HomeMy WebLinkAbout03/06/1995 Minutes - Special MeetingMINUTES OF THE CITY COUNCIL
SPECIAL MEETING OF THE CITY OF DIAMOND BAR
MARCH 6, 1995
1. CALL TO ORDER: Mayor Papen called the meeting
to order at 6:12 p.m. at the South Coast AQMD Auditorium,
21865 East Copley Drive, Diamond Bar, California.
PLEDGE OF ALLEGIANCE: The audience was led in the
Pledge of Allegiance by M/Papen.
ROLL CALL: Mayor Papen, Mayor Pro Tem
Werner, Council Members Harmony and Miller. Council
Member Ansari was excused.
Also present were Terrence L. Belanger, City Manager;
Michael Montgomery, Interim City Attorney; James
DeStefano, Community Development Director and Tommye
Cribbins, Deputy City Clerk.
3. PUBLIC HEARING:
3.1 ADOPTION OF THE GENERAL PLAN
LAND USE ELEMENT:
CDD/DeStefano suggested that the Council consider
appropriate designations for the 3,600 acre Sphere of
Influence. The Boy Scouts own about 3,200 acres of that
property and are looking for a designation of Specific
Plan that would allow for uses compatible with their
existing uses of the property and the zoning of the
property which is Agriculture. Zoning of the property
permits one unit per two acres of land. Shell Oil owns
about 350 acres and they are seeking a designation simil-
ar to the Boy Scouts for similar purposes. Other
property owners in the Sphere have, not been in
communication with the City for many years. They have
similarly situated property adjacent to or surrounded by
the other large landowners and would presumably utilize
a similar designation to whatever is decided upon for the
Boy Scouts and for Shell Oil.
Tom Kolin, Chief Financial Officer, Boy Scouts of
America, challenged the recommendation of one dwelling
unit per 40 acres. The Boy Scouts have always been a
good neighbor to D.B. and have requested very little from
the City. He felt they were ambushed by the City at the
last meeting because they believed staff would recommend
a density consistent with the County's Agricultural
Zoning and density of one unit per two acres. The County
zoning has applied for many years. At the present time,
the Boy Scouts have no plans for the property other than
as a scout facility. There is no rational basis for
jumping from one unit per two acres to one unit per 40
MARCH 6, 1995 PAGE 2
acres. This kind of downzoning strikes the Boy Scouts as
arbitrary and unjustified and damaging to the Boy Scout's
assets. He asked that to be fair to the Boy Scouts, the
Council should maintain the County standard for density
of one unit per two acres. Anything more restrictive has
no logical or legal justification. This is especially
true in light of the fact that any future development on
the property would require a Specific Plan which would,
in turn, require public hearings, County input, community
input and environmental safeguards before adaptation.
M/Papen asked Mr. Kolin if it would be the intent of the
Boy Scouts to cluster any development in the least
sensitive area of their property.
Mr. Kolin responded that in 1988, the So. Calif. Golf
Assoc., another non-profit organization, requested to
lease a portion of the Boy Scout property in order to
build the SCGA headquarters building and two golf
courses. The Scouts approved this project on the basis
of retention of the land and because the SCGA is a non-
profit organization which would clear the Boy Scouts of
any unrelated business income. In addition, it seemed a
perfect use of the property to allow the Scouts to
collect rent and still own the land. This is the type of
arrangement the Scouts would like one day to enter into.
There has never been discussion of residential building
or development of this property. The only assets held by
the Scouts is cash in the bank and the land owned and
Firestone is the Scout's third largest single land
holding in the U.S. In order to continue to hold the
land, the Scouts must consider all options.
C/Harmony asked staff how they arrived at the one unit
per 40 acres.
CDD/DeStefano responded that the General Plan consultant
identified to the Council an issue within the Land Use
Element that certain Land Use classifications needed an
intensity of development or density of development
attached to the classification title. An indication was
made that such a classification was needed for the Sphere
of Influence properties and the Agricultural Land Use
specifically. Staff recommended a density of one unit per �-
40 acres based upon case law and actions of other cities
with similar issues of large expanses of vacant land that
may be suitable for development in the future and where
there are currently no development plans contemplated.
As previously stated, this is used by the City of Chino
MARCH 6, 1995 PAGE 3
Hills as a classification for their Butterfield Ranch
property as well as their portion of Tres Hermanos. The
number was suggested to the Council as part of a range of
5 to 40 acres by the General Plan consultant and it was
recommended to the Council in terms of one unit to 40
acres for the Boy Scout property and the rest of the
Sphere of Influence because there are no current plans
under consideration for these properties. For several
years, staff recommended a Specific Plan classification
for the same property which is a designation that would
lead to a more formalized master plan of land use
allowing for a much broader range of uses as may be
deemed feasible and appropriate at some future date.
