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*NEW FILE*
ZONING ENFORCEMENT
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NOV 8 1971
CITY OF NEWPORT BEACH
OFFICE OF THE CITY MANAGER
Yy the CITY COUNCIL October 29, 1971
CITY 00 MIIAM'IOPAT YGACH
TO: MAYOR AND CITY COUNCIL
FROM: City Manager
SUBJECT: ZONING ENFORCEMENT PROCEDURES
Agenda Item /�—� 60
Several months ago the Council raised the subject of enforcement
of the zoning ordinance with respect to illegal conversion of garages and
residences and the living of two or more unrelated families in an R-1
structure. At that time I indicated the League of California Cities would
be contacted to determine if they had heard of a better procedure for
enforcing these provisions. First, let me explain the City's present
procedure.
How Addresses of Possible Occupancies are Obtained
Most addresses of possible violations are obtained from owners
complaining about their neighbors. These complaints cover zoning viola-
tions of guest rooms being occupied by second families; garages being
used as living quarters; garages being used as storaqe areas; garages
or dwellings being used for commercial purposes; living quarters in commer-
cial districts; overcrowding of rentals; and similar such violations.
Sometimes violations are turned in by the building inspection field staff.
Procedure for Correcting
When an address of a possible violation is received, an exterior
inspection is made to Verify the violation. If the violation appears
possible, an investigation of the building department records is made.
Also, the Assessor's Office is contacted for their permit history. When
the violation is verified, a letter is mailed to the owner indicating
that a violation may exist and requesting permission for an interior
inspection. The City does not reveal the source of the complaint. The
letter requesting interior inspection is mailed certified, return receipt
requested. If response is not received by the department within two weeks,
a second letter is mailed indicating the time and date that the inspection
-2-
will take place. When the building is inspected, the inspector has all of
the building department records and a copy of the Apsessor's Office floor
plan for the structure. All rooms are inspected to determine the extent
of the nonconformance. Following the inspection, e letter is mailed indi-
cating the corrections which'are to be made to the premises and ,the time
in which the corrections are to be made. This letter is also mailed certi-
fied, return receipt requested. '
When the owners make the corrections, another inspection is made to
determine if the corrections comply. If so, a final letter is mailed thank-
ing the owner for the cooperation and noting that future violations may
bring prosecution from the City Attorney. If the procedure above does not
bring compliance, the matter is turned over to the City Attorney and a com-
plaint is prepared. Court action is, however, the last resort.
With respect to the League of California Cities, they referred me to
a number of cities. These cities have responded and I have included a copy
of the letter from the City of Berkeley. It seems to be exemplary of the
comments made by the six cities contacted. Members of the Council will note
that Berkeley is experiencing the same type of problems reported in Newport
Beach. I believe this practice, or problem, is common in all municipalities.
Hopefully, the attention given this problem by the City Council will re-emphasize
the importance of enforcement by the staff. The new Community Development
Director will give added review to this area and if modifications are required,
the staff will return to the City Council.
RLW:sh
Attachment
e'�A D—
ROBERT L. WYNN
WILLIAM C. HANLEY. CITY MANAGER • ! JOHN S. ATKINS
OIR[CTOn OF
INSPECTION SERVICE[
CITY OF BERKELEY
T[LHO 64446530 INSPECTION SERVICES DEPARTMENT PLEASE REFER To
A Co. nu Cot 4l5 CITY HALL, SERY.ELEY. CALIFORNIA 04704 FILE NO.
October 20, 1971 %1,' -
A7E;IRGz75 CFFICE
Mr. Robert L. Wynn
£ �C721 1971 ea.
City Manager CITY OF
City Hall Z NEtNP01ii Gu1CH
Newport Beach, California CALIF.
Dear Mr. Wynn:
We are writing in regards to your letter of -August 31, 1971, in which
you requested information as to our procedures in enforcing our Zoning
Ordinance's provisions relating to illegal conversions of garages,
residences, etc., in restricted residential areas. What you have touched
upon is the "Achilles Heel" of the Zoning Ordinance.
As you undoubtedly know, Berkeley is a•colAege_community. *Being a college
community, young people, whether students or not;.are attracted here.
Many of these people demonstrate certain "life styles" which are innovative
and often are in violation of laws, and the Zoning law may be a case in
point:'.:In.,gonjunFtion with the intrusion of young people, the City also
has a permanent elderly residential. population. "These people are often
on fixed incomes and reside in houses that are too large for their own
total accommodations. 'This area is also receiving increases in tax
assessments and tax rates each year. Thus, many, of the larger houses
in Berkeley seem idda&"ior donversion both as an income source, and as a
supplement to the fixed -income problem. As you can see,•we are•pointing
out a problem here that may not be unique to your area.
