HomeMy WebLinkAbout04/09/1973 Item #D-3CITY OF NEWPORT BEACH
Office of
CITY ATTORNEY
April 9, "1973
To: The Honorable Mayor and
Members of the City .Council 3
From: City Attorney
Subject.: Effect of Proposed.Land Use Element
and Residential Growth Limits.Com-
ponert.of the General Plan on the
Balboa Bay Club Lease
By.letter.addressed to the Mayor and City Council dated
April 4, 1973, Mr. Thomas J: O'Keefe, attorney for the Balboa
Bay Club, has recommended that the Land Use Element of the
General Plan and the Residential Growth Limits Component of
the General Plan be revised to delete those provisions which
are claimed to be in conflict with the present zoning and
existing lease agreement covering the Balboa Bay Club site.,
The purpose of this memorandum is to answer the concerns of
the Balboa Bay Club as expressed by Mr. O'Keefe.
PROPOSED LAND USE ELEMENT
The Land Use Element of'.the General Plan with reference to
the Balboa Bay Club site proposes that upon expiration of the
lease that this property is.to be converted to public marine -
oriented recreational uses as determined by a master plan to
be developed prior to the expiration.of the lease. Mr. O'Keefe
argues on behalf of the Bay. Club's management that; this con -
clusion may be prejudicial to the future best interests of the
City.
We cannot agree with Mr.. O'Keefe for the following reasons:
By law the City is required to have a General Plan con-
sisting of a statement of development policies including,diagrams
and text setting forth objectives, principles, standards, and .
plan proposals. Among the many elements required in the General
Plan is a land use element which must, among other things, desig-
nate the proposed general distribution and general location and.
extent of the uses of land-for housing, business, industry and.
recreation.
Re: Balboa Bay Club Lease -2- April 9, 1973
The Balboa.Bay.Club site is.a unique parcel of property
in that it is publicly owned and located adjacent to a public
body of water. Because of this uniqueness, it would be most
difficult to prepare detailed background comparison studies..
However, based on present trends, such as increased popula-
tion.and leisure time and a decrease in water -front recrea-
tional areas, together with existing public sentiment in favor
of maximizing physical and esthetic access to tidelands and
public water - oriented areas, the proposed use of the Balboa
Bay Club property can be justified as'a matter of present day
policy.: Of course, a future Council could amend the General
Pian,if the aforementioned trends and public sentiment change.
In summary, the' City is required by law to have.a General Plan
showing proposed future land uses throughout the City. Based
on our best knowledge, in light of the existing data as it re-
lates to this unique piece of property, we have concluded that
it is in the best interest of the City to show the .subject.
property,as a future recreational area and open .space.
RESIDENTIAL GROWTH LIMITS COMPONENT
The proposed Residential Growth Limits Component of the General
Plan provides that no further residential development be per-
mitted on the Balboa Bay Club site.
Mr. O'Keefe argues on behalf of the Bay Club's management that
this proposal is in conflict with the purpose of the lease
between the City and the Bay Club. The expressed purpose of
the lease is that the property may be.used for any purposes not
prohibited by law, other than industrial purposes. In other
words, by restricting future 'residential development, Mr. O'Keefe
contends that this violates the terms of the lease.
The law as to whether or not a city can use its police power to
avoid a contractual obligation is unclear. There is some ques-
tion in the first instance, of the City's authority to contract
away this.power. It could be argued that the City did not have
the ability to agree that the zoning would not.be changed at
some future date. As a matter of fact, the zone was changed a
couple of years ago to limit the height of future buildings on
the Bay Club property. The lease provides that the property may
be used for any purpose (other than industrial) not prohibited
by law. zoning laws by their very nature are subject to change
and what may be a permissible use under the zoning laws in exis-
tence at the time the lease was executed may be a prohibited use
in the .future if the zoning law is changed. On the other hand, .
a city could not enter into a contract and then by some arbi-
trary action frustrate the entire purpose of that agreement.
This would obviously show bad faith.
Re: Balboa Bay Club Lease -3- April 9, 1973
Should the zoning be changed on the Balboa Bay Club site, it
would be for.a valid public purpose in setting the residential
growth standards throughout the City, and not just a singling
out of. the Bay Club..
In summary, the issue.of impairment of contractual obligations
vs. the City's police power to rezone is .a difficult and.unelear:
I of the law. The City may never have intended nor may it
have been legally possible for it to bargain away the power.to.
change zoning in the public interest.,
DENNIS O'.NEIL
City Attorney
DON dm ..
cc: City Manager:
City Clerk
Community Development Department