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2500 Planning - Attorney ConfidentialsMEMORANDUM TO: FROM: SUBJECT: i • cry 0/RoilingJJdf INCORPORATED JANUARY 24, 1957 NO. 2 PORTUGUESE BEND ROAD ROLLING HILLS, CALIF. 90274 (310) 377-1521 FAX: (310) 377-7288 E-mail: cityofrh@aol.com HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL CRAIG R. NEALIS, CITY MANAGER CORRESPONDENCE FROM CITY ATTORNEY MIKE JENKINS RELATIVE TO CORRESPONDENCE FROM THE STATE ATTORNEY GENERAL. DATE: JULY 26, 2001 At a previous City Council meeting, Councilmember Godfrey Pernell requested that the City Attorney provide comments on how "reasonable accommodations procedures" as described in the attached correspondence from State Attorney General Bill Lockyear might apply to the City of Rolling Hills. "Reasonable accommodation procedures" involve the adoption of zoning laws and other land use regulations or procedures relating to disabled persons having an equal opportunity to housing units. In the attached information, City Attorney Mike Jenkins has determined that the City does not need to adopt an ordinance in this regard due to the City's unique development characteristics and existing approach to land use development applications. CRN:mjs 07/26/01AttyGenCor.mem cc: Mike Jenkins, City Attorney Yolanta Schwartz, Principal Planner -1- Printed on Recycled Paper. • JENKINS & HOGIN, LLP A LAW PARTNERSHIP JUL 2 5 2N1 (m OF Rat 1 Lt8 MICHAEL JENKINS CHRISTI HOGIN 1325 NINE1 hENTH STREET MANHATTAN BEACH, CALIFORNIA 90266 (310)939-1736 • FAX (310) 939-1726 www.LocalGovLaw.com WRITER'S EMAIL ADDRESS: MJENKINS@LOCALGOVLAW.COM CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. July 24, 2001 Craig Nealis - City Manager City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, CA 90274 Re: Reasonable Accommodation Dear Craig: Ina letter addressed to every mayor in the State dated May 15, 2001, Attorney General Bill Lockyer recommended that all cities adopt in their zoning ordinances specialised procedures for reviewing requests from persons with disabilities for reasonable accommodation from housing standards. 1 This letter will evaluate that recommendation. 1 If you have not seen the Attorney General's letter, please let me know and I will send you a copy. City Manager July 24, 2001 Page 2 As the Attorney General states in his letter, while federal and State law require that local entities modify their zoning ordinance standards pertaining to housing when necessary to accommodate the needs of persons with disabilities, such laws `do not require the adoption of a specialized ordinance or procedure for such purpose. Cities may utilize their existing conditional use permit -or variance procedures to provide the required accommodation in appropriate circumstances. Hence, the question is whether the City's current procedures would address special housing accommodation needs better with a:specialized procedure to: (1) assure that requests for accommodation are handled properly and consistently to protect against a possible legal challenge, (2) to communicate more effectively the City's compliance with, federal and State laws to the disabled community, and/or (3) to provide a more streamlined and, perhaps, less expensive procedure to handle requests for accommodation. , Though adoption of a procedure is not legally required, each of these policy considerations should be evaluatedin light of the City's particular demographics, zoning procedures, and history, policy and practices in responding to requests for accommodation. In my view, the adoption of such- a procedure would not be warranted given the City's unique development characteristics (exclusively single-family development pattern)and personalized approach to every development application. To give you an idea of what a reasonable accommodation procedure looks like, I have attached a copy of the reasonable accommodation provision in the San Jose zoning ordinance for your convenient reference. Please feel free to call me should you wish to discuss this matter further.. CHAPTER 20.160 REQUESTS FOR REASONABLE ACCOMMODATION 20.160.010 Purpose It is the policy of the City of San Jose to provide reasonable accommodation for persons with disabilities seeking fair access to housing in the application of its zoning laws. The purpose of this Chapter is to provide a process for making a request for reasonable accommodation. 20.160.020 Application A. Any person who requires reasonable accommodation, because of a disability, in the application of a zoning law which may be acting as a barrier to fair housing opportunities may do so on a form to be provided by the Director. B. If the project for which the request is being made also requires some other planning permit or approval, then the applicant shall file the request together with the application for such permit or approval. 20.160.030 Required Information The applicant shall provide the following information: I. Applicant's name, address and telephone number; 2. Address of the property for which the request is being made; 3. The current actual use of the property; 4. The zoning code provision, regulation or policy from which accommodation is being requested; 5. The bases for the claim that the individual is considered disable under the Fair Housing Act and why the accommodation is necessary to make the specific housing available to the individual. 