 1977 Phase I1 January 1978 Phase TI1 January 1980
'rTti'e-:::P.l . ..., .... :. .,.. , .. anning ~ .._..*. . Di *. +ec . ... _.-. . .gr,ant ..a- one., year
. T;extensqon-.r'fa.r .i .,.~ag5v'r,u;c,ti.'Qn ;+A fplr -eac.h .,$ f-dciiiel oe'&-.:.n.o't dprne'nt:..:?:,: :- I. 1 f
.,,T"ii'ppQ~i.nt;ed~:~~ate.~;~~th <-;. .. . .,,., *$ th I I
?:"re.c6-*fi-e %. . , . . . . . . - ..... n.u,.j I-. ', I a n. . ..
15) The 1's shown on Exhibit A.shall be provlded Eent with the first phase of the development.
way to provide for a 30' half, street yectl'on on Highland Drr've, and shall, enter into a future agreement with -the City to construct. complete
16) The applicant shall dedicate additl'onal right of
1 half-street improvements'alang Highland Drive.
17) Applicant shall conslruc't the following improve- ments: .
a). Curb, gutter and sidewalk along Las Flores Drive per City of Carlsbad Drawing No. 133-
b) Cieanaut at en.d of sewer stub In northerly ext.en.s ion of Morning G1 ory I Lane.
e) One fire hydrant at end '0.f water line in ' northerly extensf on of Morn1 ng , G1 ory Lane,
* and one on-site fire hydrant, centrally, located. The on-slte hydrant shall be serv from a public water 1lne.extension from Highland Drive, having an alignmen't and
I capacS ty .approved by the Fire Department an City Engjneering Department. These shall b 'I'nstalled prior to build$ng.construction.
Las Flores, per City Standards. d) One 7000 Lumen .ornamental street lights on
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I NO. 184 F. 16/16
PASSED, APPROVED AN0 ADOPTED at a regular meeting of t.he
City of Carlsbad Planning Ca'rnmission .held anSJanuary 14, 1975,
by the follawing vote, to wit:
AYES:
NOES:
AMENT:
ATTEST:
N.o n e
Coamissfoners klrehch and Dominguez
c- 7
m:ID /
THE CHRIST WE DO NOT SHARE M DO NOT KEEP
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sent ny: John c.1. uuwson /bU /UU-b4bU 1/1 7/2UU1 11:45 AM
' ... JQN.lQ.2001 10:32QI'?- "WMINY + FISSOCIFITES i=" 17 nf 17
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1200 Em AVENUE
CARLSBAO, CALIFORNIA 92008 .
.. - .- -. . .
NO. 184 F. lI,.'lG
March 8, 1978
Church of the Natarene 2675 North Hi qhland Drive Carlsbad, CA 92008
Re: C.U,P. 103
Gent1 emen :
TELEPHONE: (7141 729-1181
We have reviewed subject conditional use permit (C.U.P.); and, we have a150 consulted with the Ci.ty Attorney regardl'ng your request for an extension of time Co comply with condition No. 14 of the subject C.U.P.
Condl'tion No. 14 allows for'an extention of tlme to be granted by the . Planning D9 rector, Howe.ver, since you did not exercise thJ s option within the alloted time,~~eIsubSeet:C..U.P. .is now null and void. rt will be necessary to obtain;-another C;IJ.P.".before you can continue your projec4. J have attached an application for your convenience.
Ver truly yours , *fiML% ion I. Rose
DLR: 1 e
Enclosure
DEVELOPMENTAL SERVICES
LAND US€ PLANNING OFFICE
- t”.
h
.1
c. 1200 ELM AVENUE
CARLSBAD, CALIFORNIA 92008-1989
(619) 438-5591
d
. June 15, 1983
Church. of the Na.zarene
2675 North Highland Drive
Carisbad, CA 92008
Gentlemen: ’.
It recently came to the attention of. our office that a new
driveway has been paved in the church parking. lot at the above location, In checking this out, I field checked the parking. lot
and reviewed Conditional Use Permit 703 which covers your property.
Apparently at the time this pemi.t was approved, there was concern regarding the location of driveways. To mitigate this problem, the temporary driveway that was existing in front o€
the church sanctuary was to be’ removed during Phase 111.--- This
is shown on. Exhibit A, dated December 2, 197’4 and has now been connected to the new driveway which has been paved.
To resolve this problem, three options are .possible. These are:
1. Remove the new driveway and parking area.
2. Amend Conditional Use Permit 103. This would require a public ‘hearing and approval by the
Planning Commission.
3. ‘Install alpemanent fence paral1e.l to Highland,’.
Drive across the driveway.
It appears that option number. 3 would be the -best. and easiest
solution. This problern needs to be resolved as quickly as
possible. I would appreciate your prompt response in advising
me of your intentions. Please call ‘me at 438-5591 if I may
assist you in any manner.
Sincerely,
Adrienne Landers
Land Use Planning Office ..
AML : cs
21.58.010
Chapter 21 58
REVOCATION - EXPIRATION
Sections:
21.58.010 Revocation of permits or
variance.
21.58.020 Expiration period.
21.58.010 Revocation of permits or variance.
The planning commission may, after a public
hearing held in the manner prescribed in Chapter
21.50 governing variances and conditional use
permits. revoke or modify any permit or vari-
ance issued on any one or more of the following
grounds:
( I) That the approval was obtained by fraud;
(2) That the use for which such approval is
granted is not being exercised:
(3) That the use for which such approval was
granted has ceased to exist or has been suspended
for one year or more:
(4) That the permit or variance granted is
being, or recently has been. exercised contrary to
the terms or conditions of such approval. or in
violation ofany statute. ordinance. law or regula-
tion:
(5) That the use for which the approval was
granted was so exercised as to be detrimental to
the pubiic health or safety. or so as to constitute a
nuisance. (Ord. 9060 6 2200)
2158.020 Expiration period.
Any conditional use permit or variance or
other development permit or approval granted
by the planning commission or the city council
.whichever is the final decisionmaking body
becomes null and void if not exercised within the
time period specified in the resolution granting
the application or, if no time period is specified.
within eighteen months of the date of approval.
(b) Unless an earlier expiration date appears
on the face of the permit any development per-
mit which is issued in conjunction with tentative
subdivision map for a planned unit development
as defined by Section 1 1003 of the State Business
and Professions Code shall expire no sooner than
the approved tentative map or any extension
thereof whichever occurs later. Local coastal
development permits issued in conjunction with
a tentative subdivision map for a planned unit
development shall expire no sooner than the
approved tentative map and shall be in accord-
ance with the applicable local coastal program
which is in effect at the time ofthe application for
extension. (Ord. 9760 S 18. 1985: Ord. 9423 $2.
1975: Ord. 9337 5 1. 1973: Ord. 9060 9 2201)
"
767
251 CaLRptr. 709
View National Reporter System version
COMMUNITY DEVELOPMENT COMMISSION OF MENDOCINO COUNTY,
Plaintiff and Appellant,
CITY OF FORT BRAGG, Defendant and Respondent
No. A037754.
Court of Appeal, First District, Division 3, California.
Sep 29, 1988.
SUMMARY
In an action by a public housing agency for a writ of mandate directing a city to
reinstate a conditional use permit which it found to have expired, or to set aside
its finding that the permit had expired, the trial court denied the writ, and denied
declaratory relief to the effect that the ordinance was unconstitutional. (Superior
Court of Mendocino County, No. 49935, Arthur B. Broaddus, Judge.)
The Court of Appeal reversed with directions, holding that the trial court
erroneously construed a municipal code section as intending to cause the
automatic expiration of use permits when the permittee has neither actually used
the land for the purpose stated in the permit nor substantially begun construction
work necessary for the use. The court held that the purpose of
V.
statutes or ordinances providing for automatic expiration or revocation of use
permits when work is not commenced or 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. Thus, although the
permittee had not commenced construction, the record clearly demonstrated that
the permittee was proceeding with a good faith intent to commence work upon
the proposed use. The court therefore held that the permit was properly issued
and had not expired. Nor could the trial court's ruling be upheld as an attempted
revocation of the permit, since the permittee was not afforded notice of the city
council's intention to consider revocation of the permit. (Opinion by Merrill, J.,
with White, P. J., and Barry-Deal, J., concurring.) *1125
HEADNOTES
Classified to California Digest of Official Reports
(1) Zoning and Planning 5 28-Conditional Uses; Permits and Certificates--
Expiration--Failure to Commence Work.
The purpose of statutes or ordinances providing for automatic expiration or
revocation of conditional use permits when work is 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 work upon the
proposed
use. Thus, where a permittee was proceeding with a good faith intent to
commence work upon the proposed use, as evidenced by the permittee's
obtaining of financing, purchase of property, hiring of architects and engineers,
performing borings for soil analysis, arranging demolitions, and submission of
plans for plan check review, the trial court in mandamus proceedings
erroneously concluded that the permittee had failed to show a good faith intent to
proceed in the absence of actual on-site construction.
[See Cal.Jur.3d, Zoning and Other Land Controls, 5 130; Am.Jur.2d, Zoning and
Planning, 9 281 .]
(2) Zoning and Planning 5 28-Conditional Uses--Permits and Certificates--
Nullification.
In an action for a writ of mandate to reinstate a conditional use permit, the trial
court erred in upholding a city council's determination that a conditional use
permit had been improperly issued, where the city council's determination was
based on the permittee's failure to demonstrate use of the permit, the
insufficiency of the permittee's declarations to mitigate environmental impacts,
and inadequate notice to neighboring property owners, but where evidence of
use of the permit did exist, citation to the project's environmental impact was
superfluous, and the city council incorrectly based its finding regarding notice on
whether all neighboring property owners actually received notice.
(3) Zoning and Planning 9 28-Conditional Uses; Permits and Certificates--
Revocation--Limitation of Municipality's Power.
A conditional use permit may not be revoked arbitrarily without cause, and
notice and hearing must be afforded a permittee prior to revocation of a use
permit. Thus, where a permittee was not afforded notice of a city council's
intention to consider revocation of its use permit, but was notified only that the
hearing would concern the expiration of the permit, any attempted
revocation was a nullity. *1126
COUNSEL
William Bernstein and Mulholland, Bernstein & Peterson for Plaintiff and
Appellant.
John L. Cook for Defendant and Respondent.
MERRILL, J.
Community Development Commission of Mendocino County (CDC) appeals
from a judgment denying issuance of a peremptory writ of mandate directing the
City of Fort Bragg (Fort Bragg) to reinstate a conditional use permit which it
found to have expired or to set aside its finding that the permit had expired. The
judgment also denied declaratory relief to the effect that a City of Fort Bragg
Municipal Ordinance is unconstitutional.
At issue in this appeal is the interpretation of Fort Bragg's Municipal Code
section 18.76.1 00 which provides for the expiration of conditional use permits in
one year of the date of issuance "unless substantial evidence of use is in
progress." We hold the trial court erroneously interpreted this statute as requiring
actual on-site construction. Accordingly, we reverse the judgment.
I
On October 26, 1982, CDC, a public housing agency, and Fort Bragg entered
into an agreement requiring both parties to cooperate in the development of
affordable housing; CDC agreed to obtain federal funding for the project and Fort
Bragg agreed to facilitate construction by granting variances where reasonable
and necessary. Thereafter, CDC transferred a preexisting Department of
Housing and Urban Development (HUD) 30-unit housing commitment from
unincorporated Mendocino County to Fort Bragg. HUD approved of the
development of 30 units of affordable housing on 2 sites located by CDC; 19
units at 531 Cypress and 11 units at 558 South Sanderson Way. In this appeal
we are concerned only with the South Sanderson Way development.
CDC applied for a use permit as to the Sanderson site only. It did not apply for a
use permit as to the Cypress site as it had been informed by the *1127
Fort Bragg planning director that a 1980 use permit for the construction of 19
units of low-cost housing was still valid.
Following notice and a public hearing, on April 26, 1983, the zoning
administrator for Fort Bragg approved CDC's proposed 1 1 -unit project at the
Sanderson site, subject to numerous conditions such as water pressure,
sewage, and drainage. CDC thereafter purchased the Sanderson property at a
cost of $95,000, obtained HUD approvals for engineering and architectural
studies, expended $85,000 on architects, civil engineers, soils engineers, a
survey and a topographical map.
On July 3, 1984, Fort Bragg's building inspector, James Fite, informed CDC by
letter of the amount of fees required for CDC's building permits on both the
Cypress and Sanderson sites. In this letter, Fite also advised CDC that a
planning department official discovered that the "use permit for Sanderson Way
had expired as of April 26, 1984."
Although CDC did not request an extension of USP 9-83, the zoning
administrator, following public hearing, granted a one-year extension of the
permit on July 24, 1984. When a neighbor appealed this determination, the Fort
Bragg City Council conducted its own extension hearing on August 27, 1984,
and reversed the previously granted extension. CDC's position throughout these
proceedings was that an extension was unnecessary as the original USP 9-83
had not expired. At the hearing CDC requested a determination of the validity of
the original permit notwithstanding the city council's decision concerning the
appeal.
Thereafter, on October 22, 1984, the city council conducted a he,aring to
determine the validity of USP 9-83. Citing CDC's expenditure of funds, hiring of
numerous engineers and architects, removal of fixtures in preparation for
construction, continued processing of the project with HUD and submittal of
plans to the building department to obtain a permit, the city attorney presented
his recommendation that the city council find the permit had not expired based
on evidence of CDC's substantial use of the permit. Further, the
city attorney informed the city council that because of the particular requirements
of the HUD approval process, CDC could not expend funds for the building
permit fees until the construction contract was awarded to a contractor. Upon the
payment of these fees and a valid use permit, the building inspector would issue
the necessary building permits. At the hearing, future neighbors of the
Sanderson project expressed their objections to it on the basis that they had not
received notice of the initial April 1983 hearing at which USP 9-83 was granted
and that it would introduce a blight to the community. The city council found that
was no longer valid as CDC had not demonstrated substantial evidence of use of
the permit before the expiration date. In addition, the city council found that the
conditions upon which USP 9-83 was approved did not sufficiently mitigate the
project's environmental impact on traffic, drainage and water in the area. Finally,
the city council found residents did not receive adequate notice of the April 26,
1983, zoning administrator's hearing.
At a December 17, 1984, public hearing to reconsider its decisions of August
27, 1984, and October 22, 1984, the city council reaffirmed its decisions.
On November 20, 1984, CDC and Rhonda Hornbeck, [FNl] a Fort Bragg
resident eligible for occupancy in low-cost housing financed by HUD, filed a
petition for writ of mandate seeking administrative mandamus (Code Civ. Proc.,
USP 9-83 *1128
w21
5 1094.5) and traditional mandamus (§ 1085) relief concerning the city council's
determination that CDC should not be granted an extension of USP 9-83 and
that the initial permit is invalid. [FN3] On April 25, 1985, CDC and Hornbeck
amended their petition to include causes of action for injunctive relief, estoppel,
declaratory relief as to the validity and enforceability of Municipal Code section
18.76.1 00 on its face and as applied, and for mandamus relief concerning the
issuance of the building permit. Trial as to the administrative mandamus petition
was held on January 4, 1985; trial on the remaining issues was held on July 15,
1986.
FN1 In its statement of decision, the trial court dismissed the case as to Rhonda
Hornbeck.
FN2 All further statutory reference is to the Code of Civil Procedure unless
otherwise noted.
FN3 In addition to Fort Bragg, the petition also named Leo G. Meskis, Andre
Schade and Matthew V. Huber, members of the city council, as respondents. By
pretrial order, the petition against these individuals was dismissed.
