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HomeMy WebLinkAbout1977-07-19; City Council; 5142; Bonaguidi Office Building-Sewer Moratorium AppealCITY OF CARLSBAD AGENDA BILL NO. ^yAx _ Initial:_ DATE: _ July 19, 1977 _ _ _ c> Atty DEPARTMENT: Engineering _ C. Mgr. r2 Subject:BONAGUIDI OFFICE BUILDING ,- SEWER MORATORIUM APPEAL Statement of the Matter Mr. Robert Walsh, of Bonaguidi Evons and Company, has requested' exemption of the proposed office building from the current sewer moratorium. His arguments are based on the existence of an existing single equivalent dwelling unit sewer connection at the site and processing of a zone change and site development plan prior to the moratorium, as well as the hardship which the moratorium has caused in this case. Despite the arguments in favor of the request, staff recommends denial for the reasons outlined in the attached staff report. EXHIBITS; * 1. Applicant's letter of appeal 2. Memorandum to City Manager 3. Vicinity Map RECOMMENDATION; "v That Council deny the request for exemption from Ordinance No. 7047 prohibiting application and processing of building permits. Council action 7-20-77 Due to a tie vote the Clerk was directed to place the matter on v the agenda for the meeting of August' 2, 1977. 8-2-77' This matter was continued to the adjourned regular meeting to be held August 4, 1977. 8-4-77 The Council granted the appeal and instructed staff to reinterpret the administrative guidelines for determining sewer connection permit requirements as outlined in the City Attorney's memo dated August 2, 1977. RICHARD H. KVONS RONALD M. BONACJUIDI RICHARD W. NEILL GARY O. BARRON BONAGUIDI EVONS AND COMPANY LA JOLLA FINANCIAL BUILDING SUITE 55O 12OO PROSPECT STREET LA JOLLA, CALIFORNIA Q2O37 (714)404-2112 June 28, 1977 Mr. Paul D. Bussey, City Manager City of Carlsbad, California 92008 Subject: Proposed Office Building on Pio Pico Dear Paul: RECEIVED JUN 3 0 1977 CITY OF CARLSBAD Engineering Department Please be advised that we request to exercise our right of appeal regarding the sewer situation and its direct hard- ship on all parties concerned. We would appreciate your scheduling us on the agenda for the July 19th meeting. At that time we would like to appeal to the City Council the full disclosure of our situation and how we feel justified in making this presentation. If you will accept this as our formal request and advise us of the schedule we would be most anxious to proceed. Thank you for your cooperation. Respectfully submitted, Robert J, BONAGUI RJW/ldb :VONS and COMPANY CC: Councilman Packard Mayor Robert C. Frazee Director Richard S. Osburn December 30, 1976 February 9, 1977 March 15, 1977 March 23, 1977 April 13, 1977 April 19, 1977 Contracts Lease Commissions Escrow Deposit. Working Drawings Survey Work Soil Test ' Research Cost TOTAL Application for zone change filed witn tne City. Fees paid : $155.00 Unanimous Planning Commission approval of the zone change for the property, conditioned with Q. Overlay requiring planning commission approval of the final site plan. Unanimous City Council approval of the zone change necessary for the project. Planning Commission meeting. My app- lication shifted to April 13th a loss of time and delay of 21 days. Unanimous approval from the Planning Commission of final site development. Moratorium. COST AND COMMITMENTS $ 22,000 6,000 2,000 10,000 1,450 1,250 14,400 $ 57,100 ACTIVITIES Employ construction coordinator to supervise all sub-contractors. Finalized loan commitment and payment to lender of $3,250 for loan. Finalized lease terms with New York Life Insurance Company. Relocation of their employees. Re-zoning application filed and $155.00 in fees paid. - 2 - MEMORANDUM - July 11, 1977 TO: City Manager FROM: City Engineer SUBJECT: Bonaguidi Office Building - Sewer Moratorium Appeal The proposed Bonaguidi office building is to be located on Pio Pico Drive between Pine Avenue and Oak Avenue. Proposed is a 2-story 11,500 square foot structure, together with parking areas for 30 cars. In conjunction with the project, a zone change (ZC 187) and site development plan (SDP 77-4) have been applied for and approved in advance of the April 19,sewer moratorium. However, since no building permit application had been received, the project has become subject to the sewer moratorium. Mr. Robert Walsh of Bonaguidi Evons and Co., has appealed the application of the sewer moratorium to this project. Arguments for allowing the project to proceed include the presence of an existing single EDU connection serving the parcel, processing of the zone change and site development plan prior to the moratorium, as well as the hardship which the moratorium has imposed in this case. Despite the arguments in favor of the project, staff would recommend that