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TO: HONORABLE MAYOR AND COUNCIL MEMBERS
FROM: THE CITY ATTORNEY AND THE DIRECTOR OF PLANNING, BUILDING & CODE ENFORCEMENT
DATE: APRIL 18, 2006
SUBJECT: PROPOSED MORATORIUM ON CERTAIN DEVELOPMENT WITHIN THE ENTIRE LANDSLIDE MORATORIUM AREA OUTLINED IN RED AND BLUE PENDING REVIEW OF ADDITIONAL INFORMATION AND AN UPCOMING STUDY SESSION
1) ADOPT ORDINANCE NO. ______U, AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES EXTENDING URGENCY ORDINANCE NO. 427U ESTABLISHING A MORATORIUM ON THE ISSUANCE OF CERTAIN PERMITS AND THE PROCESSING OF PLANNING APPROVALS AND SUSPENDING CERTAIN PREVIOUSLY ISSUED BUILDING PERMITS AND APPROVALS, IN THE PORTION OF THE LANDSLIDE MORATORIUM AREA OUTLINED IN BLUE ON THE LANDSLIDE MORATORIUM MAP ON FILE IN THE CITY’S PLANNING, BUILDING AND CODE ENFORCEMENT DEPARTMENT, WHICH INCLUDES PORTIONS OF DAUNTLESS DRIVE, EXULTANT DRIVE, ADMIRABLE DRIVE AND PALOS VERDES DRIVE SOUTH, AND IMPOSING A MORATORIUM ON THE ISSUANCE OF CERTAIN PERMITS AND THE PROCESSING OF PLANNING APPROVALS AND SUSPENDING CERTAIN PREVIOUSLY ISSUED BUILDING PERMITS AND APPROVALS IN ALL AREAS OF THE LANDSLIDE MORATORIUM AREA AND DECLARING THE URGENCY THEREOF, AND 2) SET A DATE FOR A WORKSHOP ADDRESSING THE ENTIRE LANDSLIDE MORATORIUM AREA AND DEVELOPMENT WITHIN THAT AREA AND GEOLOGIC DISTINCTIONS THAT CAN BE DRAWN AMONG THE VARIOUS PORTIONS OF THE LANDSLIDE MORATORIUM AREA.
At the last City Council meeting, the City Council heard additional testimony about the recent movement of the Klondike Canyon Landslide. A majority of the Members of the City Council stated that they wished to have staff bring back an ordinance restricting development within the larger portion of the Landslide Moratorium Area (“the Red Area”) so that development within the Red and Blue Areas would be treated similarly. The City Council also stated that the Council would like to schedule a future workshop to occur within sixty days to discuss the regulation of development within the entire Moratorium Area, and the scientific distinctions that can be drawn between the various portions of the Moratorium Area.
On November 15, 2005, the City Council adopted Urgency Ordinance No. 427U, which established a 60-day moratorium on the processing and issuance of building, grading or other permits, and landslide moratorium exception permits and the processing or approval of Environmental Assessments, Environmental Impact Reports, Conditional Use Permits, height variation applications, tentative maps or parcel maps in the Blue Area and temporarily suspended Section 15.20.040 K of the Rancho Palos Verdes Municipal Code. These actions were taken to allow time for the completion of collection of new geological data to determine whether construction in the Blue Area is safe in light of the newly observed cracks in the street, or if the proposed development could adversely impact the stability of said Area, or if new structures in the Blue Area will be adversely impacted by the recent increase of movement of the Klondike Canyon Landslide.
Ordinance No. 427 U has been extended twice, once in order for additional time to collect more GPS data and for the City’s Geologist to be able to review and evaluate that data and prepare a report to the City Council, and a second time so that the City Council and the public would have adequate time to review the report from the City’s Geologist. The second extension of Ordinance No. 427 U will expire on April 20, 2006.
In order for the status quo to be preserved while the City is preparing for and conducting the study session, it is necessary to extend Ordinance No. 427 U again. The attached Urgency Ordinance extends the provisions of Ordinance No. 427 U for an additional ninety days, to July 19, 2006, so that there will be adequate time for the City Council to hold the upcoming study session and give direction to Staff about how the Council wishes to proceed. This means that the City will not issue permits for construction of additions or new structures within the Blue Area, pursuant to the special exception that was created for the Blue Area, which is codified in Section 15.20.040 K of the Municipal Code.
At the last City Council meeting, a majority of the Members of the City Council stated that they wished to treat the Red and Blue Areas similarly. In particular, the City Council was concerned about continuing to allow new additions to be constructed within any portion of the Landslide Moratorium Area until the Council receives additional information from the City’s geologic consultants. Accordingly, the proposed Urgency Ordinance that is attached to this report also imposes a moratorium on new additions within the Red Area.
