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Home My WebLink About1985-09-10; City Council; 8257-1; "GRANDFATHER" PROVISION OF ORDINANCE NO. 9764 - BEACH OVERLAY ZONE"GRANDFATHER" PROVISION OF ORDINANCE NO. 9764 - BEACH OVERLAY ZONE. AB# f257 -+I TITLE: DEPT. PLN r-l MTG.4/lnlas *rl DEPT. 1 CITY A- CITY M 4 kh 04 u?l Ep.' E+ 02 ZG Y$j 5% a$ P 5 -$ !i & c, 4.c -2 -8 3 cdQ w Z8 cd $2 -rl E& a?? 8 -rl q gk !33 uu # k$ 8: ?i 3 -rl 4 -% @2i -2 SOE 2 32 s %-El [I] QQ In a3 I 0 4 I m .. z s a b $ z 3 0 0 r? -. til) OF CARLSBAD - AGEN~ BILL RECOMMENDED ACTION: If the City Council determines to modify the "Grandfather" provision of the Beach Overlay Zone Ordinance, your action woul to direct the City Attorney's Office to prepare documents amend Section 21.82.080 of Ordinance No. 9764. ITEM EXPLANATION Section 21.82.080 of the recently approved Beach Overlay Zone exempts for two years projects located within the zone which ha already received final discretionary approval. The attached memorandum to the City Manager contains an updated list of the projects which would be exempted. The list also indicates what stage of the process the projects are in (i.e, final map, build permit, plan check). The City Council requested this informati in order to discuss whether the "Grandfather" provision of the Beach Overlay Zone should be modified. Also attached is a memorandum from the City Attorney discussins legal alternatives available to the Council in applying the neb standards of the Overlay Zone to previously approved projects. EXHIBITS 1. Memorandum to City Manager from Land Use Planning Manager dated September 4, 1985. 2. Memorandum to Land Use Planning Manager from City Attorney dated August 29, 1985. 3. Ordinance No. 9764 - Beach Overlay Zone. - a e SEPTEMBER 4, 1985 TO : FRANK ALESHIRE, CITY MANAGER FROM: Land Use Planning Manager APPROVED PROJECTS IN BEACH OVERLAY ZONE AREA Following is an updated list of approved projects in the Beach Overlay Zone area which have not commenced construction as of September 4, 1985: I. Building Permits Issued Case No: Location: No. of Units: PCD-61 237 Tamarack 9 PCD-75 182 Chinquapin 3 11. In Plan Check Case No: Location: No. of Units: PCD-64 380 Acacia 18 CP-306 3655 Garfield 3 PCD-73 340 Walnut 3 CT 84-16 Walnut & 9 Carlsbad Blvd. 315 Acacia 8 167 Maple 2 2723 Ocean 3 PCD-65 240 Chinquapin 10 111. Final Map Approved Case No: Location: No. of Units: CT 80-19 Maple & Garfield 9 CT 83-14 170 Walnut 8 *CT 84-18 Sequoia & 8 Carlsbad Blvd. IV. Tentative Map or Project Approved Case No: Location : No. of Units: CT 84-13 331 Olive 10 * This project is also in plan check. TOTAL NO. OF UNITS: 103 - e e ' August 29, 1985 TO: Land Use Planning Manager FROM : City Attorney LEGAL OPTIONS IN ESTABLISHING AN EFFECTIVE DATE FOR THE BEACH AREA OVERLAY ZONE The City Council in adopting Ordinance 9764, which established the Beach Area Overlay zone, included a provision that it would not apply to projects ". . .having received final discretionary approval pursuant to Title 20 and Title 21 ... prior to June 26 1985." That provision allowed a number of projects to proceed and pull building permits notwithstanding the fact that the project would be in violation of the new parking height or density standards. Council, at their meeting of August 27, 1985 asked you for additional information on the "grandfathered" projects. This memorandum is assist you in providing that information by discussing the legal alternatives available to th Council in establishing the effective date for the new standards. The general rule California is that a property owner does not have any right to a particular zone on his property and that a property owner can only vest rights in zoning (gain exemption from subsequent changes in zone) by obtaining a building permit and spending money to commence construction in reliance on that permit. That means that if the City Council was satisfied that the public health, safety and welfare required it they could hay applied the new standards of the beach overlay zone to all projects area that were not actually under construction on the date the ordinance was adopted. The general rule has been criticized in some quarters as being unduly harsh in its effect on the property owner. Courts have recognized that there may be some circumstances where a buildin1 permit is not the sin qua non of a vested right. That is, it m4 be possible for a developer who has spent substantial amounts o money in reliance on some other form of city permit, such as a conditional use permit, to vest his rights in the project. You have indicated that a number of the "grandfather" projects are currently in plan check in the Building Department. If the Cit Council were to amend Ordinance No. 9764 to apply to such projects we might expect efforts to persuade a court that the expenditures by the property owner in arranging financing, designing the project , and preparing plans and building specifications would be sufficient to establish vested rights. We could also expect that the property owners would attempt to find some comfort in the provisions of Government Code Section 65589.5. That section requires that the City Council make two 0 -2- e findings before it makes a decision to allow a project to go forward at a lower density then that provided for in the general plan and zoning in effect at the time the project application was first submitted. Those findings, which must be supported by substantial evidence in the record, are: 1) That the project would have a specific adverse impact upon the public health or safety; and 2) That there is no feasible method to satisfactorily mitigate or avoid that inverse impact. It is our advice that if the Council did wish to amend the grandfather provision and apply the beach overlay zone to pending projects that the findings required by 565589.5 be made. In making their decision on that Council will also want to keep in mind the provisions of Government Code Section 65589.6 which provides that any action taken to challenge the validity of a decision by the City to disapprove a project or approve it at a lower density after making the S65589.5 findings that the City must bear the burden of proof that its decision has conformed to all the requirements of that section. In