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?
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/"''?&%?' ^Z>-^^^—^r
f\ ij T-> ~_ ~ ~,,.: j ,• (~^Ronald Bonaguidi
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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
\
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