Council deny the request for the following reasons: 1. Both the zone change and the site development plan were processed promptly and without undue delays by staff. The applicant's reference to a 21-day delay during site development plan pro- cessing is incorrect. The site plan application was received on March 15, 1977, leaving 5 working days available to prepare for the March 23, meeting. This is not sufficient time to circulate the plan for input from other departments, prepare a staff report, schedule the project for a DCC meeting, and refer the site plan to the Planning Commission; all of which are required during the normal processing procedure. The processing steps were completed in advance of the next regularly scheduled Planning Commission meeting held on April 13, at which time the site development plan was approved as indicated by the applicant. 2. At the time of approval of both the zone change and the site development plan, it was found that basic public facilities, including sewer service, were available to serve the project. However, it was also a finding of the Planning Commission, when MEMO to City Manager Re: Bonaguidi Office Bldg. -2- July 11, 1977 the site development plan was approved, that sewer service may not be available at the time applications are made for building permits. Furthermore, it was also found by the Planning Commission that if sewer service was not available at some time in the future, building permits would not be issued until the City Council is satisfied that all necessary sewer facilities will be available prior to occupancy. 3. The project site has one equivalent dwelling unit sewer con- nection which serves the existing single family residence. However, sewer flows normally associated with an 11,500 sq.ft., office building exceed those associated with the existing use. As defined by the City sewer connection ordinance, the existing connection, if transferred from residential to office use, would be equivalent to one water closet and one urinal. Hence, the proposed office will increase sewer flows within the City's sewer system. 4. In order for Council to find sewer service is available to serve the site, staff would recommend the project become a part of the forthcoming sewer allocation system. As a part of the allocation system, the merits of the project as well as the hard- ships imposed by the moratorium can be balanced for both this project and similar projects. 5. Although it would have been improper to do so, the applicant could have submitted a building permit application at any time prior to the moratorium. However, no action would have been taken on the application until both the zone change and site plan had been approved. Tim Flanagan City Engineer TCF:FNL:ms too RONALD M. BOISTAGUIDI SONAGUIDI EVONS COMI'ANX (714) 4S4-Q112 City Council City of Carlsbad Attention: Mr. Paul Bussey City Manager I would like to request that ray appeal of the sewer moratorium (AB No. 5142 - Bonaguidi Office Building) which was continued to the August 2, 1977 Council meeting be deferred to the adjourned meeting scheduled August 4, 1977. This request is made to enable the matter to be heard by the full Council to alleviate the possibility of it ending in a split vote. Could you advise me by phone if this is possible? _— v /"''?&%?' ^Z>-^^^—^r f\ ij T-> ~_ ~ ~,,.: j ,• (~^Ronald Bonaguidi i <•! jt ^•f;"r'O n \A -iA 10 t 0 ° *- r- RICHARD H. BVONS RONALD M. BONAGUIDI RICHARD W. NEILL AND COMPANY LA JOLLA FINANCIAL BUILDING SUITE 550 1200 PROSPECT STREET LA JOLLA, CALIFORNIA 93037 (714) 454-9119 I request an exception to the sewer moratorium based on the following facts: 1) . There is currently existing and in use a sewer hook-up on the property. 2) . A zone change and site development plan had been processed prior to the moratorium. Dilligence was exercised in gaining all necessary city approvals. 3). Nearly $60,000.00 has been invested in this project. New York Life Insurance Company has executed a lease and approved a relocation of its regional office to Carlsbad. 4) . A building application could have been filed prior to the moratorium, however, staff instructed me "Not to worry about it" . 5) . Delays caused by staff in the processing of the site plan resulted in this development being subject to the moratorium. For example; staff required that my application for re- zone include an adjacent property. Additionally, I was required to submit an overall master development plan for a property which happened to be contigious to my site. Respectfully submitted, Ronald M. Bonaguidi ORDINANCE NO. AN EMERGENCY ORDINANCE AS AN URGENCY MEASURE OF THE CITY CocJNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING CHAPTER 18.04 OF THE CARLSBAD MUNICIPAL CODE BY 4 . THE ADDITION OF SECTION 18.04.170 TO IMPOSE A MORATORIUM ON THE ISSUANCE OF BUILDING 5 PERMITS IN THE CITY OF CARLSBAD DUE TO THE UNAVAILABILITY OF SEWER SERVICE SUBJECT TO CERTAIN EXCEPTIONS. 7 The City Council of the City of Carlsbad, California, does 8 ordain as follows: 9 SECTION 1: That Title 18, Chapter 18.04, of the Carlsbad 10 Municipal Code is amended by the addition of Section 18.04.170 11 I to read as follows: 12 "18.04.170 Moratorium - Sewer. Notwithstanding any provisions of this Chapter to the contrary, no building permit 13 shall be issued, nor shall any application therefor be accepted, in the City of Carlsbad except as follows: 14 1. Permits for work ir that portion of the City of Carlsbad within the service territory of the San Marcos or Leucadia Couniy Water Districts may be processed upon the presentation by the applicant of a valid sewer connection permit from such district. 16 Such permit shall be presented to the City of Carlsbad Building Department concurrently with the application for the building 17 permit._. The Director of Building and Housing shall verify that the p^rmTy is valid prior to issuance of the building permit. ( 2./ Bjjilding_permits may be processed and issued when the Od_fey Manager determines, pursuant to provisions of the18 \19 JO Carlsbad Municipal Code, that no new sewer connection permit woulcl_bjs_ necessary in connection with the work. The City Manager's determination may be appealed to the City Council whose decision _shall be final. 21 "' 3. Structures existing within the City of Carlsbad's sewer service area as of !;he date of this ordinance, being served 22 by septic tanks, may obtain a sewer connection permit if the City's public Health Officer certifies that the septic tank has 23 failed-and constitutes a health hazard. 4. Permits for construction for the Plaza Carnino Real 24 expansion pursuant to the contract between the Plaza Camino Real, the City of Carlsbad and the Carlsbad Parking Authority 25 dated November 5, 1975, may be processed and issued. 5. Building permits may be processed and issued for any 26 public-project undertaken by the City of Carlsbad. 6. Building permits may be processe-i and issued where 27 the Carlsbad Municipal Cc-de provides for an alternate method of sewage disposal. " 28 7. The City Council may grant exceptions for projects of CHRONOLOGICAL ORDER - CURRENT PROJECT STATUS November, 1976 November 16, 1976 November 23, 1976 December 15, 1976 December 21, 1976 December 30, 1976 January 14, 1977 January 18, 1977 January 29, 1977 February 9, 1977 March 14, 1977 104 days March 15, 1977 March 15, 1977 March 23, 1977 April 1, 1977 April 5, 1977 April 13, 1977 On at least three different occasions I met with staff prior to being allowed to submit a formal application for a zone change. Prior to filing I had to get adjacent property owners to join me on the rezone application. Travel to Los Angeles to meet with sellers of property. Execute purchase contract for sale of subject site. Travel to Los Angeles to meet with New York Life and discuss Carlsbad facility. Submit lease proposal to New York Life. Application for zone change filed with the City. Fees Paid: $155.00 Executed architectural contract and paid retainer. Filed negative environmental impact assessment with City. Contracted with surveyors to survey site. Unanimous Planning Commission approval of zone change for the property, conditioned with Q. Overlay requiring planning commis- sion approval of the final site plan. Meeting with staff, at which time I was required to redesign site plan to show a master development for my site as well as property adjacent. Staff indicates ability to have my project on agenda for March 23rd Council meeting. Architect on job at 5;00 a.m. re- designing site plan for master develop- ment including adjacent property. 8:00 a.m. new master plan submitted to staff. Unanimous City Council approval of the zone change necessary for the project. Planning Commission meeting. My application shifted to April 13th, a loss of time and delay of 21 days. Attended probate approval of sale in Pasadena. Adoption of the ordinance by the City Council for rezoning of the site. Unanimous approval from the Planning Commission of final site development. All city approvals complete except for building permits. April 19, 1977 Moratorium. April 24, 1977 Filed a building permit with Mr. Bussey and attempted to submit plans and drawings; the application was completely filled out in an effort to establish a priority. At this point all necessary city approvals had been obtained and all work was complete except for building permit. April 25, 1977 Letter to R. Beckman requesting I be allowed to install a septic tank as an alternate method of sewage treatment. Letter to Dr. Packard & Mayor Frazee, emphasizing the financial hardship