Although the above problem exists to some degree City-wide, we still
attempt to enforce the provisions of the Zoning Ordinance regarding
illegally converted units. The biggest obstacle that owners are confronted
with is providing required off-street parking; namely, one space per
dwelling unit or one space for each two roomers when up to four roomers
are allowed in the R-1 District. A dwelling unit, on the other hand, has
all the necessary provisions of total living accommodations --bedroom,
kitchen, and bath. Usually, we become aware of illegal units by way of
complaint, either by neighbors, tenants, or others. Where a house is
being rented to a group of people who are unrelated by blood, marriage or
adoption, we define one person as the family and all others as sub-
lessees or roomers. Such a tight definition of a family often runs
counter to that of many individuals occupying what we define as a commune.
These individuals feel that their relationships with one another are
more of a family than many families in which individuals are related.
Let that be as it may., we are still privileged to enforce the Ordinance's
definition of a family.
,*
n
Mr. Robert L_ Wynn
-2-
October 20, 1971
Therefore, when we find an illegally occupied dwelling unit or house, we
serve a notice on the owner to vacate the -unit or obtain a variance and/or
provide required off-street parking. Compliance is expected in thirty
(30) days, which we feel is ample time for the occupant to find new quarters.
When the property is reinspected, it may be found to be in compliance.
However, this may only be illusory due to the mobility of the occupants
and their transitory life and few belongings. If the unit in question
appears vacant, we will clear our files accordingly. There is no attempt
to record the address or location of illegal units, although this might
be desirable for future random surveillance. Our experience has found
that many of the illegal units become reoccupied once we have cleared our
file.
When an owner or tenant fails to comply with our vacation notice, we
schedule an office hearing in order to see if a solution can be reached
administratively. When all administrative procedures have been exhausted,
we refer the matter to the District Attorneys Office for a citation
hearing. If this procedure fails, then we will file a complaint against
the person or persons for judicial review. Most cases referred to the
court are resolved with suspension of fine and sentence as long as the'
individual complies with the court order in the specified period of time
determined by the court. One final word regarding the use of the courts
in resolving- Zoning matters. Most of the time the court calendars are
full, sometimes a month or more in advance. Zoning cases referred to the
court receive a low priority in that they are misdemeanors and not criminal
in nature. Also, the judicial review may not conclude that an' individual s
or the neighbors` health or welfare are impaired by the occupancy of the
alleged illegal unit. Thus, these two aspects --hearing court calendars
and judicial attitude --make the utilization of these procedures the last
alternatives to utilize in the enforcement of the Zoning Ordinance. Since
the District Attorney prosecutes all misdemeanor cases --Zoning and others --
he can be selective in what cases he will prosecute. Thus, his attitude,
as well as those of judges and/or judges, regarding Zoning problems is
important in the administration of the Zoning Ordinance.
Perhaps you have already experienced many of the above problems and
realized the difficulties in the enforcement of illegally created living
units. The various life styles we are encountering today in this city
would require most stringent enforcement methods which would have
questionable constitutionality, such as night inspection, head counts,
etc. In conclusion, we would say that the enforcement of the Zoning
Ordinance respecting illegal conversions is virtually unenforceable
except when there is voluntary compliance or when the attitude of enforce-
ment officials is in unison in that the problem warrants strict enforcement.
If strict enforcement is the communityts desire, then sufficient funds
must be budgetted for inspection personnel so that the Ordinances pro-
visions are enforced. Secondly, when the courts must be utilized, Zoning
problems, especially those involving illegally created living units,
must be given.a higher priority. As you know so well, the competition
for City funds by its various agencies leaves very little for the enforce-
ment of Zoning regulations. Thus, in our judgment, the City must decide
9
Mr. Robert L. Wynn -3-
October 20, 1971
that the enforcement of its Zoning regulations is to receive top priority
and provide the necessary staff and administrative machinery to achieve
this end. Writing and adopting a Zoning Ordinance,per se, is not enough.
It is our hope that the above information will be of benefit to you in
answering your questions regarding our enforcement of the Zoning Ordinance.
We have not abdicated our responsibility in the enforcement of the Zoning
provisions, but we have attempted to inject a little realism as to the
enforceability of its provisions. If we can be of any further assistance
to you, please feel free in contacting this Department.
Very truly yours,
JOHN S. ATKINS, DIRECTOR
INSPECTION SERVICES DEPARTMENT
�-R bert L. Davis
Senior Housing Representative
JSA/RLD:hf
OCT '2y 1973
1
y An CITY COUNCIL RESOLUTION OF THE BOARD OF SUPERVISORS
2' Iti m rl^-rlc� W RPACM OF ORANGE COUNTY, CALIFORNIA
3
October 2, 1973
M
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f /P 1
5
On motion of Supervisor Clark, duly seconded and carried, the
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folloiaing Resolution was adopted:
7
WHEREAS, this Board has received and considered a report from the
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Director of Building and'Safety pertaining to land use and occupancy
9
regulations and foster homes; •+
10
NOW, THEREFORE, BE IT RESOLVED that the Planning Commission is
11
requested to consider amending the definition of "Family" in the Zoning
12
Code to reflect the requirements of State law cited by the Director of
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Building and Safety;
14
BE IT FURTHER RESOLVED that the Planning Commission is requested to
15
consider adding a definition of "Foster Homes" to the Zoning Code,. and
oZo;
,V
r,wgoo
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the Planning Department is instructed to study such additional conditions
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as may'be necessary to protect the health and safety of neighborhood
I
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residents in view of Section 5115 of the Welfare.and Institutions Code
19
which provides for the placing of six or fewer handicapped persons in all
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residential districts;
21
BE IT FURTHER RESOLVED that the cities in Orange County, through
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the Intergovernmental Coordinating Council, are urged to consider their
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respective zoning ordinances to bring about consistency with the County
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regulations for foster homes.