Responding to M/Papen, ICA/Montgomery stated that in the
Terminals Equipment Co. case, San Francisco, 1990, where
the court stated that "in every case where a landowner
seeks compensation for burdensome regulation of his/her
property, the standard remains whether the regulations in
issue have deprived the landowner of all use of the
property. When the claim is made that the regulation has
significantly diminished the property value, the focus of
the inquiries on the uses of the property which remain,
plaintiff cannot contend he was denied all use of the
property. He was neither deprived of his right to
exclude others from his land nor denied the right to sell
the property." A General Plan designation is not to be
confused with a downzoning. They are separate and
distinct. The Supreme Court already held that the
designation by General Plan does not lead to a
compensatory claim. The California Supreme Court recently
held that, in order for a party to claim that he/she
must, within the time allowed, have the ordinance
described as confiscatory and unreasonable and then and
only then, may they file an action for damages. The
procedure has been perceived as of such a disparity in
favor of the public agency that a bill has been
introduced in the House of Representatives that would
provide compensation for landowners in the event that
their property is downsized or effectively taken (one
unit per 40, one unit per 60). He believed the Boy
Scout's concerns may be premature because, in any event,
they will need to submit a planned development. In that
type of terrain there is going to be concentration,
planned unit, shifting of entitlements, etc. He indicated
the only case he is aware of where damages were awarded
is the North Carolina case where the City took the lots
and left no use of the property. At the current time,
there is not a taking case that protects the landowner
MARCH 6, 1995 PAGE 4
from the discretion of the public agency in zoning the
property so long as a reasonable use remains. When the
Boy Scouts decide that they need to make an enterprise
use of their property and come before the City with the
permit they desire there will be something to test. He
felt the Boy Scouts perceive damages that are not there
and a designation of Planned Development might satisfy
their needs and have the same legal effect.
M/Papen asked if the Council designates the Boy Scout
property Specific Plan in the General Plan and did not
designate the property Agricultural/Specific Plan, would
a density designation be needed.
Mr. Cotton stated that the Specific Plan is an overlay
designation and Agricultural is a Land Use designation.
Responding to M/Papen, CDD/DeStefano stated that the
County's designation for the Boy Scout's property is A2-2
which allows for one unit of every two acres of property.
MPT/We,rner stated that the Specific Plan overlay is not
an overlay designation so much as it is a planning and
zoning tool. He recommended that the Council insert a
Specific Plan requirement under the Agricultural Land Use
designation that upon a proposal to annex to the City,
that the property be Specific Plan with a presentation of
a complete package at the time of an annexation
application which would go through the public hearing
process.
Responding to M/Papen, Mr. Hughes, Shell Oil, stated that
current zoning under the County is subject to broad
interpretation. Part of the property has two
designations, AG and AG/SP and it would follow that the
property would carry an A2-2 designation. Shell proposed
that the Council assign a Specific Plan designation over
the entire property to be consistent with the Boy Scouts
designation.
Max Maxwell, 3211 Bent Twig Ln., favored an Agricultural
designation for the Boy Scout property.
Responding to Mr. Maxwell, MPT/Werner stated his use of
the term annexing the Boy Scout property to the City is
technically incorrect. In 1992, subsequent to
incorporation, the City petitioned the Local Agency
Formation Commission to establish a Sphere of Influence.
It is not an annexation area, it is called a pre-
MARCH 6, 1995 PAGE 5
annexation area. It is important to understand that it
is not an annexation because that means it is in the
City. If it is in the Sphere of Influence, it is simply
a preliminary step to the property perhaps someday
becoming a part of D.B. It may never happen. He
clarified that the City has not annexed this property.
The significance of that fact is that the Land Use plan
has very minimal, if any, effect on the land use
jurisdiction of that property. It is under County zoning
jurisdiction today and the property is zoned A-2 and that
is how it will remain until an application is made to the
County to change that zoning or to develop under the A-2
zoning, or if the owner makes application to the City to
incorporate that property (annex) to the City. Until
that happens, the City's land use policy as it applies to
that property is almost meaningless.
Wilbur Smith stated that in all of the discussion
regarding the Sphere of Influence, no attention has been
given to the fact that this property is in the SEA area
which indicates there should be no development. In his
opinion, the posturing about the number of units per acre
is an attempt to give this area a classification which
will increase the chances for future development. He
asked if the City recognized the SEA 15 designation and
agrees with the preservation of the area within the
context of SEA 15.
Eric Stone, Darrin Dr., suggested that the property
designation for the Boy Scouts remain Agricultural.
Changes could then be dealt with at the time they occur.
Don Schad supported the Boy Scout's request to leave the
property as currently zoned.
In response to MPT/Werner, Mr. Schad stated that the
matter came before the Planning Commission and that his
position was to support the Boy Scouts and leave the
zoning as is.
M/Papen asked Mr. Schad if the discussion and vote was
limited to the Boy Scout property or the entire Sphere of
Influence.
Mr. Schad responded it was with respect to the entire
Sphere of Influence including the Boy Scouts.
MPT/Werner suggested that, in lieu of a General Plan Map
Designation of AG/SP, that with respect to the properties
MARCH 6, 1995
PAGE 6
outside the City's jurisdiction and within the Sphere of
Influence, the City designate the area AG and include
text to reflect a Land Use policy and Land Use
designation incorporating the County's Agricultural
zoning. In addition, include the following: "At such
time as these properties are proposed for annexation to
the City of Diamond Bar, that they carry with it an
application for a Specific Plan." He felt that any
decision regarding the Sphere of Influence properties
would be premature without full disclosure. In terms of
strategy within the General Plan, if the City wanted to
have the property in the City and wanted to advocate any
use, in order for the City to exercise that authority, it
would have to entice the owner to come into the City
limits. Otherwise, the property owner can simply develop
or otherwise use their properties under County
jurisdiction as they are now doing.
RECESS: M/Papen recessed the meeting at 7:05 p.m.
RECONVENE: M/Papen reconvened the meeting at 7:23 p.m.
Regarding Page I-3, 3. Sphere of Influence, MPT/Werner
suggested the following with respect to the definition of
the Sphere of Influence: "The City of Diamond Bar's
Sphere of Influence was first approved by the Los Angeles
Local Agency Formation Commission (LAFCO) on August 8,
1990 and encompasses 3,591 acres immediately south of the
City limits to the Los Angeles/Orange County border. The
sphere area includes the middle portion of Tonner Canyon,
an undeveloped northeast/southwest trending wooded
canyon, which extends beyond the City's Sphere of
Influence into Orange County to the south and San
Bernardino County to the east. Pursuant to the provision
of the Cortese/Knox Local Agency Reorganization Act, the
sphere of influence serves as an area designated as
future area to be annexed to the City. However, until
such time as the property is annexed to the City of
Diamond Bar the area remains under the jurisdiction of
Los Angeles County." Council concurred.
Referring to Page I-13 under Strategy 1.1.9, MPT/Werner
suggested: "Encourage the innovative use of land
resources and development of a variety of housing and
other development types, provide a means to coordinate
the public and private provision of services and
facilities and address the unique needs of certain lands
by recognizing Agriculture (AG) designation:
a. for large scale development areas in which
MARCH 6, 1995 PAGE 7
residential, commercial, recreational, public
facilities and other land uses may be
permitted; and,
b. large acreage property(ies) in excess of ten
(10) acres that are proposed to be annexed
.into the City."
M/Papen indicated she would like to see a Specific Plan
overlay for the Sphere of Influence properties.
MPT/Werner asked ICA/Montgomery to determine if under the
Subdivision Map Act a property owner can split off a 40
acre parcel without going through the review process.
ICA/Montgomery stated that if the Council's intent is for
one specific plan on the entire acreage, this should be
stated under the policies. If there is more than one lot
or if the owner can split off a segment of the property
and pursue a specific plan for only that portion, it
could be consistent with the General Plan.
M/Papen suggested Strategy 1.1.9 on Page I-13 be changed
to Specific Plan, incorporate two separate categories,
give the AG category to the Sphere of Influence and give
the Specific Plan category as an overlay so that on the
map, it would show AG/SP but in the Land Use designation
it is an overlay and a Land Use classification. How
could the Council guarantee that the Hillside Ordinance
and the SEA 15 conditions in the Resource Management
Element would be part of any Specific Plan.
CM/Belanger referred Council to Page I-18, Strategy
1.6.3. He suggested that the first sentence read: "At
such time as development might be proposed, require
formulation of a specific plan pursuant to the provisions
of Government Code Section 65450 for the Sphere of
Influence area that will protect its unique biological
and open space resources, while minimizing future adverse
impacts to both the human and natural environment of the
City, as well as the region ( see Strategy 1.1.4 of the
Circulation Element).
M/Papen requested that this language be incorporated on
Page I-12 and I-13 under Specific Plan. She then asked
for consensus that Strategy 1.1.10 will be Agricultural
desig-nation with the changes that MPT/Werner
articulated. Strategy 1.1.9 will be Specific Plan
overlay that would incorporate the strategies in 1.6.3 on
Page I-18 regarding the hillside and preserving open
MARCH 6, 1995 PAGE 8
space in the SEA. The Agricultural designa-tion in
Strategy 1.1.10 would be consistent with the County's
designation.
C/Harmony expressed concern about the Agricultural desig-
nation and asked if staff's recommendation of density is
being applied or whether the County's designation is.
MPT/Werner responded that the intent of the
suggestion/motion is take on a consistency with county
zoning.
C/Harmony agreed with Mr. Smith that the suggestion only
encourages development and doesn't respect the concepts
of the SEA.
C/Miller stated that Mr. Kolin was nodding affirmatively
from the audience that it was, in fact, true. Public
comment indicated a support for the Boy Scout's request.