I will suffer and the extensive work that had already been completed. May 18, 1977 Letter to James Hagaman bringing to his attention the financial hardship and requesting review based on the existing sewer hookup. May 20, 1977 Letter to Hagaman with attached answered questions regarding proposed sewer allocation criteria. June 28, 1977 Requested scheduling for City Council agenda. June 28, 1977 Requested that City Manager allow us to submit our plans and pay the plan check fees in an effort to keep from losing additional time. FINANCIAL COST AND COMMITMENTS Contracts $ 22,000 Lease Commissions 6,000 Escrow Deposit 2,000 Working Drawings 10,000 Survey Work 1,450 Soil Test 1,250 Research Cost 14,400 Loan Fees 3,250 TOTAL $ 60,350 ACTIVITIES Employ construction coordinator to supervise all sub-contractors. Finalized lease terms with New York Life Insurance Company. Successfully obtained re-zone approval and site development plan approval. Completely prepared for commencement of construction except for building permit. Architectural Plans complete, survey and soil test finished, and financing arranged. •'.y MEMORANDUM » r O DATE: August 2, 1977 TO: Mayor and City Council FROM: City Attorney SUBJECT : BONAGUIDI APPEAL When you considered this matter at your July 19', 1977 meeting, two members of the Council voted to grant the exemption. Because of a tie vote, no action was. taken and the matter will be placed before you again at your regular meeting of August 2, 1977 with a notation that it is contemplated that it will be continued to the adjourned meeting of August 4th. The question as to whether or not Mr. Bonaguidi's project should be exempted from the building permit moratorium involves policy considerations which are solely the province of the City Council.' This memo- randum is to express some legal concerns with the way in which the exemption would be granted should that become the decision of a majority of the Council. The City has for a number of years had an established system for determining whether or not a sewer connection permit is required in connection with a -building permit. As it has been explained to me, the system includes a requirement that a separate permit be obtained for each equivalent dwelling unit. Equivalent dwelling units for commercial and industrial purposes are defined in terms of bathroom facilities. Prior to the moratorium the primary effect of this system was to determine the number of permit fees to be paid in connection with the building. Notwithstanding the recent substantial increases in the fee, the City has experienced no challenges, to the legalities of its sewer permit system. The staff report on the Bonaguidi project indicates that there is one existing sewer connection permit for the property. It indicates further that the proposed project will involve a sufficient number of bathroom facilities under our system to require two sewer connection permits. Since the second permit would be a new permit the project falls squarely within the building permit moratorium ordinance which prohibits* the issuance of building permits if a new sewer connection permit would be required in connection with the work. Mr. Bomiguidi Mayor and City Council ~2~ August 2, 1977 was informed of the City Manager's decision in that regard and has brought the matter to the Council. During the course of Mr. Bonaguidi's presentation, I do not recall any evidence being offered as to whether or not the City Manager's decision was correct in terras of his application of our system. There was substantial .testimony about the individual hardships involved and the desirability of the project. The moratorium ordinance does not contain any waiver provisions nor any provisions to allow exception to be made based on hard- ship or the desirability of private projects. This matter is before you as an appeal of the City Manager's decision. While the Council has discretion in dealing with appeals, that dis- cretion is not unlimited. It must be exercised in a reasonable manner based on the evidence before you. In my opinion, no evidence has been presented which would support a reversal of the City Manager's decision. In view of the limited amount of capacity available, any decision to grant capacity to one individual is in effect a decision to -deny it. to another. It is not unreason- able in such situations to expect the individuals denied capacity to carefully review the Council's action in that regard. It seems to me it is advisable, insofar as we can, to attempt to make all of these decisions in a legally defensible manner. If the City Council determines that this situation is one which requires remedial action, there are several ways in which this might be accomplished. The most desirable option in that regard, from a legal point of view, would be to recognize through an. amendment to the ordinance, what•in fact has been requested, and that is an exemption from the moratorium. During the hearing there was some evidence offered that the proposed structure would not require any more capacity than the existing structure. Based on that evidence, the grounds for an exemption could be as follows: 1. There is an existing sewer connection to the property. 2. Notwithstanding the fact that an additional connection would be required under our system, 'the project itself will not involve significantly increased amounts of capacity over and above that necessary to serve the existing use. 3. Since there will be no added burden on the City's capacity, the purposes of the moratorium ordinances would have been met. Mayor and City Council -3- August 2, 1977 4. Since the ordinance's purposes have been met, there is no useful purpose to be served by denying a building permit for the project. If the Council is satisfied with that analysis, you should proceed to amend the ordinance to add an exception in that regard. The amendment would add Subsection 10, to Section 18.04.170, and might be worded as follows: The City Council may grant exceptions for private projects if the City Council in its sole discretion determines : (a) That the project involves the remodeling, reconstruction or replacement of an existing structure within the City which is presently served by an existing sewer connection for which a sewer connection permit has been issued. (b) The work will be accomplished solely within the limits of the lot upon which the structure is located. (c) That the completed project will not use any more capacity in the sewage treatment plant than that required to serve the existing structure." The ordinance amendment would necessitate some delay in the commen cement of construction of the project to allow for first and second reading and the thirty day period before the ordinance • could be effective. The City Council, if they wish to pursue this option, could make the contemplated findings in advance as part of their decision on the appeal and make their decision on the Bonaguidi project effective upon the effective date of the ordinance amendment. There is a second approach which might be used and that involves a motion instructing the City Manager to amend the City's system jfor determining whether or not a sewer cnnnprH-ion permit is That amcndmon-k would provide that notwi thstajnding the system a nc?w sr-w^r connection ..permit would not be required •ijf tb^ City Manager made the same findings &s_ tho ordiruuico amendment. This option would avoid the time delay necessary for an ordinance amendment. However, it is not as desirable for several reasons. The primary one being, it introduces an element of capacity into a system which is based on other factors. While Mayor and City Council -4~ August 2, 1977 a capacity system-may be desirable in terms of sewer permits, it involves a number of complex problems which would have to be resolved before such a system could be implemented. The City Manager and the Public Works Administrator can speak to those problems which involves an area of their responsibility. One problem that presents itself in regards to both options is that if a decision to grant a building permit is based on the amount of capacity to be used, such a determination necessarily goes .not only to the type of building built, but the proposed use of that structure. We would have no assurance that a building and sewer permit issued for one use would not shortly thereafter be changed to some other use which might involve substantially greater capacity demands. A further problem is that to the extent others could qualify for the same exception, there could be further reductions in the remaining amount of available sewer capacity. However, it seems to me these problems are a necessary consequence of granting this type of exemption. They can only be avoided by upholding the City Manager's decision and referring a resolution 'of the Bonaguidi project to the alloca- tion system. If the Council desires to approve the project now, I recommend using one of the two alternative solutions. • Notwithstanding the problems they entail, they have the advantages of identifying some objective factors which might indicate that the Bonaguidi property should be treated differently from the other commercial properties seeking building permits and ensuring that similarly situated individuals would be treated in the same way. To attempt to deal with this kind of problem by granting permissions to build on a purely subjective basis could be construed as arbitary actions which could not be sustained in the event of a legal challenge. \ VINCENT F, BIONDO, JR. City Attorney \ VFB/mla