However, because there are so many different types of exceptions that are permitted under the Moratorium Ordinance, and to ensure that Staff understands the City Council’s direction, each type of Moratorium Exception is discussed below, along with Staff’s recommendation about whether it should be subject to the proposed urgency ordinance so that the City Council can give direction to Staff regarding each type of Moratorium Exception.
There are fifteen different types of Exceptions to the Moratorium that are codified in Section 15.20.040 of the Municipal Code.
Permits to repair or rebuild existing structures (Paragraphs A and B of Section 15.20.040).
The first exception is for the maintenance of existing structures or facilities that do not increase land coverage or add to the water usage of those facilities.
The second exception is for the replacement, repair or restoration of a residential building or structure that has been damaged or destroyed due to a geologic hazard or some other hazard, such as a fire. This exception allows for the repair or replacement of such structures, provided that the new structure has the same square footage as the prior structure, is in the same general location and will not aggravate any hazardous geologic condition.
When the City Council adopted the first Urgency Ordinance that established the Moratorium in 1978, Ordinance No. 108U, that Ordinance established the exception for the repair or replacement of structures that were destroyed by fire or another casualty, provided that the land coverage and water usage were not increased. Because the first two exceptions continue that philosophy and are applicable uniformly throughout the Moratorium Area, Staff recommends that they not be subject to the urgency ordinance.
Permits to legalize existing structures (Paragraph C).
The third exception is for building permits for existing structures that were constructed prior to October 5, 1978, for which permits were not previously granted, in order to legalize such structure(s). Such permits may only be granted if the structure is brought into substantial compliance with the Uniform Building Code. This exception is rarely used. However, in case there is an older structure that needs to receive permits in order to comply with the Code, Staff recommends that this exception not be affected by the new ordinance.
The third exception raises an interesting issue about whether the City should continue to process and grant “after-the-fact” approvals for more recent projects that have been constructed but for which permits have not been issued by the City. Staff is aware of two such projects that the Code Enforcement Division had been pursuing. (There may be other situations of which Staff is not aware.) One involves a 104 square-foot addition, and the second involves an unpermitted second story addition. On the one hand, it seems prudent to issue permits for these projects because: (1) it is important to achieve compliance with the Municipal Code; (2) these structures are relatively modest additions, and (3) both homes are connected to a sewer system.
However, on the other hand, such a policy could encourage property owners within the Moratorium Area simply to violate the Code in order to get their project approved by the City. As an alternative, the urgency ordinance could be limited to permitting illegal structures that were completed prior to January 1, 2006 (or any other date that is selected by the City Council). Staff is seeking direction from the City Council regarding this issue.
Permits for City or RDA projects (Paragraphs D and E).
The fourth type of exception is for an environmental assessment or EIR for a project as to which the City or the Redevelopment Agency is the applicant.
The fifth exception is for projects that are to be performed or constructed by the City or the RDA to mitigate a landslide or enhance land stability.
Because of the important public purpose of protecting public safety by enhancing land stability or mitigating a landslide, Staff recommends that these exceptions continue to be effective and not be subject to the urgency ordinance.
Permits for remedial grading or geologic investigation permits (Paragraphs F and G).
The sixth exception is for remedial grading permits to correct landslide problems or to enhance public safety pursuant to a grading permit that is issued by the City. Unlike the last exception, private individuals can use this type of exception to correct conditions on their properties. Because this type of exception also promotes public safety, only allows remedial grading, and does not allow additional development, Staff recommends that it not be subject to the urgency ordinance.
Permits for new additions to existing residential structures not exceeding 600 square feet in size; permits for new structures or additions in the Blue Area, and permits for new attached or detached garages not exceeding 600 square feet in size. (Paragraphs H, K and L.)
These are the exception categories about which the majority of the Members of the City Council gave direction to Staff at the last City Council meeting. Based on that direction, these categories should be subject to the urgency ordinance.
Submittal of a lot line adjustment application (Paragraph J).
On rare occasions the City has received a lot line adjustment application that simply adjusts a lot line between two parcels and does not involve new development. Accordingly, Staff recommends that this exception continue to be effective and not be subject to the urgency ordinance.
Applications for permits for very minor uses or projects (Paragraphs I, M and N).
Paragraph I allows the construction of temporary minor non-residential structures that are less than 120 square feet in size, that are not attached to a foundation, and are not to be used for habitable purposes. If they have plumbing fixtures, they must be connected to a sewer system; otherwise they cannot have plumbing fixtures. Examples are storage sheds and play houses. A geology report or site investigation by the City Geologist is required for projects that are processed under this exception. Because the use of this exception is so restricted, Staff recommends that it continue to be effective and not be subject to the urgency ordinance.
Paragraph M involves the applications for planning approval of structures and uses on properties that “are ancillary to the primary use of the lot or parcel, where there is no possibility of any adverse impact on soil stability.” Examples include special use permits “for minor, temporary uses and events; fence wall and hedge permits that do not involve grading or the construction of retaining walls; permits for the keeping of large domestic and exotic animals; conditional use permits for establishment of a use or activity at or on
Paragraph N creates an exception for minor projects on land that is already developed with a residential structure, “which do not involve new habitable space, which cannot be used as a gathering space and viewing area, and which do not constitute lot coverage.”
are approved by Staff over the counter, such as the addition of a dormer window, air conditioning unit, garden window, skylight, etc.
Because each of these categories is so constrained and only involves very minor projects that will not affect land stability, Staff recommends that these exceptions continue to be effective and not be subject to the urgency ordinance.
Permits to allow existing structures with plumbing fixtures to be attached to an operational sewer system (Paragraph O).
This category does not allow new development but increases land stability by allowing existing structures with functional plumbing to be attached to a sewer system. Accordingly, Staff recommends that this exception continue to be effective and not be subject to the urgency ordinance.
Projects that are under construction.
There are several projects that have received Moratorium Exception permits that currently are under construction. Staff recommends that those projects be exempt from the Urgency Ordinance because they have a building permit and already have commenced construction. If the City were to issue a stop work order for those projects, the property owners undoubtedly would file lawsuits against the City and assert that they have a “vested right” to complete their project because they commenced construction of their project and expended substantial sums in construction costs in reliance on the building permit that was issued by the City. California courts have held that similar facts conferred vested rights on property owners. (See, Avco Community Developers, Inc. v. South Coast Regional Commission, 17 Cal.3d 785 (1976).
Projects that have not received building permits and are not yet under construction.
Staff is aware of six projects that are in the planning process but have not yet been issued building permits to begin construction. One of these projects are in the Blue Area, and five are in the Red Area. They are:
--------------, which is a demolition and reconstruction of a new single family residence and is currently in plan check in the Building and Safety Department.
86 Yacht Harbor Drive (Peusich), which is an addition to an existing home and the construction of a deck, that is in plan check in the Building and Safety Department.
38 Cinnamon Lane (Siegel/Friend), which is a replacement of a single family residence that was demolished with additional floor area. That application currently is not complete.
31 Narcissa Drive (De La Tore), which is a proposal to add a 596 square-foot addition accompanied by 28 cubic yards of grading. That application currently is not complete.
7 Plumtree Road (Tarsha), which is a proposal to replace an existing 600 square-foot barn. This application has been approved, but the building permit has not been issued.
1 Cherryhill Lane (Shahin), which is a proposal to replace an existing shed on a vacant lot. That application currently is not complete.
Because these projects have not received a building permit, they do not have a vested right to start and complete the construction. As such, depending upon the City Council’s determination about the various exemptions that are discussed above, they may not be able to proceed with their developments.
There also are two property owners that were in the planning process when the City Council established the initial temporary moratorium in November 2005. One is the property owner at 4394 Dauntless Drive (Matura), who was seeking approval of a second story addition by the Planning Commission. The other is the property owner at 4380 Dauntless Drive (Arregoces) who was seeking a Landslide Moratorium Exception Permit for first and second story additions. Both applications were denied without prejudice after the temporary moratorium was enacted on November 15, 2005. These projects also do not have a vested right to proceed with development.
Staff recommends that the City Council review this report set the upcoming study session. Suggested dates are Saturday May 13th, Tuesday May 30th, Saturday June 3rd, and Saturday June 10th. Staff also recommends that the Council give direction to Staff about which Moratorium Exceptions the Council would like to place on hold while the Landslide Moratorium Area is being studied and adopt an Urgency Ordinance that will preserve the status quo pending the upcoming study session.
Joel Rojas, AICP Carol Lynch
SUGGESTED LANDSLIDE WORKSHOP AGENDA TOPICS
- Presentation of history of landslide moratorium,
- Establishment, purpose and powers of Redevelopment Agency
- Establishment, purpose and powers of Geologic Hazard Abatement Districts
- Explanation of City geologic review process for proposed developments
- Explanation and application of “factor of safety” and discussion of factor of safety versus rate of movement
- Review of Perry Ehlig memorandum describing various “zones’ within the moratorium area.
- Recommendations for future studies and monitoring within the landslide
- Presentations by independent geologists and homeowners/property owners or their representatives
- Remarks by the City “panel of geologists/geotechnical engineers”
Issues to be addressed by Council:
- Are there scientific/geologic distinctions that can be made between various “zones” in the landslide?