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HomeMy WebLinkAbout08/25/1992 Minutes - Adj. Regular MeetingMINUTES OF THE CITY COUNCIL ADJOURNED REGULAR MEETING OF THE CITY COUNCIL AUGUST 25, 1992 1. CALL TO ORDER: M/Kim called the meeting to order at 7:00 p.m. in the Council Chambers, AQMD Auditorium, 21865 E. Copley Dr. PLEDGE OF ALLEGIANCE: The audience was led in the Pledge of Allegiance by M/Kim. ROLL CALL: Mayor Kim, Councilmen Forbing, Miller and Werner. Mayor Pro Tem Papen was excused. Also present were James DeStefano, Community Development Director; Andrew V. Arczynski, City Attorney; Bob Rose, Director of Community Services and Lynda Burgess, City Clerk. Acting City Manager Terrence L. Belanger was excused. RECESS TO CLOSED SESSION: CA/Arczynski requested that M/Kim recess the meeting for an Executive Session prior to commencing the meeting pursuant to the provisions of California Government Code Section 54956.9c for the Council to discuss whether or not to initiate litigation. M/Kim recessed the meeting at 7:05 p.m. RECONVENE: M/Kim reconvened the meeting at — 7:20 p.m. CA/Arczynski reported that the City Council took no action during the Closed Session. 2. OLD BUSINESS: 2.1 GENERAL PLAN REFERENDUM - STATUS OF PERMIT ISSUANCE - CA/Arczynski reported that a Referendum petition had been filed with the City Clerk seeking to place the General Plan on the ballot for determination by the public. The validity of the petition signatures and all other technical requirements had yet to be determined by the Clerk's Office but determination was anticipated soon. The effect of the petition was to suspend the operative effect of the General Plan leaving the City with no Plan and no authority to take discretionary action with respect to proposals presented to the City, i.e., tract maps or other types of projects. Government Code Section 65567, dealing with General plans states "No building permit may be issued, no zoning map, no subdivision map and no open space zoning ordinance adopted, unless the proposed construction, subdivision or ordinance is consistent with the local open space plan." By definition, the City has no Open Space Plan; therefore, those kinds of projects cannot be found to be consistent with something that does not exist. If a literal approach to the Government Code were used, it would mean that the homeowner whose roof has been damaged, whose water heater exploded, or whose backyard is falling into his neighbor's yard would be unable to pull a permit. It was staff's recommendation that the City adopt a policy during the interim period when the validity of the General Plan process is undergoing scrutiny, that health AUGUST 25, 1992 PAGE 2 and safety types of permits be issued by the City. This would include permits for roofs needing replacement or repair, water heater replacement, bad sewer line replacement, etc. and completion of projects previously under way. Although a Court could take a literal interpretation of the statute, it was staff's opinion that the Court would likely rule in favor of the City on health and safety reasons; however, there is no guarantee. With respect to the issuance of other kinds of permit applications such as subdivision requests, requests for lot splits, lot consolidations, requests for building new structures where none exist presently, grading permits, oak tree permits, issues of a more or less discretionary nature, it was the opinion that the Court would overturn those permits. The City is subject to litigation from all sides of the spectrum, but it was felt that the safest, prudent and practical approach is to permit the issuance of building permits, plumbing permits and related entitlements for those types of developments that need to continue to be processed for repair, reconstruction, rehabilitation, remodeling of existing structures and code enforcement kinds of things. In regard to permits for patio covers, pools, spas, room additions, etc. in excess of those presently within the -- envelope structures, it was believed that the Court would hold that no permit should be issued. C/Werner asked if the planning review process would continue and what would happen to those projects granted discretionary approval. CA/Arczynski stated that in regard to projects presently in the pipeline, it is difficult for staff to adequately analyze and review them since there is no General Plan to refer to. Staff will not stop working with applicants, but their projects will not come up for hearings by the Planning Commission for approval. With regard to those projects presently under construction, there is no answer, but it is felt that the Court would uphold issuance of a permit. If a person has discretionary approval, but has not yet pulled a building permit, the recommendation would be to not issue the permit. In regard to C/Miller's question as to whether a permit would be valid if someone had previously pulled a permit but construction had not begun, CA/Arczynski stated that it would be recommended that the permit be withdrawn. In response to C/Forbing's question as to whether tenant — improvements in a retail strip center would be permitted, CA/Arczynski stated that it would be based on the same reasons used for a partially constructed home or structure. He further stated that there is a substantial risk in going forward with a limited amount of permits issued knowing that the statute states "no permits." AUGUST 25, 1992 PAGE 3 M/Kim stated that State Law allows the General Plan to be amended four times a year and that if anyone disagreed with the Plan, Council could amend the section in disagreement without the filing of a referendum. C/Miller stated that the Council cannot amend the land use designation for Tonner Canyon because it was zoned Agricultural which means that houses cannot be built on it. In addition, Tonner Canyon is only in the City's Sphere of Influence, not within the city limits. with regard to C/Forbing's question, CA/Arczynski stated that the State Constitution provides the right of referendum with regard to legislative acts and courts have held that the adoption of a General Plan, Element or amendment is a legislative act. Since there is no process for conducting referenda on General Plan approvals, which by law are done by Resolution and, therefore under case law are required to follow the general guidelines applicable to the conduct of a referendum on an ordinance. The law says that if a specific number of signatures are filed on a petition on a prima facie basis, it suspends the operative effect of the action that is being subjected to referendum. The City Clerk has a detailed, lengthy analysis to conduct and will determine within the next ten days to two weeks whether or not the referendum petitions submitted meet the requirements of law. If they do not, the General Plan will be again be in effect. In response to C/Forbing's question as to whether the City can eliminate the need for a special election, CA/Arczynski answered that an election is required by the Constitution and by the State Elections Code. The only thing the Council can do is to set the election date for as early as possible not less than 88 days after the petition has been certified. He explained that a Public Hearing would be scheduled for September 1, 1992 to consider requesting the State Office of Planning and Research to again extend the City's General Plan. Regarding questions concerning the effect of the referendum should the voters support it during an election, CA/ Arczynski stated that preparation of a new General Plan would need to begin as soon as possible. Statutes indicate that the Council may not adopt within one year a document that is substantially similar to the one subjected to referendum and successfully voted on by the public. This would mean waiting a minimum of one year from the date of the vote, due to the fact that the majority of the General Plan is acceptable to the public. Sherry Rogers, resident, asked how the referendum will affect South Pointe Middle School. CA/Arczynski stated that school districts are not AUGUST 25, 1992 PAGE 4 necessarily required to ask the city for approval with regard to instructional facilities and alike. They are, however, required to obtain City approval for grading activities but may choose to ignore the City's grading standards and proceed with grading. However, if this is done, all responsibility and liability regarding the grading would belong to the school district. Mrs. Rogers further stated that she was outraged that the petition was presented the way it was. Her husband signed the petition based on the fact that he had been told that thousands of homes would be built in Tonner Canyon unless enough signatures were put on the petition. Bart Porter, owner's representative for Country Hills Towne Center, stated that a conditional use permit had been approved in February or March for the Center and asked if CUP's are subject to referendum. He stated that the grocery store in the center is currently involved in a million dollar refurbishment of the interior and exterior remodeling is awaiting design review. Further, a restaurant has indicated an interest in moving into the Center; however, they may withdraw their interest if they cannot build. Clair Harmony, 24139 Afamado Ln., asked that the city attorney release a full and complete legal opinion for review, including citing of codes, case history and a clear delineation of legal opinion. He further suggested that the Council get a second opinion to do their best to meet the public interest and provide for the general health and welfare of the City. Fred Janz, resident, stated that his daughter had signed the petition based on the fact that she had been told it was to stop building in Tonner Canyon and had nothing to do with the General Plan and felt that the referendum should be thrown out due to the misleading information used. Lydia Plunk spoke in opposition to the referendum. Laura Zingg, 23675 Bower Cascade, stated that she is in the process of adding a second floor to her home to coincide with the replacement of the roof and requested an opinion whether or not she could proceed with the project at the time. Greg Hummel, 23239 Ironhorse Canyon Rd., stated that he was a member of the General Plan Advisory Committee and was in opposition to the referendum and stated that the objections accurately reflect what the General Plan says. Thomas Nicholson stated that he had applied for a permit for construction of a tennis court on private property, AUGUST 25, 1992 PAGE 5 but the permit was denied. He further stated that during the previous week he had spoken with the staff and was told that plans had been reviewed and the permits were ready to be pulled, however, on Thursday when he went to pull the permits he was denied. He stated that it was his opinion that permits should be given for pools, spas and tennis courts. He further felt that although the City Attorney has stated that the Council should only issue permits for health and safety issues, the City should take a risk and issue other permits. Max Maxwell, 3211 Bent Twig Ln., proponent of the referendum, spoke on why the petition was circulated and indicated that he had heard that there is a proposed 300+ housing project in the Sandstone Canyon area by Arciero and REM. David Craig, 227 N. Pintado Ln., stated that when he was circulating the referendum petition, he was told that the General Plan is deceiving. He requested clarification of the "Agricultural" designation. Charles Copp stated that he currently had a project pending and that he felt that the referendum petition was foolish. Bob Burton, 1200 S. Diamond Bar Blvd., real estate agent, stated that he has been working with Burger King to construct a restaurant by D.B. Honda and that due to this petition, he could lose the restaurant. He further indicated that the Council should move forward and ignore the petition. Bob Buchanan, 23721 Monument, stated that he signed the petition, but now feels that he was duped into it, as he thought he was signing a petition in regard to a project in Tonner Canyon. If he had known it would stop the General Plan he would not have signed it. He then asked what the homeowners, rights are if the General Plan is passed and they disagree with any one aspect of the plan. Curtis Malins, 3810 Locust St., Chino, stated that he is a pool contractor who has submitted plans currently awaiting plan check and that he had a crew scheduled for this week to begin construction of a swimming pool but due to the petition he is unable to get permits and therefore his employees are unable to work. �— Kathleen Wong, 828 Del Sol Ln., stated that the referendum was not an attempt to deceive anyone and that Mr. Miller is wrong for saying that the circulators lied. Red Calkins, 240 Eagle Nest Dr., stated that he had been approached to sign the petition and that no one ever asked if he was a registered voter nor did they take the AUGUST 25, 1992 PAGE 6 time to explain anything to him. He further stated that he is supportive of the General Plan. Bill Tinsman, resident, offered to show the video tapes that he has shown people asking for Council to listen to their requests. Dan Buffington, 2605 Indian Creek, stated that the Council was elected to do what is best for the City and asked that they do what is best. Dave Heaps, 1374 Rolling Knoll Rd., stated that, due to health problems, he is installing a pool in his home but due to the referendum, this project will have to be put on hold. He asked that the Council find a way around this dilemma. Ken Anderson, resident, stated that development in his area has caused an increase in traffic accidents and that the petition had nothing to do with Tonner Canyon but with life here in Diamond Bar. Mike Bennett, representing a small developer with a permit pending, asked Council to differentiate between -- large housing developments and the impact of issuing a permit for a pad in a mature shopping center. Jack Kowtowski, 1856 Kiowa Crest, stated that he wants to save Tonner Canyon and Diamond Bar. He further stated that he has a problem with a retaining wall above his home and doesn't want to see anyone else have a problem like his. Eileen Ansari, 1823 Cliffbranch, stated that she signed the petition because of the transportation corridor and that she wants to keep the City a green area. She presented photographs of the problems experienced by Mr. Kowtowski as well as other local problems. Bill Gross, 21637 High Bluff Rd., stated that he was concerned for the City and that the Council should be blamed for the problems that have arisen. He then went on to discuss the reasons for the petition. Frank Piermarini, 2559 Wagon Train, suggested that the Council allow staff to give permits to those who wish to build pools, etc., and argue the other points out later. With no further comments offered, M/Kim closed Public Comment. RECESS: M/Kim recessed the meeting at 9:02 p.m. RECONVENE: M/Kim reconvened the meeting at 9:12 p.m. AUGUST 25, 1992 PAGE 7 2.1 GENERAL PLAN REFERENDUM - STATUS OF PERMIT ISSUANCE (Cont'd.) - CA/Arczynski recommended that Council direct staff to issue limited building permits for certain types of improvements to minimize the City's risk in the event of litigation. He further stated that this process should continue until review of the Referendum petitions, as well as the upcoming request for extension, has been completed. If the Referendum is certified and placed on the ballot, then the limited permit issuance will continue until an election takes place. In response to M/Kim's question regarding the City obtaining a second legal opinion, CA/Arczynski stated that the Council is free to obtain as many opinions as they feel necessary but that he previously consulted with a large variety of sources on this matter in addition to speaking with the Office of Planning and Research. The Government Code Section in question is 65567 and there is no case law interpreting this particular section. Further, issues under the Elections Code are clear that the filing of a Referendum suspends the General Plan. At the request of C/Werner, CA/Arczynski explained that the City can begin work on the preparation of an Open Space Element; however, that process could take much longer than the process currently under discussion. The Open Space Element would have to be substantially different than that contained within the current General Plan. CDD/DeStefano further added that preparation and adoption of an Open Space Element could take between three to six months, depending on what the plan is, how it is received and how it is brought through the public process prior to Planning Commission review and City Council adoption. C/Miller suggested that staff be directed to look into the matter for further discussion on September 1st and that Council accept staff's recommendation so that something can be done immediately. C/Forbing asked for a consensus of the Council to approve the City Attorney's recommendation to issue permits for projects within existing structures that do not interfere with open space. He pointed out that at the next meeting, Council will consider approval of an application to request an extension of the General Plan from the State. In response to C/Werner's question as to the City's risk in issuing permits for pools, tennis courts, etc. on existing lots, CA/Arczynski explained that there are two degrees of risk involved: 1) The risk that someone would file a lawsuit over issuing a building permit to install a new roof is unlikely, but if someone did, the Court AUGUST 25, 1992 PAGE 8 would probably uphold the permit; 2) the risk increases if permits are issued for projects outside the envelope of existing structures such as grading, swimming pools and tennis courts. CDD/DeStefano, responding to M/Kim's question about applying pressure to the State to grant an extension, stated that the State has never been requested to deal with an issue like this before. The State previously issued an extension in February 1992, the City complied with the State's conditions and requirements and has adopted a General Plan. The issue is that the effective use of the General Plan has been suspended as of August 5th. Staff will be asking for an extension of time on a document no longer in use --the old General Plan prepared by the County years ago. It is unknown what the State will do but whatever happens will set a precedent for all cities. C/Forbing moved, seconded by C/Werner to accept the City Attorney's recommendation to issue permits within the building envelope and direct staff to make a recommendation at the September 1, 1992 meeting to request the State to extend the previous General Plan. In addition, direct staff to prepare an updated report for the September 15, 1992 meeting to consider expanding the scope of permits, if necessary, based on the response from the State. Further, direct staff to explore more options to keep business operating as efficiently as possible. Following discussion, motion carried by the following Roll Call vote: AYES: COUNCILMEN - Forbing, Miller, Werner NOES: COUNCILMEN - M/Kim ABSENT: COUNCILMEN - MPT/Papen CA/Arczynski explained that in regard to the issue raised by Mrs. Rogers, it would be beyond the scope of the Council's direction to issue wholesale grading permits, but that staff will work with the school district to the extent possible, short of issuing permits; however, the school district does have alternatives. In regard to Mr. Porter's inquiry regarding the Conditional Use Permit issued in February or March for the Country Hills Towne Center, CA/Arczynski explained that he was not aware of the full extent,of the CUP but if it deals with intensifying uses within the envelope, then it would be permitted to continue. If it is to build an entirely new structure, then it would not be permitted. In regard to the Alpha Beta's renovation, to the extent no discretionary approvals are needed, then it would be acceptable. In regard to the new restaurant, AUGUST 25, 1992 PAGE 9 staff will work with the applicant to the extent possible, but no permits will be issued. Regarding Mrs. Zingg's concern over the addition to her home in conjunction with a new roof, CA/Arczynski stated that the new roof would be acceptable but the room addition would not. In response to Mr. Harmony's statement, CA/Arczynski explained that the Council could draft an entirely new General Plan but that would not deal with the current problem of the Referendum, a process which cannot be stopped at this point. In regard to Mr. Janz' comment that the Referendum should be invalidated, CA/Arczynski explained that he is sorry that Mr. Janz' daughter signed the petition under what she now considers false pretenses, but once a petition is filed, a signature cannot be removed. He recommended persons concerned about the way in which petitions were circulated should put their concerns in writing to the City Clerk. In regard to the issue over construction of tennis courts, CA/Arczynski reported that permits for tennis courts cannot be issued at this time. As to Mr. Maxwell's comments regarding approval of the Diamond Bar Associates' project in "The Country" prior to the adoption of the General Plan, CA/Arczynski explained that the project was filed as a vesting map long before the General Plan process began and State law clearly authorizes the developer to proceed. Regarding discussion concerning tax assessments on all Diamond Bar residents for a road in Tonner Canyon Road, CA/Arczynski stated that no general tax assessment could be levied; however, a benefit assessment district could be created to assess only those persons directly benefiting from such improvements and that those persons would be given notice of a hearing prior to any assessment being levied. Regarding Mr. Craig's comment that the General Plan is deceptive in that the agricultural zoning for Tonner Canyon would allow cattle, CA/Arczynski stated that under the Constitution and State law, an individual owning a piece of property has the right to some beneficial use of —' it or the government must buy the land. Diamond Bar is not in a position to buy Tonner Canyon. The agricultural designation is what has been in place by the County for a long time and the Council's decision to continue that designation is merely to maintain the status quo. CDD/DeStefano further pointed out that the Council made :.111,< ::4 AUGUST 25, 1992 PAGE 10 it very clear when discussing the Land Use Element of the General Plan, after receiving significant public testimony, that the Planning Commission recommendation to develop a Specific Plan to allow residential and commercial development was not in the best interests of the City. The Council wanted the area designated agricultural to provide only those land uses which are currently permitted. The agricultural designation allows for cattle grazing, commercial recreation and open space. Regarding the transportation corridor, CDD/DeStefano stated that the Circulation Element indicates the Possibility of a future transportation corridor. The section says that the City will participate in local and regional transportation related planning and decision making and identify a transportation corridor through Tonner Canyon. It further states that the environmental impacts of transportation facilities within the corridor must be minimized and benefit the City. The City will further require that any proposed transportation facilities be explicitly demonstrated as acceptable to the City. Regarding Mr. Cobb's comments, CA/Arczynski stated that his project will continue to be reviewed and staff will work with the applicant, but no permit will be issued at this time. In regard to Mr. Tinsman' s comments regarding a proposed project in Sandstone Canyon, CDD/DeStefano explained that throughout the General Plan process, there was significant opportunity for community input. The Land Use Map was transmitted in its draft state as of May 26, 1992 to all businesses and residents in the City. At the time the Planning Commission reviewed the General Plan, they reviewed land use changes requested by approximately twelve developers and development of Sandstone Canyon was included. The Commission recommended that the Council consider some form of development within the Canyon. Staff has received an application for Sandstone Canyon for a planned development in the area and the project has a lengthy process to go through prior to being considered at the public level. Regarding Mr. Anderson's comments, CDD/DeStefano explained that most of the development of the Country Hills Towne Center grew out of the County's development policies. It appears as though removal of the carbon deposits in the area near Fountain Springs and D.H. Blvd. is due to the fact that a gas station was previously located there. Staff will look into the matter to ascertain whether the conditions of approval are being complied with. Regarding Mr. Kowtowski's concerns about the residence AUGUST 25, 1992 PAGE 11 constructed right above his own, CDD/DeStefano stated that shortly after C/Miller was elected, he and C/Miller researched the matter to determine what permits were issued and which were not. Questions raised by Mr. Kowtowski need further staff review and he recommended that staff be directed to undertake an analysis of the entire permit process for homes being proposed or under construction. He further suggested that the concerns raised by Mrs. Ansari be dealt with similarly. 3. ANNOUNCEMENTS: None offered. 4. ADJOURNMENT: With no further business to conduct, M/Kim adjourned the meeting at 10:18 p.m. LYNDA BURGE68 City. -Clerk ATTEST!