20.160.040 Notice of Request for Accommodation Written Notice that a Request for Reasonable Accommodation shall be given as follows: EFFECTIVE FEBRUARY 19,2001 202 1. In the event that there is no approval sought other than the request for reasonable accommodation, the Notice shall be mailed to the owners of record of all properties which are immediately adjacent to the property which is the subject of the Request. 2. In the event that the Request is being made in conjunction with some other process, the Notice shall be transmitted along with the notice of the other proceeding. 20.160.050 Grounds for Accommodation In making a determination regarding about the reasonableness of a requested accommodation, the following factors shall be considered: 1. 2. 3. 4. 5. 6. Special need created by the disability; Potential benefit that can be accomplished by the requested modification; Potential impact on surrounding uses; Physical attributes of the property and structures; Alternative accommodations which may provide an equivalent level of benefit; In the case of a determination involving a one -family dwelling, whether the household would be considered a single housekeeping unit if it were not using special services that are required because of the disabilities of the residents; 7. Whether the requested accommodation would impose an undue financial or administrative burden on the City; and 8. Whether the requested accommodation would require a fundamental alteration in the nature of a program. 20.160.060 Notice of Proposed Decision 1. 2. Notice of the proposed decision shall be make in the same manner as provided above. Within ten (10) days of the date the Notice is mailed, any person may make a request for a Director's Hearing upon a proposed decision, 3. If no request for hearing is received the proposed decision shall become a final Director's Decision. 203 EFFECTIVE FEBRUARY 19,2001 .4 20.160.070 Director's Hearing The Director shall conduct a hearing on the Request for Reasonable Accommodation at which all reasonable evidence and credible testimony shall be considered. 20.160.080 Notice of Director's Decision A. Within thirty (30) days after the Hearing, the Director shall issue a decision granting the request, including any reasonable conditions, or denying the request. B. The Notice of Decision shall contain the Director's factual findings, conclusions and reasons for the decision. C. The Notice of Decision shall be made in the same manner as set forth in the previous section. EFFECTIVE FEBRUARY 19, 2001 204 • City lalinq.�s�t, INCORPORATED JANUARY 24, 1957 NO. 2 PORTUGUESE BEND ROAD ROLLING HILLS, CALIF. 90274 (310) 377-1521 FAX: (310) 377-7288 E-mail: cityofrh@aol.com MEMORANDUM TO: MIKE JENKINS, CITY ATTORNEY FROM: CRAIG R. NEALIS, CITY MANAGER SUBJECT: CORRESPONDENCE FROM OFFICE OF THE ATTORNEY GENERAL DATE: MAY 30, 2001 Attached to this memorandum is a correspondence from California Attorney General Bill Lockyear relating to affordable housing issues. At the City Council meeting held - Tuesday, May 29, 2001, Councilmemer Godfrey Pernell requested that you provide comments on how it may relate to the City of Rolling Hills. Please contact me if you require further information. Thank you for your cooperation and support. CRIV:mlk 05/30/0ljenkins.mem Printed on Recycled Paper. STATE OF CALIFORNIA OFFICE OF THE ATTORNEY GENERAL BILL LOCKYER ATTORNEY GENERAL May 15, 2001 The Honorable Godfrey Pemell Mayor of Rolling Hills 15 Flying Mane Road Rolling Hills, CA 90274 RE: Adoption of A Reasonable Accommodation Procedure Dear Mayor Pemell: Both the federal Fair Housing. -Act ("FHA") and•the California Fair Employment and Housing Act ("FEHA") impose an affirmative duty on local governments to make reasonable accommodations (i.e., modifications or exceptions) in their zoning laws and other land use regulations and practices when such accommodations "may be necessary to afford" disabled Persons "an equal opportunity to use and enjoy a dwelling." (42 U.S.C. § 3604(f)(3)(B); see also Gov. Code, §§ 12927(c)(1), 12955(1)) Although this mandate has been in existence for some years now, it is our understanding that only two or three local jurisdictions in California provide a process specifically designed for people with disabilities and other eligible persons to utilize in making such requests. In my capacity as Attorney General of the State of California, I share responsibility for the enforcement of the FEHA's reasonable accommodations requirement with the Department of Fair Employment and Housing. Accordingly, I am writing to encourage your jurisdiction to adopt a procedure for handling suchrequests and to make its availability known within your community. 2 1 Title II of the Americans with Disabilities Act (42 U.S.C. §§ 12131-65) and section 504 of the Rehabilitation Act (29 U.S.C. § 794) have also been found to apply to zoning ordinances and to require local jurisdictions to make reasonable accommodations in their requirements in certain circumstances. (See Bay Area Addiction Research v. City of (9th Cir. 1999) 179 F.3d 725; see also 28 C.F.R. § 35.130(b)(7) (1997).) 2 A similar appeal has been issued by.the agencies responsible for enforcement of the FHA. (See Joint Statement of the Department of Justice and the Department of Housing and Urban Development, Group Homes, Local Land Use and the Fair Housing Act (Aug. 18, 1999), p. 4, at < http://www.bazelon.org/cptha/cpfha.html> [as of February 27, 2001].) 