The judgment denied CDC mandamus and injunctive relief and in the
declaratory relief action determined that Municipal Code section 18.76.1 00 is
valid and constitutional. In its statement of decision the trial court found that Fort
Bragg had not abused its discretion in finding USP 9-83 was invalid or by
reversing the zoning administrator's extension of the permit. In connection with
the permit's validity, the trial court found that USP 9-83 expired on April 26, 1984,
because "no substantial work" had been done on the property. The court set
forth that under the terms of Municipal Code section 18.76.100, "substantial
evidence of use in progress" had not been demonstrated by CDC, noting that
residential use had not commenced on the property, and on-site construction
expenses had not been incurred. The court stated "[tlhe only activities
undertaken by CDC with respect to this site related to steps preparatory to its
application for a building permit.'' *1129
The court also found it significant that CDC had not yet made formal application
for a building permit.
The court determined that Municipal Code section 18.76.100 was not vague. It
found the ordinance to be valid and reasonably certain and capable of
interpretation "in accordance with legislative intent and with a common
understanding of the language used." The court interpreted the purpose of the
ordinance to be the automatic expiration of the permit when the permittee has
"neither actually used the land for the purpose stated in the permit nor
substantially begun construction work necessary for the use .... '[Elvidence of
use' requires that the permittee actually use or occupy the land to a substantial
degree for the purpose stated in the permit."
The court also found that the city council properly denied an extension of USP
9-83. In response to the estoppel claim, the court found that CDC had not
performed substantial work in reliance on the permit or upon representations of
city officials.
II
Validity of USP 9-83
(1) CDC argues that the trial court erroneously construed Municipal Code
section 18.76.100 as intending "to cause the automatic expiration of use permits
where the permittee has neither actually used the land for the purpose stated in
the permit nor substantially begun construction work necessary for the use."
Thus, CDC contends, the trial court incorrectly found that CDC's failure to
actually construct buildings on the Sanderson Way site constituted a lack of
"substantial evidence of use in progress." We agree and hold the trial court's
determination, that the permit had expired for lack of substantial evidence of use
in progress, was arbitrary and contrary to authority.
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. (Upton v. Gray (1 969) 269 Cal.App.2d 352, 357 [74 CaLRptr. 7831; Morgan
v. County of San Diego (1971) 19 Cal.App.3d 636, 641 [97 CaLRptr. 1801.) In
Morgan, the court examined the building department official's exercise of
discretion in determining whether the permit should be renewed. The permit
provided for its own automatic expiration in six months, if not renewed. The
official charged *1130
with determining the propriety of renewal made an on-site inspection of the
property, found that the lack of extensive construction demonstrated the
permittee's dilatoriness and refused to renew the permit. The Court of Appeal
held that the official abused his discretion by applying such a standard. As the
court observed, "the extent of construction alone does not invariably show
whether a permittee is ready to proceed .... [Mluch work must be done on the
drawing board, in governmental and banking offices before the pick and shovel
may be wielded and mortar poured." (Morgan v. County of San Diego, supra, 19
Cal.App.3d at p. 641 .) The court reasoned that a standard concerned only with
the extent of construction, especially when a complex and expensive project is
involved, is unreasonable
and "bears no necessary or direct relationship to whether a good faith intent to
commence upon the use exists." (Ibid.) The Morgan court affirmed the trial
court's issuance of a writ of mandamus requiring the local agency to renew the
permit. ( Id., at pp. 638-642.)
As in Morgan, CDC's development project herein involved complex
governmental and financial commitments. HUD, as the financier of this low-cost
housing development, required review and approval of each step of the project,
from site location, to architectural and engineering studies, to the bidding of the
actual construction contract. During the term of the use permit, CDC purchased
the land, hired architects and engineers for requisite studies and continued to
actively pursue the project with HUD. Further, the city council had been informed
that the only reason a building permit had not been issued, other than the
determination of an invalid use permit, was CDC's failure to pay the building
permit fees. The city council was also informed that the reason for this
nonpayment was that HUD's review process demanded such fees be paid by the
contractor to whom the bid was awarded. A successful bidder on the
construction contract had not been determined at the time CDC submitted its
plans to the Fort Bragg building inspector for review. In fact, opening of the bid
procedure had been delayed in July and August 1984 because of the city's
building permit review process and because of an appeal of the use permit
extension.
The record in this case clearly demonstrates CDC was proceeding with a good
faith intent to commence upon the proposed use. It is undisputed that CDC
pursued and obtained a funding commitment from HUD; that it purchased the
Sanderson property at a cost of $95,000; hired architects and engineers for the
performance of preconstruction work at a cost of $85,000; had soil borings
performed; arranged for the removal of two small structures; and submitted plans
to Fort Bragg's building inspection for "plan check review." The trial court's
determination that substantial evidence of use was not shown because of the
absence of actual on-site construction *1131
bears no definitive relationship to the purpose of the Fort Bragg ordinance. In a
complex, government-financed development, a good faith intent to proceed may
be established in several ways, exclusive of actual on-site construction. In light of
the evidence of the complex HUD approval process, the amount of funds already
expended by CDC in preconstruction work, test borings, surveying, and CDC's
diligent pursuit of HUD and local approval at each stage of development, it was
unreasonable for the trial court to apply a standard concerned with the extent of
construction alone. [FN4]
FN4 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 18.76.1 00 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.
111
(2) We must next consider whether the trial court's erroneous interpretation of
the expiration provision prejudiced CDC and requires reversal of the judgment.
Thus, we must examine the propriety of the trial court's findings that,
notwithstanding the permit's expiration, it had been improperly issued in the first
instance.
The city council, in determining that USP 9-83 was invalid, relied on three
specific factual findings; that, CDC did not demonstrate substantial evidence of
use of the permit; that mitigation measures contained in the negative declaration
and conditions of approval for the project were insufficient to mitigate
environmental impacts on traffic, drainage and water, and that written notice of
the April 26, 1983, zoning administrator's hearing was not received by property
owners in the area. The trial court found the city council's decision and findings
did not constitute an abuse of discretion and were
supported by the weight of the evidence.
The trial court's determination does not withstand analysis. By the terms of
Municipal Code section 18.76.1 00 itself, expiration would only occur if there was
no substantial evidence of use in progress. Thus, citation to the project's
environmental impact is superfluous to a determination of expiration. Also, the
city council seems to have been under the misconception that it was to
determine whether notice was actually received by all the adjacent property
owners as opposed to determining if proper notice was given.
(3) Additionally, even if we were to construe the trial court's determination of the
permit's invalidity, based on these reasons, as constituting an attempted
revocation of the permit, the judgment would not be saved. A *1132
municipality's power to revoke a permit is limited. A conditional use permit may
not be revoked arbitrarily without cause. Furthermore, notice and hearing must
be afforded a permittee prior to revocation of a use permit. (See City of San
Marino v. Roman Catholic Archbishop (1960) 180 Cal.App.2d 657, 665 [4
CaLRptr. 5471, cert. den. 364 U.S. 909 [5 L.Ed.2d 224, 81 S.Ct. 2721; Trans-
Oceanic Oil Corp. v. Santa Barbara (1948) 85 Cal.App.2d 776, 795-797 [194
P.2d 1481.) Municipal Code section 18.76.1 10 codifies these procedural due
process requirements pertaining to revocation. The record is clear that CDC was
not afforded notice
of the city council's intention to consider revocation of USP 9-83 at the October
22, 1984, hearing. The hearing solely concerned the expiration of the permit in
light of whether substantial evidence of use had been demonstrated by CDC.
Any attempted revocation is therefore a nullity.
The judgment is reversed and the cause remanded. The trial court is directed to
order reinstatement of use permit USP 9-83 and issue a writ of mandate
commanding respondent Fort Bragg to issue a building permit. Appellants are
awarded costs on appeal.
White, P. J., and Barry-Deal, J., concurred.
Cal.App.1 .Dist.,l988.
Community Development Com'n of Mendocino County v. City of Fort Bragg
END OF DOCUMENT