making a decision to "grandfather" projects the City Council is basically making judgments based upon considerations of fairness and that is clearly a question of policy. There are a number of points at which the line can be drawn. Council may retain the existing provision, move it closer to the actual issuance of building permits all the way to requiring substantial construction pursuant to those permits, or the City Council may move the line in the other direction to grandfather more projects by including those that have received some discretionary approvals or that are involved in the process of obtaining some of those approvals. In making a decision in thai regard, Council will probably want to balance the hardship on ti developer by denying grandfather status against the potentially adverse affects on the beach area from allowing progress to go ahead under the old standards. If you need any further information on the available legal options in preparing the information for the Council please let us know. 'i \\I VINCENT F. BIONDO, JR. City Attorney rmh .. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 2 15 16 17 EX HIE I1 e 0 ORDINANCE NO. 9764 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING TITLE 21, OF THE CARLSBAD MUNICIPAL CODE BY THE ADDITION OF ZONE. The City Council of the City of Carlsbad, Californi< CHAPTER 21.82 ESTABLISHING THE BEACH AREA OVERLAY does ordain as follows: SECTION 1: That Title 21 of the Carlsbad Municipal is amended by the addition of Chapter 21.82 to read as follo CHAPTER 21.82 BEACH AREA OVERLAY (BAO) ZONE Sections: 21.82.010 Intent and purpose. 21.82.020 Application. 21.82.030 Permitted uses. 21.82.040 Site development plan. 21.82.050 Building height. 21.82.060 Parking. 21.82.070 Dwelling units per lot. 21.82.010 Intent and purpose. The intent and pur of the beach area overlay (BAO) zone is to supplement the ,underlying residential zoning by providing additional regul for development within designated beach areas to: l8 19 20 21 22 23 24 25 26 27 28 I (1) Ensure that development will be compatible wi /surrounding developments, both existing and proposed, in th 'beach area. (2) Provide for adequate parking as needed by residential projects. (3) to serve the beach area. (4) and aesthetic quality of the area. 21.82.020 Application. The beach area overlay z( shall apply to any residentially zoned property within the bounded by the AT&SF Railroad right-of-way to the east, thc Pacific Ocean to the west, Buena Vista Lagoon to the north Agua Hedionda Lagoon to the south. 21.82.030 Permitted uses. In the beach area ove zone, any principal use, accessory use, transitional use o conditional use permitted in the underlying zone is permit subject to the same conditions and restrictions applicable Ensure that adequate public facilities will E Protect the unique mix of residential develol l .- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 2 15 16 17 e 0 such underlying zone and to all of the requirements of this chapter. 21.82.040 Site development plan required. No buil permit or other entitlement shall be issued for any use in t beach area overlay zone unless there is a valid site develop plan approved for the property processed pursuant to Section 21.06 (Q-Overlay Zone) of the Municipal Code. When a develo requires a conditional use permit or is processed pursuant t Chapter 21.45 of this code a site development plan is not required unless the planned development is for four or less in which case a site development plan shall be processed. Further, a site development plan is not required for the construction, reconstruction, alteration or enlargement of a single family residential dwelling on a residentially zoned 21.82.050 Building Height. No newly constructed, reconstructed, altered or enlarged residential structure wit beach area overlay zone shall exceed two stories or 25 feet height whichever is less. Covered parking areas shall be cc to be a story and shall Se included in determining height. 21.82.060 Parking. (a) Resident Parking. All dwelling units shall hz least two full-sized residential parking spaces, one of whic must be covered, except for studio units which shall have a of 1.5 parking spaces per unit, for which one space per unil shall be covered. In cases where a fractional parking spact required, the required number of spaces shall be rounded tc nearest highest whole number. (b) Visitor Parking. (1) Visitor parking shall be provided as fol. No. of Units Amount of Visitor Pal li 21 22 23 24 25 units units, plus 1 space each 4 dwelling unit above 10 or fraction thereof. Twenty hercent of the visitor parking spaces may be provide tandem parking if the garages are set Sack at least twenty from the front property line, or in the case where no indiv property lines are present, then at least twenty feet from 27 28 feet) . parking may be provided as compact spaces (eight feet by fi -2- . 1 2 3 e * (3) No credit will he given for on-stree (c) Building setbacks from open parking areas shal (d) Screening of Parking Areas. All open parking parking to satisfy any of the parking requirements above. be less than five feet. 4 5 6 7 8 consisting of five or more spaces shall be screened froin ad] residences and public rights-of-way by either a view-obscuri wall or landscaping suSject to the approval of the land use planning manager. 21.82.070 Dwelling units per lot. a) Unless a lower residential density is establis by the unierlying zoning the number of residential dwelling permitted on a lot shall be as follows: (1) For property which has a general plan des EFFECTIVE DATE: This ordinance shall be effective days after its adoption, and the City Clerk shall certify to 25 fin the Carls'oad Journal within fifteen days after its adopti d *. I* 1 2 3 4 5 6 7 8 9 10 e * INTRODUCED AND FIRST READ at a regular meeting of tl- Carlsbad City Council Held on the 23rd day of July and thereafter PASSED AND ADOPTED at a regular meeting of said Citl Council held on the - 6th day of WFt , 1985 by the following vote, to wit: AYES: NOES: None ABSENT: Council Wn-ber Pettine Comcil Pkxrbers Casler, Lewis, Kulchin, and Chick APPROVED AS TO FORM AND LEGALITY \ 14 > 15 16 17 l8 l9 20 21 22 23 24 25 26 27 28 %A \y d cL&.- MARY 13. ASLER, Mayor ATTEST: 0 I ‘AL&&MdE N!L*$k -4-