M/Papen moved, MPT/Werner seconded to adopt MPT/Werner's
suggested language and designation changes as previously
set forth. Motion carried 3-1 by the following Roll Call
vote:
AYES: COUNCIL MEMBERS - Miller, MPT/Werner, M/Papen
NOES: COUNCIL MEMBERS - Harmony
ABSENT: COUNCIL MEMBERS - Ansari
Regarding the February 16, 1995 listing of Vacant Land
Housing Opportunity Areas, M/Papen recommended that Item
#20 be changed to RH 20 units per acre; Item #25 be
changed to RH 20 units per acre and Item #24 be changed
to RL designation (maximum three units per acre).
Responding to C/Harmony, CDD/DeStefano stated that about
five years ago a project came before the City for
approximately 10 units on the #24 property. The project
was denied by the Council. He indicated that it is a
very difficult piece to develop and perhaps three to four
units would be the maximum potential development.
M/Papen referred to her prior suggestion that two Land
Use classifications be added: Medium High Density RMH 16
and change RH from 16 to 20. Further, she recommended
reclassifying Existing Housing to be consistent with the
RMH 16 and RH 20 designation which are the Daisy
Apartments, the Windwood Condos, the Village Apartments
and the Fallcreek Condos so that the City has more than
MARCH 6, 1995 PAGE 9
one parcel in this designation.
Responding to M/Papen, CDD/DeStefano indicated the Land
Use classification on the property behind the
Congregation Church (Item #54) is Medium Density
Residential up to 12 units per acre.
M/Papen suggested that Item #54 remain as is.
MPT/Werner stated that the changes to properties that are
developed out at a density that would exceed the zoning
on a property would have difficulty obtaining financing
upon sale of the project because of the legal non-
conforming status. Reclassification of land uses to the
existing density makes practical sense.
M/Papen stated that the Planning Commission recommended
that Item #45 be changed to Commercial. The property is
located on D.B. Blvd. between Sunset Crossing and the SR
60 off -ramp and is currently zoned 25 units per acre.
Council concurred.
CDD/DeStefano stated that the Planning Commission
supported GPAC's recommendation which supported staff's
recommendation that this irregular shaped property might
be better suited for some form of limited commercial
uses. It is a difficult site to develop. Based upon its
access to the freeway, it would have very limited service
as a residential site. The commercial designation has
been consistent for a couple of General Plan versions.
M/Papen referred to Lots 1 and 61 (Item #15) which are
currently zoned two units per acre. She suggested that
these properties be reclassified Rural Residential (one
unit per acre) and put the property under the Hillside
Ordinance. All current restriction would remain with the
property.
C/Harmony stated he did not see any point in increasing
the density when it is understood there will be no
building on the property.
M/Papen responded that her suggestion decreases the
-- density by 50 percent. In response to C/Harmony, she
answered that she recommended that the existing Land Use
classification of RPD 20,000, two units per acre be
changed to Rural Residential which would be a maximum of
one unit per acre under which category the Hillside
Management Ordinance would apply. She indicated legal
MARCH 6, 1995 PAGE 10
concerns with the Open Space designation as described by
GPAC, as indicated by the Building Industry Assn. and
others, that zoning the property Open Space would
constitute a "taking" on the part of the City. While
there is a difference of opinion in this regard, she
indicated she would like to conserve as much property as
possible without declaring it Open Space which might be
construed as a taking and she does not want to put the
City in the position of being faced with lawsuits and
having to purchase the property. The City has been very
successful in consolidating densities and acquiring
permanent lands to remain in natural terrain in the City.
She was in favor of acquiring such properties through
transfer of density rights and through development
agreements. An Open Space category places the City at
high risk of lawsuits and deep bills.
MPT/Werner asked M/Papen if her motion includes the
retention of all map restrictions that now exist on the
property.
M/Papen responded "absolutely".
Responding to MPT/Werner, ICA/Montgomery stated that Lots
1 and 61 have map restrictions in favor of the public
agency and were extracted by the public agency in return
for a consolidation of density. He stated that he is
convinced after researching the law that those are called
Statutory Conservation Easements as distinguished from
Easements in Fee Easements in Grant. The difference is
that it restricts the property owner from making any use
varying from the restriction without later getting relief
from that restriction by the public agency and there is
no right to relief from that restriction. It is not
deeded to a public agency but it is in favor of the
public agency in return for the map that was given at the
time the restrictions were made. They are recorded on
the same map by which the subdivision is granted.
M/Papen asked ICA/Montgomery if her motion would remove
any of the restrictions. He stated that it would not.
C/Harmony asked if this keeps the designation of Open
Space. The Planning Commission and GPAC recommended Open
Space. He asked M/Papen if by her motion the City would
keep the designation.
MPT/Werner seconded the motion. He stated that M/Papen's
motion minimizes the risk of taking or a threat of
lawsuit on the basis of a taking.
MARCH 6, 1995
PAGE 11
C/Harmony requested staff to discuss the OS/RL
designation as envisioned by GPAC versus the Open Space
designation envisioned by the Planning Commission and how
that relates to the Mayor's recommendation of RR.
CDD/DeStefano stated that GPAC recommended that the
property be designated Open Space. A very small piece
located at the corner of Summitridge Dr. and Grand Ave.
was designated by GPAC as RL. Clearly GPAC's
recommendation to the Planning Commission was for the
site to be designated OS. That was based upon GPAC's
recommendation that properties that have the types of
language that restricts development (such as this
property) be designated with an Open Space
classification. The Planning Commission reviewed the
matter, clarified what they believed to have been an
error by GPAC and designated that RL piece as OS with the
balance of the property. The Planning Commission
forwarded GPAC's thought process that properties with
these types of map noted restrictions should be
designated as Open Space, consistent with GPAC and
Planning Commission's verbiage for Open Space. The
recommendation currently before the Council would allow
for a density of one dwelling unit per acre maximum for
this site which is about 66 to 68 acres. If the site
were to be submitted for future development
consideration, it would have to respond to the General
Plan and all of its development standards dealing with
hillside preservation, as well as responding to the
City's Hillside Management Ordinance and other ordinances
that dictate what types of development can occur on
properties with the types of slopes that this property
has.
C/Harmony stated the City is encouraging the future
development of this property.
In response to M/Papen, CDD/DeStefano responded that the
zoning for the site is RPD 20,000 2U which allows for two
units per acre. This is the zoning designation which is
different from the General Plan discussion. Regardless
of what the designation is, the property owner can always
come back for a recommended change in that designation
and always be entitled to such a request'.
C/Harmony stated that making the property comply with the
Hillside Management Ordinance also encourages
development.
MARCH 6, 1995 PAGE 12
CDD/DeStefano responded that some would argue that it is
very discouraging because it is restrictive in the sense
that it is designed to protect the environment from
development or to mimic the environment where the
development is taking place. It is designed to enhance
the environment or to replace it in a manner in which it
looked like initially.
M/Papen withdrew her motion.
Responding to M/Papen, CDD/DeStefano reported that Site
D, 28 acres off of Brea Canyon Rd. and D.B. Blvd., and
the 78 acre Brea Canyon Rd. and Pathfinder Rd. area South
Pointe property were subjects of previous discussion by
the Council with the conclusion that these two properties
should be designated Planned Development with an
underlying development intensity/ density of 3 units per
acre. The current General Plan recommended the Stone
property as Planned Development (Area #1) permitting up
to 30 dwelling units in reflecting some of the issues
related to its proximity to the freeway. Area #2, the
Bramalea properties, are the non-contiguous areas
consisting of approximately 400 vacant acres and the
palate of land uses would reflect that which has been
discussed such as a maximum of 130 dwelling units, a
minimum of 75 percent of the site being set aside as Open
Space and a two acre area located at the corner of D.B.
Blvd. and Goldrush Dr. would be developed for Public
Facility or Commercial use and encourage a clustering
concept with lot sizes that range from 6,000 to 10,000
feet. Staff felt that this responds to some of the
issues raised by Council and property owner. Planned
Development Area #3 located at Grand Ave. and Golden
Springs Dr. where Calvary Chapel is currently located and
across the street from the golf course where the proposed
hospital has been approved, is approximately 75 acres.
The mixture of uses for that location would include those
proposed by the GPAC and Planning Commission for
Commercial Retail and Office Professional uses. Planned
Development Area #4 is the WVUSD's 78 acres located west
of Brea Canyon Rd. in the South Pointe Middle School
area. Land uses would be, as outlined by the Council,
Public Facilities, a minimum of 30 percent Open Space
with a residential density of 3 units per acre. Planned
Development Area #5 would be proposed to identify the 25
acre property at Brea Canyon Road and D.B. Blvd. Land
uses appropriate for the site, as outlined by the
Council, would be to designate it five single family
units per acre. These are five areas that have been
MARCH 6, 1995
PAGE 13
under consideration for more detailed land use planning
through the tools that the Government Code and City
Ordinances provide. In concert with other goals,
objectives and strategies of this General Plan, an
overall master plan would be developed for these areas
which would be brought to the Planning Commission and
Council for public hearing review and consideration at a
future date.
MPT/Werner asked that the Council consider the SASAK
property. The City has an approved Tentative Tract Map
on the property and recommended that the Land Use
designation should be consistent with what has been
approved on the property. In addition, he asked that
Lots 1 and 61 continue to be discussed since the issue
had not been resolved.
M/Papen stated that Area #1 was designated RL.
Responding to M/Papen, CDD/DeStefano stated that the
designation is recommended by GPAC and the Planning
Commission. It is a ten acre site and is highly
encumbered by easements, slope issues, flood hazard
issues, etc. It is likely to be developed with a single
additional land use classification of single family
homes. The nature of the constraints on the site will
tend to push the development closer to the existing fire
station. It is not necessarily a strong candidate for a
planned development. If development does occur there, it
is likely to be in the form of a cluster of homes and it
is likely to be processed with a Subdivision or Tentative
Tract Map and may also include a development agreement.
The planned development does not create any significant
constraints nor any real benefit. Regarding Area #2, she
indicated that she would like to be certain that the
water tower is included in the Land Use classification.
With respect to the school district property on Brea
Canyon Rd., she wanted to be certain that Recreation use
was included. The same is true for Area #5 (Site D).
Item #8, Pantera Park, currently zoned two units per
acre, is changed to "Park". Item #9, Pantera Elementary
School site, currently zoned two units per acre, is
changed to Public Facilities (School).
Responding to M/Papen, CDD/DeStefano stated that the
intent of Items 10, 11 and 12 was that *hese were
additional development opportunities within the RPD area.
Further information indicates that they are part of
Landscape District #39 and may no longer be suitable for
development and that is why staff did not recommend their
MARCH 6, 1995
consideration.
PAGE 14
M/Papen recommended that Items 10, 11 and 12 be
designated Open Space.
CM/Belanger stated that the land is currently in the
assessment district and is privately held. The question
is whether there are any easements or any other
restrictions in favor of the City relating to designating
the 33 acres as Open Space. The City is not certain
whether there are any restrictions on these properties.
Upon further consideration, Council recommended that
Items #1, #10, #11, #12, #16, be changed to RR
designation.
Responding to M/Papen, CDD/DeStefano understood that
Items #18 and #33 are Deed Restricted Open Space
properties.
MPT/Werner asked why this application would not be
consistent for the other properties.
M/Papen responded that the other properties are map
restricted and not deed restricted.
In response to MPT/Werner, ICA/Montgomery responded that
it is a significant delineation in one respect. There is
an argument that deed restricted or General Plan
restricted Open Space requires a public hearing in order
for the restrictions to be lifted. There is another
argument that map restrictions (equitable servitudes or
conservation easements) may not require a public hearing
to be lifted.
CM/Belanger stated that the deed is a document that is
unambiguous. On its face it delineates what burdens are
going to run with the land and the property owner is
aware of those and records those burdens by deed. Map
restrictions can be expressed and they can be implied,
whereas deed restricted property is burdened and the
property owner has notice of the burden which is recorded
on the face of the deed. To be consistent with previous
approvals, the recommendation for Item #39 is a
designation of RL which would allow for three units per
acre.
M/Papen stated that Item #42, the four acres of City
property along Brea Canyon Road should be zoned
MARCH 6, 1995 PAGE 15
Commercial.
Wilbur Smith was concerned that the City ignored the
issue of Open Space based on the fact that such a
designation may be deemed a taking. There is a letter
from ICA/Montgomery contradicting this theory. The
Council should state their position with regard to the
attorney's opinion.
M/Papen responded that Area #1, 1/4 acre will remain in
its natural condition. 75% of the 400 acres of Area #7
and Area #13 will remain in open condition. The 24 acre
parcel, Area #8 is designated for a park. Area #10, a 5
1/2 acre site, Area #11, a 13 acre site and #12, a 14
acre site will not be developed. Area #15 will have 7
1/2 acres dedicated Open Space. Area #18 is 16 1/2 acres
that will not be developed. Area #33 is 54 acres that
will not be developed. Nearly 600 acres of land that has
previously not had restrictions from development that the
Council is now preserving in its natural terrain. The
alternative would be that the City would have to pay
approximately 10 million dollars to purchase these
properties. If the City can preserve the property
without having to face a challenge of "taking," having a
challenge of condemnation and without costing the
taxpayers anything, that is the charge of the Council on
behalf of the citizens.
Max Maxwell felt the issue of Open Space should be
tested. The premise of deed and map restrictions were to
keep open space. Lots 1 and 61 now propose 50 or 60
homes, yet he would like it to remain Open Space.
Regarding the Hillside Management Ordinance, if it starts
at 25%, it is worthless. If it starts at 15 & as GPAC
recommended, it will be valuable. He stated that the
people of D.B. don't want 800 acres in Tres Hermanos and
another 2,000 acres developed and leave 500 acres open
space. He felt that the City had gone beyond the point
of having a valid EIR.
C/Harmony responded that the City Attorney addressed the
issue of the 7 acres versus the 60 acres of map
restrictions on Lots 1 and 61. He asked ICA/Montgomery
if he sees map restrictions applying only to the 7 acres
or to all 60 acres. He asked staff to comment on Mr.
Maxwell's question of whether or not the City need a new
EIR.
MPT/Werner stated that while the granting of these
MARCH 6, 1995 PAGE 16
proposed designations may not go to the extent of
reducing the land use zone to the extent Mr. Maxwell
would like and to the extent that he is willing to risk
the testing procedure which means litigation, he
indicated he was taking a more conservative point of
view. He felt that what the Council proposed is to take
the current zoning on properties that in no way could
ever accomplish or achieve those densities and bring them
to a lower density and not touch the land use
restrictions that exist on those properties. It remains
to be seen sometime in the future whether the owner could
ever present a proposal that would accomplish both the
owner's objectives and the City's objectives. What Mr.
Maxwell asked for is for the City to stick its neck out
so far that it is inviting litigation through the General
Plan document. He was not interested in looking at a
test but was interested in attempting to preserve what
the City has and protecting its interest for the future.
He believed that that is being accomplished with the Land
Use Element.
Terry Birrell stated that, with respect to Lots 1 and 61,
the City Attorney cited case law going back 15 years
indicating that there would be no inverse condemnation
and yet the majority of the Council listened to a biased
opinion of BIA. The County placed those conservation
easements on the properties known as Lots 1 and 61 and
Lots 49 and 53 because of density transfers. With
respect to density transfers, the City Attorney stated
that with respect to the map restricted parcels no
"taking" occurs if each action is the result of an
agreement which includes adequate consideration, i.e. the
original cluster building permits. That seems to be
pretty clear. She saw no reason why the GPAC's
designation of map restricted properties as Open Space
could not stand and suggested that the City not be
concerned about takings because the Council has legal
opinions that there are no takings. The Council should
be concerned about what is being given to developers for
no consideration and what the City is taking from the
residents of D.B. around those areas.
MPT/Werner did not agree with Ms. Birrell's
representation. Nothing is being given to developers and �—
no restrictions are being removed. They remain with the
property and the Council is not deliberating on any
development proposals for any of the properties in
question. This is.only a General Plan Land Use policy.
With respect to all of the identified properties, the
MARCH 6, 1995 PAGE 17
current zoning will be downzoned according to the land
use policy being discussed. The current zone on
properties will be degraded, diminished, downzoned,
reduced, less than what now exists and restrictions will
remain.
C/Harmony asked MPT/Werner if the City were to avoid a
test lawsuit on a taking of land zoned open space with
the proposed designations, would he be willing to bring
back what the GPAC put into the General Plan wherein it
allows the public to vote on any lifting of map
restrictions when it comes to development projects.
MPT/Werner responded that he did not recall that issue
being discussed and he would be happy to deliberate the
subject.
M/Papen asked why the Pathfinder Homeowners Assn.
property 041 is deed restricted but it not zoned Open
Space. It is zoned Private Recreation. In addition, why
is the deed restricted open space around the Lyons
project on Pathfinder Rd. not zoned Open Space and why is
the Country Estates Park not zoned Open Space when they
are all deed restricted properties. She also asked why
the Planning Commission said that privately held
properties with a map restriction should be declared Open
Space, but privately held deed restricted property is not
zoned Open Space. She stated that private citizen's deed
restricted properties are not zoned Open Space under this
General Plan.
MPT/Werner stated that his interpretation of
ICA/Montgomery's legal opinion regarding Open Space seems
to differ from that of the speakers. He asked for
clarification with respect to taking the rights that are
prescribed under the Subdivision Map Act given to those
property owners by right and in the General Plan stating
that they will become subject to an election. However,
the City has the right, on an individual basis and in
response to a request from the property owner, to require
that one of the stipulations in granting that request go
to a vote of the people.
ICA/Montgomery responded that if the subdivider/developer
had a right to get an administrative ruling such as
removal of restriction without a vote, if it is
determined that map restrictions are not of a strength of
the Open Space Easement Act, then the City can impose a
higher requirement on that developer than the State when
MARCH 6, 1995
PAGE 18
it passed the statute. If the Council wanted to put map
restrictions and open space to a vote of the people, the
Council must first adopt that portion of the General Plan
by a vote of the people because a higher restriction
cannot be imposed.
MPT/Werner understood that, through the General Plan, the
City could not impose a requirement for an election but
the City could impose a vote of the people on a project
by project basis.
ICA/Montgomery stated that this cannot be done unless the
people adopt a General Plan and provide for that in the
General Plan.
MPT/Werner asked if the City would adopt the policy in
the form of a General Plan policy or in the form of an
ordinance. ICA/Montgomery responded that the City cannot
adopt the General Plan and require that one or more
changes in that General Plan be required to be a vote of
the people. Before a vote of the people can impose a
requirement on any provision, that portion of the General
Plan will have to be adopted by the people.
M/Papen recommended that the following properties be
designated Open Space: The 5 1/2 acres of Area #10; the
13 acres of Area #11; the 14 acres of Area #12; the 150
acres of Area #21, the 54 acres of Area #53; the 37 acres
of Area #41; and the 165 acres of Area #43. She stated
she would add the 7 1/2 acres of Lots 1 and 61 but she
did not know which 7 1/2 acres it is.
C/Harmony stated that GPAC's recommendation on Pathfinder
Homeowners Association is Open Space for Area #41.
MPT/Werner stated those would be the test areas.
A motion was made by M/Papen, seconded by MPT/Werner to
designate the following areas Open Space: #10, #11, #12,
#18, #21, #33, #41 and #43 for a total of 462 acres.
Motion carried 4-0 with the following Roll Call vote:
AYES: COUNCIL MEMBERS - Miller, MPT/Werner, M/Papen
NOES: COUNCIL MEMBERS - None
ABSENT: COUNCIL MEMBERS - Ansari
A motion was made by M/Papen, seconded by C/Miller that
Area #6 be designated Planned Developmert Area; #1, the
Stone prop-erty remain as is; the Bramalea property would
MARCH 6, 1995
PAGE 19
be Planned Development Area #2; the hospital site would
be Planned Development Area #3; the School District
property on Brea Canyon, south of the South Pointe Middle
School on Peaceful Hills Ln. would be Planned Development
Area #4; Site D would be Planned Development Area #5.
MPT/Werner referred to his February 28, 1995 memo in
which he stated that under the PD designation, he
recommended parameters to assist in defining Planned
Development as a sub -section under Strategy 1.1.8, Page
I-12. He suggested similar language for the Sycamore
Canyon Bramalea property.
M/Papen stated that 75% is preserved.
Responding to M/Papen, CDD/DeStefano stated that the Tres
Hermanos property should be designated "PD Area #1,
located within the incorporated City south of the Pomona
Freeway west of Chino Hills Parkway. This 800 plus/minus
acre vacant area is part of the larger Tres Hermanos
Ranch property spanning Grand Avenue including property
within the City of Chino Hills. Facilities appropriate
for this site should be designed based upon a -vision for
the future and not merely extend the patterns of the
past. Such facilities may include a high school and
other educational institutions, reservoir for practical
and esthetic purposes, commercial developments which are
not typical of those found in the area and a variety of
residential, churches, institutional and other uses which
are complimentary to the overall objective of having a
Master Planned area. Development within the Tres Hermanos
area should be designed so as to be a part of the Diamond
Bar community as well as compatible with adjacent lands."
Motion carried 3-1 with the following Roll Call vote:
AYES: COUNCIL MEMBERS - Miller, MPT/Werner, M/Papen
NOES: COUNCIL MEMBERS - Harmony
ABSENT: COUNCIL MEMBERS - Ansari
A motion was made by M/Papen and seconded by C/Miller
that the following sites be designated Commercial: #42
(4 acres on Brea Canyon Rd.) and #45 (5 acres on D.B.
Blvd.). Motion carried 3-1 with the following Roll Call
vote:
AYES: COUNCIL MEMBERS - Miller, MPT/Werner, M/Papen
NOES: COUNCIL MEMBERS - Harmony
ABSENT: COUNCIL MEMBERS - Ansari
MARCH 6, 1995
PAGE 20
A motion was made by M/Papen, seconded by MPT/Werner that
property #39, to be consistent with the previous
approvals, be designated RL. Motion carried 3-1 with the
following Roll Call vote:
AYES: COUNCIL MEMBERS - Miller, MPT/Werner, M/Papen
NOES: COUNCIL MEMBERS - Harmony
ABSENT: COUNCIL MEMBERS - Ansari
A motion was made by MPT/Werner, seconded by M/Papen that
property #15 be designated Open Space for the 7 1/2 acre
parcel and RR for the larger parcel with all map and deed
restrictions remaining. Motion carried 3-1 by the
following Roll Call vote:
AYES: COUNCIL MEMBERS - Miller, MPT/Werner, M/Papen
NOES: COUNCIL MEMBERS - Harmony
ABSENT: COUNCIL MEMBERS - Ansari
A motion was made by MPT/Werner, seconded by C/Miller to
approve the Land Use Element as amended and direct staff
to reconstruct the Element and make i;. available for
public review.
In response to MPT/Werner, CDD/DeStefano responded that
staff will look at the cumulative total of the changes
the Council has directed and return with an appropriate
environmental recommendation. Motion carried by the
following Roll Call vote:
AYES: COUNCIL MEMBERS - Miller, MPT/Werner, M/Papen
NOES: COUNCIL MEMBERS - Harmony
ABSENT: COUNCIL MEMBERS - Ansari
2. CONSENT CALENDAR:
2.1 APPROVAL OF MINUTES:
2.1.1
Special
Meeting
of January
31, 1995
2.1.2
Special
Meeting
of February
6, 1995
2.1.3
Special
Meeting
of February
13, 1995
2.1.4
Special
Meeting
of February
16, 1995
Motion by MPT/Werner, seconded by C/Miller to approve the
minutes as submitted. Motion carried unanimously by the
following Roll Call vote:
MARCH 6, 1995 PAGE 21
AYES: COUNCIL MEMBERS - Harmony, Miller,
MPT/Werner, M/Papen
NOES: COUNCIL MEMBERS - None
ABSENT: COUNCIL MEMBERS - Ansari
4. ANNOUNCEMENTS: None
5. ADJOURNMENT: There being no further business
to discuss, the meeting was adjourned at 9:30 p.m.
TOMMYE CRIBBINS, Deputy City Clerk
ATTEST:
Mayor