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26
27
28 AYES:
29
30 NOES:
31 ABSENT:
SUPERVISORS
SUPERVISORS
SUPERVISORS
32
RWB:jj Resolution No. 73-1187
Study - Requirements fo
Foster Homes
F 0191.1.1
RALPH B. CLARK, RONALD W. CASPERS, R. W. BATTIN,
DAVID L. BAKER and RALPH A. DIEDRICH
))ate .......... pCT... I..p... 1473
COPIES MIT TO:
NONE n >�"Or
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L`�r 'Hanauer
NONE �110 cool
�.nppr 1Y ark• Ilu•crlor 'InnnMf Director
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F0192-22
CRS
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
I, WILLIAM E. ST JOHN, County Clerk and ex-officio Clerk of the
Board of Supervisors of Orange County, California, hereby certify that
above and foregoing Resolution was duly and regularly'adopted by the
said Board at a regular meeting thereof held on the 2nd day of
October 19 73, and passed by a unanimous vote of
said Board.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this
2nd day of October 19_Z3.
WILLIAM E. ST ,JOHN
County Clerk and ex -of
of the Board of Supcxw$.+,c¢r�,of
Orange County.;a.33forni'fi •.
Byit•r'1~ y' Y'^
ePuty," t o
(tiff lr111rr
2•
NOV 26 1973 CITY OF NEWPORT BEACH
I ,i3 CiT7 C=MCiL Office of
„ „ s ;,,,,,, CITY ATTORNEY
To: The Honorable Mayor and
Members of the City Council
From: City Attorney
November 26, 1973
Subject: Review of Zoning Enforcement Ordinances
The City Council has requested this office to examine the
City's various zoning enforcement ordinances for the purpose
of making any suggested changes which would aid in the
elimination or reduction of the illegal rental units.
The following considerations may be worthy of further study
and possible implementation:
(1) Section 20.02.150 defines "dwelling, two-family or
duplex" to mean a building containing not more than two
kitchens, designed and/or used to house not more than two
families, living independently of each other.
Language could be added to prohibit any type of cooking,
warming, or heating facilities associated with the preparation
of food to be allowed in any guest room in excess of the two
kitchens.
(2) Section 20.02.180 defines "family" as an individual
or two or more persons related by blood, marriage, or adoption,
or a group of not more than five (5) persons who are not
related by blood, marriage or adoption, or a combined group
of related and unrelated persons where the number of unrelated
persons does not exceed five (5) living together as a single
housekeeping unit in a dwelling unit.
The effect of the definition is to place the
following restrictions on the renting and occupancy of a house
or apartment unit:
(a) With respect to a group of unrelated persons
living together, there is a maximum limitation of five.
(b) With respect to persons related by blood,
marriage or adoption, there is no limit on the number of
r�
To: City Council -2- November 26,'1973
such persons who may live together
California Housing Laws)
(Subject to the
(c) In addition to a family composed of persons
related by blood, marriage or adoption, there may be up
to five nonpaying guests who are unrelated.
Perhaps this section could be modified to further limit the
number of unrelated persons who could occupy a house or an
apartment.
(3) Section 20.14.020(c) provides for accessory uses
normally incidental to single family or duplexes in the R-2
Districts. Commercial uses are expressly prohibited.
Language could be added to this section making it unlawful to
lease or rent any guest room or portion of a dwelling unit so
as to increase the economic income of that property beyond that
permitted in the particular zoning district. Even though this
prohibition currently exists in the code by enforcing the
"permitted uses" section in each particular residential district,
it may be helpful to have it spelled out as a means of better
informing the property owner and to provide an explicit section
for citing a violation.
In addition to the above modifications to existing code sections,
new provisions could be added which would:
A. Give the code enforcement officer and zoning inspector
authority to issue citations for violations of Chapter 20 of
the Municipal Code.
B. Place restrictions on overnight parking in areas where
feasible in an attempt to force persons to use their garages for
parking automobiles.
C. Give authority to the Building Supervisor to deny
applications for building permits for structures which in his
opinion could readily be converted into unlawful living areas.
D. Require on -site inspections when property is sold,
before issuing a Report of Residential Building Records under
our new "Truth in Real Estate" law. The report as issued by
the Building Division under current practice shows the zoning,
authorized use of the property, variances, use permits, building
permits and any other legislative acts of record which may
apply to the property. Of course, an on -site inspection would
disclose the illegal uses of the property which would have to
be corrected before the Report of Residential Building Records
would be issued.
w . .
•
To: City Council -3- November 26, 1973
in conclusion, to have a viable zoning enforcement program it
requires both public support and judicial cooperation, as well
as adequate personnel to carry out and police such program.
DENNIS O'NEIL
City Attorney
DON:mh
cc: City Manager
City Clerk
Community Development Director
my 2 G 1973
r,l ,I- C!T'r C0117rC%:'1
CITY OF NEWPORT BEACH
Office of
CITY ATTORNEY
To: The Honorable Mayor and
Members of the City Council
From: City Attorney
November 26, 1973 g 7
Subject: Procedures for adopting General Plan
and Zoning Amendments
Attached is a copy of a memorandum pertaining to the procedures
for adoption of the General Plan, previously transmitted to the
City Council on February 28, 1972. It should be noted, under
paragraph 4, that if the City Council amends any element after
approval by the Planning Commission, the change must be referred
back to the Planning Commission for comment.
Under our procedures for adopting an amendment to those sections
of the Municipal Code relating to zoning and planning, a some-
what different procedure is followed. After the public hearing
before the Planning Commission, the City Council introduces and
sets the matter for a public hearing. If the Council makes any
changes upon introduction of the amendment, it may be within
the discretion•of the Council referred back to the Planning
Commission for further review. It has been the practice and
policy of the Council to refer back to the Planning Commission
any substantial changes to the ordinance. Unlike a change in
the General Plan element, it is not mandatory to refer the
matter back to the Planning Commission.
Should the Council make a change during the public hearing, then
the amended ordinance would have to be reintroduced and either
adopted at the following meeting or the change referred back to
the Planning Commission.
DENNIS O'NEIL
City Attorney
DON:mh
Att.
cc: City Manager
City Clerk
Community Development Director
CITY OF NEWPORT BEACH
Office of
CITY ATTORNEY
TO: The Honorable Mayor and February 28, 1972
Members of the City Council
From: City Attorney
Subject: Procedure for the adoption of, and possible
future amendments to, the General Plan
The following is the suggested procedure for the adoption
of the General Plan, as well as the procedure for the change of, or
addition to, the adopted General Plan:
MANNER OF ADOPTION
The General Plan or any part or element thereof, and any
amendment to such plan or any part or element thereof, shall be
adopted in the following manner:
1. Public hearing - Planning Commission
The Planning Commission shall hold at least one public
hearing before approving a General Plan or any part or element
thereof, or any,amendment to such plan or any part or element thereof,
and shall give notice of hearing by at least one publication in a
newspaper of general circulation within the City at least ten days
prior to the first of such hearings.
2. Approval by Planning Commission - Resolution
The approval by the Planning Commission of the General
Plan or any part or element thereof, or any amendment to such plan
or any part or element thereof shall be by the adoption of a resolu-
tion, endorsed by the Chairman and Secretary of the Commission and
transmitted to the City Council.
3. Public hearing - City Council
Before adopting the General Plan or any part or element
thereof, or any amendment to such plan or any part or element thereof,
the City Council shall hold at least ong public hearing. Notice of
the time and place of the hearing shall be given at the time and in
the manner provided for the giving of notice of the hearing by the
Planning Commission.
Re: General Plan -2- February 28, 1972
4. Referral of proposed changes back to Planning Commission
In adopting a General Plan or any part or element
thereof, or any amendment to such plan or any part or element thereof,
which has been approved by the Planning Commission, the City Council
shall not make any change or addition until the proposed change or
addition has been referred to the Planning Commission for review and
comment. it shall not be necessary for the Planning Commission to
hold a public hearing on such proposed change or addition.
5. Adoption by City Council - Resolution
The adoption of the General Plan or any part or element
thereof, or any amendment to such plan or any part or element thereof,
shall be by resolution.
AMENDMENT TO GENERAL PLAN
When it deems it to be in the public interest, the City
Council, or the Planning Commission, may change or add to all or a
part of an adopted General Plan, following the procedure outlined
above under "Manner of Adoption".
4DNN IS O'NEIL
City Attorney
DON:mh
cc: City Clerk
City Manager
Community Development Director
i
AUG 14. 1978
By the Ciff COUNCIL
CITY OF ►CIF IPORT BEACH
CI�Y OF NEWPORT BEACH
Office of
CITY ATTORNEY
To: Honorable Mayor and
Members of City Council
From: City Attorney
Subject: D•wn-.Zoning�Inverse`Condemnation!
Introduction
August 14, 1978
D-8(d)
From time to time, the terms "down zoning" and "inverse
condemnation" are mentioned as the City processes various ordi-
nances and General Plan amendments. We thought a discussion of
these subjects and their relationship to each other would be
helpful in providing the Council with a better understanding of
the law in this area. Please keep in mind, however, that this
report covers only a general statement of the law and that these
principles may not apply in every case.
Zoning - Eminent Domain
The authority of cities to enact and enforce zoning
regulations is derived from the general police power contained in
the State Constitution - to protect the health, safety and welfare
of the people residing in the community. The power of eminent
domain (condemnation) is the inherent power of cities to take pri-
vate property for public use. However, cities are limited in
exercising this power by the State Constitution which assures the
private landowner he will be justly compensated if his land is.
taken or damaged. Unlike the person whose property is taken in
eminent domain, the individual who is deprived of his property
due to the city's exercise of its police power is not entitled to
compensation.
August 14, 1978
Page Two
Down Zoning - Inverse Condemnation
Inverse Condemnation
if a city in carrying out a public purpose appropriates
or damages a person's private property without paying for it in
advance, the city is said to have acquired the property through
inverse condemnation and the landowner can bring suit against the
city to recover the compensation due him. Property owners alleging
that a zoning regulation is arbitrary or confiscatory and/or
reduces the market value of their property have typically sought
judicial relief based on a theory of inverse condemnation.
Down Zoning (Case Law)
In California the general rule is that a rezoning of
property which reduces the market value of the land does not give
rise to a cause of action in inverse condemnation. Landowners
have no vested right in existing or anticipated zoning ordinances.
(Anderson v. City Council, 229 Cal.App.2d 79.) A purchaser of land
merely acquires aright to continue a "use" instituted before the
enactment of a more restrictive zoning. Public entities are not
bound to reimburse individuals for losses due to changes in zoning,
for within the limits of the police power "some uncompensated
hardships must be borne by persons as the price of living in a
modern enlightened and progressive community." (Gisler v. County
of Madera, 38 Cal.App.3d 303.)
Perhaps the leading down zoning case to date was decided
by the California Supreme Court in 1975 in the case of HFH Ltd. v.
Su erior Court, 15 Cal.3d 508. In HFH, plaintiffs were the owners
of real property which was rezoned Mom commercial to single family
thereby reducing its value from $400,000 to $75,000. The Court
held that the zoning action taken by the city reducing the market
value of the land did not state a cause of action in inverse condem-
nation in that the property owner could still enjoy some reasonable
beneficial use of the land.
Exceptions to the General Rule (Case Law)
There are certain exceptions to the rule that down zoning
is not a basis for inverse condemnation. For example, a city may
abuse its use of the police power by placing unreasonable or
N
August 14, 1978
Page Three
Down Zoning - Inverse Condemnation
arbitrary regulations on land under
regulation may be unreasonable if it
any beneficial use of his property.
the guise of zoning. A
deprives the landowner of
In the case of Eldridge.v. City of Palo Alto, 57 Cal.
App.3d 613, plaintiff brought an action in inverse condemnation
based on the action of the City -of Palo Alto rezoning plaintiff's
property from'single family residential use on a minimum one -acre
site to minimum ten -acre home sites designated for use in con-
junction with parks and open space. The Court found that the
rezoning allowed no reasonable use -of plaintiff's property and
that it therefore amounted to a taking. The Court also held
that rezoning constituted an unreasonable attempt by the city to
create an actual public use of plaintiff's property by placing it
in the city's park and open space program.
San Diego Gas and Electric v. City of San Diego, 81 Cal.
App.3d 844, is a case decided in May of this year. In this case
the City of San Diego placed industrial land in its open space
element of the general plan, the definition of which would rule.
out the use of the property for industry. San Diego Gas and
Electric claimed.that the city had inversely condemned its land
because the zoning regulations, combined with the open space ele-
ment of the general plan, made it impossible to use the land. The
Court agreed and ordered the city to pay the company over three
million dollars plus interest and attorneys' fees.
Remedies
When a city restricts a landowner's use of his property,
it is important to determine whether it is doing so under the
police power or under the power of eminent domain because this is
what governs the question of what the landowner may be entitled to
as his remedy. The basic question to ask is whether the city's
action is a regulation or a taking. Unfortunately, there is no
set formula to distinguish a regulation from a taking or to draw
a line where regulation ends and taking begins. Where the city
acts in its enterprise capacity, acquiring assets from the citizenry
for its own account, as it were, then payment must be made. Where
the government mediates disputes among competing alternatives, such
as prohibiting an industrial or commercial use in a residential
area, it is merely regulating the private interests, in the community.
L�]
a* a *NA
August 14, 1978
Page Four
Down Zoning - Inverse Condemnation
If a city acts arbitrarily or discriminatorily in passing
the ordinance in question, then the landowner can sue to have the
ordinance changed. If a city enacts an unconstitutional or invalid
ordinance, the landowner may seek to enjoin its implementation or
to have it declared void. If the zoning ordinance is valid but is
so harsh and oppressive that it deprives the owner of any reasonable
beneficial use of his land, then the property owner can sue in
inverse condemnation and recover money damages for the value of
the taking.
Conclusion
In summary, the act of down zoning, as long as it is
reasonable, is not a basis for inverse condemnation. Whether or
not a particular zoning restriction is reasonable is a question of
fact depending upon the circumstances of each case. The test to
be followed essentially involves weighing the social gains to be
obtained by the regulatory action against the loss that an
individual will sustain by imposition of the regulation against
private property. The ultimate decision rests on a finding of
whether or not the property owner will be left with any reasonable
use of his land after the rezoning.
DDO/kb
0 0, (9q)
MEMORANDUM
OFFICE OF THE CITY ATTORNEY
January 3, 1984
BY THE city COUNCIL
CITY OF HEWPORT REACH
JAN a 91994
Agenda Item No. F 2 (f)-
To: Hon. Mayor & Members of the City Council
From: Robert Burnham - City Attorney
Re: Adoption of�Resoluton Expressing "Intent to
jTerm "Family" for Purposes of _the Zoning W
In 1980, the California Supreme Court ruled that a
Santa Barbara zoning ordinance, which prohibited more than five
unrelated persons from residing in a dwelling unit, violated the
California Constitution. Santa Barbara v. Adamson 27 Cal 3d
123. The Santa Barbara ordinance invalidated in Adamson, supra,
is very similar to the definition of family in the Newport Beach
zoning code. It is the opinion of this office that our ordinance
would be ruled unconstitutional if challenged.
On August 4, 1980, Hugh Coffin advised the Planning
Director that the ruling of the Supreme Court in Adamson had
effectively invalidated the definition of family found in our
zoning code and, from that date, we have enforced our zoning
ordinance in a manner consistent with the ruling of the Court.
As a practical matter, the ruling of the Court did not
have much impact on our ability to take enforcement action
against illegal units. In taking action against illegal units,
the City looks more towards the number of separate living areas
than the number of persons living within a particular area. An
amendment of the term "family" to conform to the ruling of the
Court in Adamson will help, not hinder, our Code Enforcement
Officer.
It is recommended that the City Council adopt a
Resolution requesting the Planning Commission initiate an
amendment to Chapter 20.87 of the Newport Beach Municipal Code
regarding the definition of the term "family."
RHB/pr
MMP/Family
2
R bert H. Burnham
C ty Attorney
RESOLUTION NO. 8 4 - G
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH REGARDING THE DEFINITION OF
"FAMILY"
WHEREAS, on May 14, 1979, the City Council amended the
provisions of Section 20.87.180 of the Newport Beach Municipal
Code thereby amending the definition of the term "family" to
include an unlimited number of persons related by blood, marriage
or adoption or no more than four persons not so related; and
WHEREAS, in May, 1980, the California Supreme Court
declared invalid 'a Santa Barbara Ordinance which defined the term
"'family" in essentially the same terms used in the Newport Beach
Municipal Code; and
WHEREAS, it is appropriate to amend the provisions of
our Zoning Code by defining the term "family," and to do so in
accordance with the ruling of the Supreme Court;
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Newport Beach that the Planning Commission of the
City of Newport Beach is hereby requested to initiate an
amendment to Section 20.87.180 of the Newport Beach Municipal
Code, in accordance with the provisions of Chapter 20.87 of the
Municipal Code.
ADOPTED this day of JAN 09 , 1984.
Mayor
ATTEST:
City Clerk
f
(V
AGENDA NO. 46
•
CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDIIM
June 8, 1994
N
JUN 2 7 1994
TO: Mayor Clarence Turner
Members of City Council
FROM: Robert H. Burnham
SUBJ: Proposed Amendments to Mariners Mile Specific Area
Plan
Authority to waive a Portion of off -Street Parking
Requirements
On May 23, 1994 the City Council directed this office to draft
• amendments to the Mariners Mile Specific Area Plan that would
authorize the Planning Commission or City Council to waive all or
a portion of the off-street parking requirements related to the
increased floor area resulting from inclusion of the highway
setback in the calculation of buildable area. The proposed
ordinance has been drafted and staff recommends amendments be
introduced on June 13, 1994 and pa ed to second reading and
adoption on June 27, 1994. ��
o ert H. Burnham
City Attorney
RHB:gjb
NayCC.613
•
AGENDA NO. 46
ORDINANCE NO. � _
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH AMENDING PORTIONS OF THE
MARINERSs MILE SPECIFIC AREA PLAN (CHAPTER
20.62 OF THE NEWPORT BEACH MUNICIPAL CODE)
RELATING TO PARCELS ON THE NORTHERLY SIDE dF
WEST COAST HIGHWAY SO AS TO ALLOW THE PLANNING
COMMISSION OR CITY COUNCIL TO WAIVE A PORTION
OF THE OFF-STREET PARKING REQUIREMENTS IF
CERTAIN CRITERIA ARE MET.
WHEREAS, Section 20.84.010 of the Municipal Code of the City
of Newport Beach provides that Title 20 (the Zoning Code) may be
amended by changing the zoning designation of Districts and other
provisions whenever the public necessity and convenience and the
public welfare require such amendment; and
WHEREAS, Section 20.84.020 of the Municipal Code provides that
an amendment to Title 20 may be initiated by the City Council; and
WHEREAS, on November 22, 1993 the City Council adopted
Resolution No. 93-82 initiating an amendment to Chapter 20.62 of
the Zoning Code (Mariners' Mile Specific Area Plan) so as to allow
the Planning Commission or city Council to waive a portion of the
off-street parking requirements if certain criteria are met; and
WHEREAS, pursuant to the California Environmental Quality Act
an Initial Study has been conducted to evaluate the potential
environmental impacts of the proposed project. The Initial Study
concluded that the project could not have 4 significant effect on
the environment, therefore a Negative Declaration has been
prepared; and
WHEREAS, pursuant to Section 20.84.30, the Planning Commission
on March l0, 1994 held a duly noticed public hearing to consider
Amendment No. 796 to Title 20 of the Newport Beach Municipal Code,
and at the conclusion of that hearing adopted a resolution
recommending city Council approval of the amendment; and
NHEREAB, pursuant to Section 20.84.050, the City council, on
April 11, 1994 held a duly noticed public hearing to consider
Amendment No. 796 to Title 20 of the Newport Beach Municipal Code;
and
WHEREAS, based upon the information contained in the Initial
Study, comments received, and all related documents in the record,
1
•
AGENDA NO. 46 '
the City Council finds that there is no substantial evidence that
the project, as conditioned or as modified by mitigation measures
identified in the Initial Study, could have a significant effect on
the environment, therefore the Negative Declaration is hereby
aonroved. The City Council finds that the Negative Declaration
adequately addresses the potential environmental impacts of the
project, satisfies all the requirements of CEQA, and reflects the
independent judgement of the City Council. The Negative
Declaration was reviewed and considered prior to approval of the
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1. Section 20.62.030(B)(2) of the Newport Beach
Municipal Code is hereby amended as follows:
2. PARKING SPACES. Off-street parking spaces shall be provided
as set forth in Chapter 20.30.035 of the Municipal Code, however,
off-street parking for all floor area/building bulk of any
requirements
20.62.050(C)(1) that exceeds 0.5 times the buildable area of the
site exclusive of all setbacks may be waived by the Planning
Commission, or City Council on appeal, upon a finding there will be
no adverse impact on parking in the area and the provision of the
additional parking on site would create a hardship.
The Mayor shall sign and the City Clerk shall
attest to the passage of this Ordinance. This Ordinance shall be
published once in the official newspaper of the City, and the same
shall become effective thirty (30) days after the date of its
. AGENDA N0. 46 •
This Ordinance was introduced at a regular meeting of the City I ~
Council of the City of Newport Beach hold on the Gth day of June,
1994, and adopted on the day of
1994, by the following vote, to wit: •
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
MAYOR
ATTEST: •
CITY CLERK
F:\eat\91n&\ord1m\MN91•18.21
[l
r
ORDINANCE NO. 94-28
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH AMENDING PORTIONS OF THE
MARINERS' MILE SPECIFIC AREA PLAN (CHAPTER
20.62 OF THE NEWPORT BEACH MUNICIPAL CODE)
RELATING TO PARCELS ON THE NORTHERLY SIDE OF
WEST COAST HIGHWAY SO AS TO ALLOW THE PLANNING
COMMISSION OR CITY COUNCIL TO WAIVE A PORTION
OF THE OFF-STREET PARKING REQUIREMENTS IF
CERTAIN CRITERIA ARE MET.
WHEREAS, Section 20.84.010 of the Municipal Code of the City
of Newport Beach provides that Title 20 (the Zoning Code) may be
amended by changing the zoning designation of Districts and other
provisions whenever the public necessity and convenience and the
public welfare require such amendment; and
WHEREAS, Section 20.84.020 of the Municipal Code provides that
an amendment to Title 20 may be initiated by the City Council; and
WHEREAS, on November 22, 1993 the City Council adopted
Resolution No. 93-82 initiating an amendment to Chapter 20.62 of
the Zoning Code (Mariners' Mile Specific Area Plan) so as to allow
the Planning Commission or City Council to waive a portion of the
off-street parking requirements if certain criteria are met; and
WHEREAS, pursuant to the California Environmental Quality Act
an Initial Study has been conducted to evaluate the potential
environmental impacts of the proposed project. The Initial Study
concluded that the project could not have a significant effect on
the environment, therefore a Negative Declaration has been
prepared; and
WHEREAS, pursuant to Section 20.84.30, the Planning Commission
on March 10, 1994 held a duly noticed public hearing to consider
Amendment No. 796 to Title 20 of the Newport Beach Municipal Code,
and at the conclusion of that hearing adopted a resolution
recommending City Council approval of the amendment; and
WHEREAS, pursuant to Section 20.84.050, the City Council, on
April 11, 1994 held a duly noticed public hearing to consider
Amendment No. 796 to Title 20 of the Newport Beach Municipal Code;
and
WHEREAS, based upon the information contained in the Initial
Study, comments received, and all related documents in the record,
1
the City Council finds that there is no substantial evidence that
the project, as conditioned or as modified by mitigation measures
identified in the Initial Study, could have a significant effect on
the environment, therefore the Negative Declaration is hereby
approved. The City Council finds that the Negative Declaration
adequately addresses the potential environmental impacts of the
project, satisfies all the requirements of CEQA, and reflects the
independent judgement of the City Council. The Negative
Declaration was reviewed and considered prior to approval of the
project.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1. Section 20.62.030(B)(2) of the Newport Beach
Municipal Code is hereby amended as follows:
2. PARKING SPACES. Off-street parking spaces shall be provided
as set forth in Chapter 20.30.035 of the Municipal Code, however,
off-street parking for all floor area/building bulk of any
structure subject to the setback requirements of Section
20.62.050(C)(1) that exceeds 0.5 times the buildable area of the
site exclusive of all setbacks may be waived by the Planning
Commission, or City Council on appeal, upon a finding there will be
no adverse impact on parking in the area and the provision of the
additional parking on site would create a hardship.
SECTION 2. The Mayor shall sign and the City Clerk shall
attest to the passage of this Ordinance. This Ordinance shall be
published once in the official newspaper of the City, and the same
shall become effective thirty (30) days after the date of its
adoption.
F
This Ordinance was introduced at a regular meeting of the City
Council of the City of Newport Beach held on the 13th day of June,
1994, and adopted on the 27th day of June ,
1994, by the following vote, to wit:
ATTEST:
F:\cat\9ina\ordinan\MM94-18.gj
AYES, COUNCILMEMBERS SANSONE, WATT, TURNER,
HART COX, DERAY
NOES, COUNCILMEMBERS NONE
ABSENT COUNCILMEMBERS HEDGES
3
(R)
• , AGENDA NO. 16
CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM I BY THE CI i
June 8, 1994
JUN 1 31994
TO: Mayor Clarence Turner I " 1/, H �G 6 _ 2,
Members of City Council
FROM: Robert H. Burnham
SUBJ: Proposed Amendments to Mariners Mile Specific Area
Plan
Authority to Waive a Portion of Off -Street Parking
Requirements
on May 23, 1994 the City Council directed this office to draft
amendments to the Mariners Mile Specific Area Plan that would
authorize the Planning Commission or City Council to waive all or
a portion of the off-street parking requirements related to the
increased floor area resulting from inclusion of the highway
setback in the calculation of buildable area. The proposed
ordinance has been drafted and staff recommends amendments be
introduced on June 13, 1994 and pa ed to second reading and
adoption on June 27, 1994.
City Attorney
RHB:gjb
MeyCC.613
A.,
. AGEN*NO
CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM BY THE Cir' CC.U.
CITY OF i�E'.':?C " �= sH
May 18, 1994 _ _
'.7 MAY 2 319rr9--4 I
TO: Mayor Clarence Turner
Members of City Council
FROM: Robert H. Burnham
SUBJ: Mariners Mile Specific Area Plan 7 M
Proposed Revisions to Parking Standards and Height
Limit Criteria
On May 9, 1994, the City Council directed staff to meet with
representatives of various homeowners associations and the Mariners
Mile Merchants Association to discuss the proposed revisions to the
Specific Area Plan criteria to exceed the basic height limit. The
consensus of those contacted was that continued discussion of this
single issue (height limit criteria) would not be productive and
would obscure the primary objective of all concerned - the
revitalization and beautification of Mariners Mile. Bob Newberry,
one of the resident representatives, suggested that Newport Heights
and Cliff Haven residents are interested in, and would benefit
from, a revitalized retail district easily accessible to residents.
The Economic Development Committee has expressed an interest in
revitalization efforts and could prove to be a useful vehicle in
that regard. Finally, staff would like the opportunity to evaluate
proposals and concepts which revitalize and beautify Mariners Mile
in a way that benefits the residential communities of Newport
Heights and Cliff Haven:
RECOMMENDATION:
It is recommended that the City Council direct the Assistant
City Manager, City Attorney, Planning Director and Public Works
Director to develop a process (involving representatives of Cliff
Haven, Newport Heights, Park Place, the Planning Commission,
Economic Development Committee and Mariners Mile Merchant
Association) and concepts which could lead to the revitalization
and beautification of Mariners Mile without any adverse impact on
0 QGENDA NO.
the residential community.
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Marinage.mem
. c.
Very./truly yours,
Robert H. Burnham
City Attorney
0
CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
June 8, 1994
TO: Mayor Clarence Turner
All Councilmembers
FROM: Robert H. Burnham
SUBJ: Floor Area Calculations
PCH Between Rocky Point and Dover
r9�)
AGENDA N0. 21
BY THE CITY COUNCIL 1
CITY OF NEWPORT BE CP
JUN 1 31994 1
f
Councilmember Hart has asked this office to prepare amendments
to the Zoning Code so that property owners along the north side of
Pacific Coast Highway between Rocky Point and Dover would be
treated the same way as their counterparts in Mariners Mile - that
the area designated for highway widening would be included in the
calculation of buildable area for the purposes of determining the
amount of permitted development. There is no formal highway
setback between Rocky Point and Dover but, according to the
Planning Department, structures would not be permitted in the area
designated for highway widening because of conflicting General Plan
provisions. The Planning Department and this office believe that
Councilmember Hart's proposal could best be implemented by amending
the provisions of our floor area ratio ordinance to make it clear
that the total square footage of any site abutting a State highway
which has been designated as a setback or within which structures
are not permitted would be considered in calculating the permitted
development upon any parcel.
RECOMMENDATION: If desired, initiate an amendment to Section
20.07.030 of the Newpott Beach Municipal code pertaining to the
total square footage of the site and request the Planning
Commission conduct a hearing on the proposed amendment as soon as
possible.
Very ruly yours,
obert H. Burnham
City Attorney
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TotSgFt.mem