1300 I STREET • SUITE 1740 • SACRAMENTO, CALIFORNIA • 95814 • 916-324-5437 The Honorable Godfrey Pemell May 15, 2001 Page 2 It is becoming increasingly important that a process be made available for handling such requests that operates promptly and efficiently. A report issued in 1999 by the California Independent Living Council makes it abundantly clear that the need for accessible and affordable housing for Californians with disabilities will increase significantly over the course of the present decade.3 The report's major findings include the following: • Between 1999 and 2010, the number of Californians with some form of physical or psychological disability is expected to increase by at least 19 percent, from approximately 6.6 million to 7.8 million, and may rise as high as 11.2 million. The number with severe disabilities is expected to increase at approximately the same rate, from 3.1 million to 3.7 million, and may reach 6.3 million.' Further, most of this increase will likely be concentrated in California's nine largest counties.5 • If the percentages of this population who live in community settings —that is, in private homes or apartments (roughly 66.4 percent) and group homes (approximately 10.8 percent) —is to be maintained, there will have to be a substantial expansion in the stock of suitable housing in the next decade. The projected growth of this population translates into a need to accommodate an additional 800,000 to 3.1 million people with disabilities in affordable and accessible private residences or 'apartments and an additional 100,000 to 500,000 irr group homes. I recognize that many jurisdictions currently handle requests by people with disabilities for relief from the strict terms of their zoning ordinances pursuant to existing variance or conditional use permit procedures. I also recognize that several courts called upon to address the matter have concluded that requiring people with disabilities to utilize existing, non- 3See Tootelian & Gaedeke, The Impact of Housing Availability, Accessibility, and Affordability On. People With Disabilities (April 1999) at <http://www.calsilc.org/housing.html> [as of February 27, 2001]. 'The lower projections are based on the assumption that the percentage of California residents with disabilities will remain constant over time, at approximately 19 percent (i.e., one in every five) overall, with about 9.2 percent having severe disabilities. The higher figures, reflecting adjustments for the aging of the state's population and the higher proportion of the elderly who are disabled, assume that these percentages will increase to around 28 percent (i.e., one in every four) overall, with 16 percent having severe disabilities. (Ibid.) 'These are: Alameda, Contra Costa, Los Angeles, Orange, Riverside, Sacramento, San Bernardino, San Diego, and Santa Clara. (Ibid.) 7 The Honorable Godfrey Pernell May 15, 2001 Page 3 discriminatory procedures such as these is not of itself a violation of the FHA.' Several considerations counsel against exclusive reliance on these alternative procedures, however. Chief among these is the increased risk of wrongfully denying a disabled applicant's request for relief and incurring the consequent liability for monetary damages, penalties, attorneys' fees, and costs which violations of the state and federal fair housing laws often entail.'. This risk exits because the criteria for determining whether to grant a variance or conditional use permit typically differ from those which govern the determination whether a requested accommodation is reasonable within the meaning of the fair housing laws! Thus, municipalities relying upon these alternative procedures have found themselves in the position of having refused to approve a project as a result of considerations' which, while sufficient to justify the refusal under the criteria applicable to grant of a variance or conditional use permit, were insufficient to justify the denial when judged in light of the fair housing laws' reasonable accommodations mandate. (See, e.g., Hovson's Inc. v. Township of Brick (3rd Cir. 1996) 89 F.3d 1096 (township found to have violated the FHA's reasonable accommodation mandate in refusing to grant a conditional use permit to allow construction of a nursing home in a "Rural Residential —Adult Community Zone" despite the fact that the denial was sustained by the state courts under applicable zoning criteria); Trovato v. City of Manchester, N.H. (D.N.H. 1997) 992 F.Supp. 493 (city which denied disabled applicants permission to build a paved parking space in front of their home because of their failure to meet state law requirements for a variance found to have violated the FHA's reasonable accommodation mandate). 'See, U.S v. Village of Palatine, Ill. (7th Cir. 1994) 37 F.3d 1230, 1234; Oxford House, Inc. v. City of Virginia Beach (E.D.Va. 1993) 825 F.Supp. 1251, 1262; see generally Annot. (1998) 148 A.L.R. Fed. 1, 115-121, and later cases (2000 pocket supp.) p. 4.) See 42 U.S.C. § 3604(f)(3)(B); Gov. Code, §§ 12987(a), 12989.3(1). Under the FHA, an accommodation is deemed "reasonable" so long as it does not impose "undue financial and administrative burdens" on the municipality or require a "fundamental alteration in the nature" of its zoning scheme. (See, e.g., City of Edmonds v. Washington State Bldg Code Council (9th Cir. 1994) 18 F.3d 802, 806; Turning Point,. Inc. v. City of Caldwell (9th Cir. 1996) 74 F.3d 941; Hovsons, Inc. v. Township of Brick (3rd Cir. 1996) 89 F.3d 1096, 1104; Smith & Lee Associates, Inc. v. City of Taylor, Michigan (6th Cir. 1996) 102 F.3d 781, 795; Erdman v. City of Fort Atkinson (7th Cir. 1996) 84 F.3d 960; