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TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT
DATE: JANUARY 21, 2003
SUBJECT: REVIEW OF LARGE DOMESTIC ANIMAL NONCONFORMITY STATEMENT NO. 26 [SUTTON, 16 PEPPERTREE DRIVE]
Staff Coordinator: Kit Fox, AICP, Senior Planner
Determine the maximum number of large domestic animals that may be "grandfathered" for keeping and/or boarding on the properties at 16 Peppertree Drive.
Section 17.46.080 of the Rancho Palos Verdes Development Code (RPVDC) provides for the filing of nonconformity statements related to the keeping of large domestic animals in the City. Pursuant to this Code section, the final determination on these statements was to be made by Staff. However, in the course of reviewing the statements submitted to the City, it became clear that Staff’s determination on some of these statements might be disputed, either by the party who filed the statement or by another interested party. Therefore, in 1999 Staff sought direction from the City Council regarding the final disposition on any disputed nonconformity statements, and the Council determined that it would make the final determination on any disputed statements. Of the twenty-six (26) nonconformity statements submitted, five (5) have been disputed. This is the fifth of the disputed statements to be presented to the City Council for a final determination.
Staff has reviewed Nonconformity Statement No. 26, filed by Everett and Marlene Sutton for the property at 16 Peppertree Drive. Based upon this statement and a site inspection, Staff determined that a maximum of ten (10) large domestic animals could be kept, of which a maximum of seven (7) animals could be boarded. The Suttons have not disputed Staff’s determination on Nonconformity Statement No. 26, but a written objection to Staff’s determination has been submitted by Joe Deeble, the owner of an adjoining developed property. At the Suttons’ request, this matter was continued from the October 15, 2002 City Council meeting to the November 5, 2002 meeting. However, prior to the November 5, 2002 meeting, then-Mayor Pro Tem Stern asked Staff to further research the number and ownership of the boarded horses listed in the Suttons’ nonconformity statement. Therefore, the matter was pulled from the November 5th agenda and has been rescheduled for discussion at tonight’s meeting.
The Suttons’ nonconformity statement was reviewed as follows under the 8-step process outlined by Staff at the April 16, 2002 City Council meeting and in the attached process flowchart, which was used in the evaluation of all of the nonconformity statements filed:
1. Was a Nonconformity Statement filed with the City on or before October 3, 1997?
2. Is the property located in an Equestrian Overlay (Q) district?
3. Is the subject property developed and at least fifteen thousand square feet (15,000 SF) in area?
4. Is the subject property vacant and at least five thousand square feet (5,000 SF) in area?
5. How many animals were legally kept on the subject property on February 1, 1997?
6. How many of the animals kept on the subject property are also boarded?
7. Is the subject property under the same ownership or control as it was on July 1, 1975 and was the boarding of five or more animals being lawfully conducted on that date?
8. How many animals were boarded on the subject property on February 1, 1997?
In summary, under the "old" (i.e., pre-1997) provisions of the Development Code, up to four (4) animals could have been kept on the developed lot and up to six (6) animals could have been kept on the vacant, contiguous lot, for a total of ten (10) animals on both of the Suttons’ lots combined. Any or all of these animals could have been "boarded," meaning that they are not owned and/or maintained by the property owner. Under the current Development Code, a total of up to four (4) animals could be kept and/or boarded on both lots combined without the approval of a large domestic animal permit or conditional large domestic animal permit.
RPVDC Section 17.46.080 begins as follows:
Except as provided in this Section, all existing buildings, structures, fences, enclosures and uses of land, including the number of animals allowed by this Chapter, which do not conform to the provisions of this Chapter, but were existing as legal conforming uses or structures on February 1, 1997, shall be considered legal nonconforming uses and/or structures for purposes of this Chapter. The owner of a parcel or use which has been rendered nonconforming by the provisions of this Chapter shall file a written nonconformity statement with the Director in order to establish a record of the nonconforming use or structure. The written statement shall be filed with the Director by October 3, 1997. [emphasis added]
According to Nonconformity Statement No. 26 (attached), there were ten (10) large domestic animals kept on the Suttons’ property as of February 1, 1997, although during a subsequent inspection of the property in October 1998, only four (4) horses were observed by Staff. Seven of the animals listed on the nonconformity statement were boarded, based upon information provided by the Suttons. Since the keeping and/or boarding of up to ten (10) animals was permitted by right under the "old" Development Code provisions and this was the number of animals requested by the Suttons (although fewer than the number later observed by Staff on the site), Staff determined that the number of animals requested by the Suttons (i.e., ten) could be "grandfathered" for the property. In addition, since the Suttons provided documentation that they owned the subject properties prior to July 1, 1975, Staff also determined that the "grandfathered" boarding of seven (7) horses could be granted in perpetuity, pursuant to RPVDC Section 17.46.080(C)(3).
In his attached letter of September 3, 2002, Mr. Deeble provides no further basis for disputing Staff’s determination regarding Nonconformity Statement No. 26. However, in previous correspondence to the City, Mr. and Mrs. Deeble have both noted their objections to the "grandfathering" of any horsekeeping activities on the Suttons’ property. In the attached letters dated June 11, 1999, the Deebles claim that the Suttons have not maintained the numbers of horses that are listed and described in their statement. The Deebles, whose property directly abuts the Suttons, have stated that they have observed an average of 3 to 5 horses kept on the subject properties since the late 1970’s.
In July 2001, the non-conformity section of the City’s equestrian regulations (Section 17.46.080(F)) was amended to allow the City Council to make a determination regarding the number of animals to be "grandfathered" if the number cannot be determined with certainty:
If the owner of the property for which a written nonconformity statement was submitted in 1997, or any resident, files a timely challenge to the director's determination of the number of large domestic animals that were kept on the property as of February 1, 1997, based on the challenger's statement that the number of large domestic animals that were kept on the property fluctuated in 1997 such that the number of large domestic animals that were kept on the property as of that time cannot be determined accurately, the City Council may approve up to the maximum number of large domestic animals that the property owner testifies were kept on the property at any time during calendar year 1997, provided that:
The Deebles’ letters imply that the Suttons have been less than candid regarding the numbers and ownership of the horses kept on their property. Staff has only the information provided by the Suttons in their nonconformity statement upon which to make its determination, although, as noted above only four (4) horses were observed during the site inspection in 1998. The number of animals requested by the Suttons is equal to the maximum that could have been kept in 1997, and based upon Staff’s original inspection of the property, there appeared to be adequate facilities present—and more than adequate acreage—for the keeping of up to ten (10) horses.
In response to the request from then-Mayor Pro Tem Stern, on October 31, 2002 Staff asked the Suttons to provide contact information to the City (i.e., telephone numbers and addresses) for each of the owners of the seven (7) boarded horses listed in their nonconformity statement. Staff also asked the Suttons to provide any other written documentation regarding the past boarding and keeping of horses on the subject property. The Suttons were given until December 2, 2002 to produce this additional information. However, as of the date this report was completed, no additional information has been provided by the Suttons.
The property owner and the interested parties have been advised of the City Council’s consideration of this matter. Based upon the City Council’s determination, Staff will prepare a final nonconformity statement for recordation to the title of the Suttons’ property, as well as a Resolution memorializing the determination.
It should also be noted that the City Council’s determination does not preclude the Suttons from applying for a large domestic animal permit in order to change the number of animals permitted on the property or to add or modify structures on the property. The approval of a nonconformity statement only confers rights upon the subject properties, and not necessarily upon the Suttons. The City is aware that Mr. Sutton pleaded no contest to misdemeanor animal neglect charges in March of 2002, and will be prohibited, for period of five (5) years, from owning horses. However, the terms of the plea agreement with the District Attorney’s office appear to allow Mr. Sutton to lease his property to a third party, who could, in turn, keep and/or board horses on the subject properties. It is Staff’s understanding that Mr. Sutton may intend to lease his property for this purpose. Therefore, it is Staff’s intention that any determination regarding Nonconformity Statement No. 26 shall not permit the keeping and/or boarding of any number of horses on these properties in violation of any court order, plea agreement, settlement agreement or other legal action or instrument that would otherwise restrict or prohibit the keeping and/or boarding of horses—by Mr. Sutton and/or by any other person(s)—on these properties.
At then-Mayor McTaggart’s request on October 15, 2002, Staff has researched previous code enforcement issues regarding the subject properties. Although the address file contains a brief summary of previous code enforcement cases (see the attached file control sheet for 16 Peppertree Drive), it does not contain any detailed information about these specific cases. However, Staff has provided copies of applications, correspondence, Staff reports and minutes related to the approval of Special Animal Permit No. 6 for the subject property on September 21, 1976. Special Animal Permit No. 6 authorized the use of a 2-rail (rather than a 3-rail) corral fence. It should be noted, however, that Special Animal Permit No. 6 did not approve the Suttons’ original request to keep fifteen horses and two goats on the vacant 3.46-acre property. It should also be noted that the August 19, 1976 Planning Commission Staff report stated that the Suttons "[had] previously kept a maximum of six (6) horses at one time on said property, and presently [maintain] only one [horse]." This information may be useful to the City Council in determining the number of boarded horses that may be "grandfathered" under the pre-1975 boarding exemption.
The major unresolved issue in the Suttons’ case is the number of horses that were kept and/or legally boarded on the site, both in February 1997 and July 1975. The persons who have disputed Staff’s determination in this matter assert that the numbers of horses listed and described in the Suttons’ statement are exaggerated and should not be used as a basis for determining the number of animals "grandfathered" for the property. If the City Council accepts this argument and is not satisfied that sufficient evidence has been presented to support the Suttons’ claim, then the City Council might "grandfather" the property for the keeping and/or boarding of fewer horses in perpetuity. It is important to note, however, that up to four horses could still be kept and/or boarded by right on the Suttons’ combined properties under the current City Code. In summary, Staff is seeking direction from the City Council on the following issues with respect to Nonconformity Statement No. 26:
The subject matter of this item will have no fiscal impact upon the City, regardless of the action taken.
The alternatives available for the City Council’s consideration include: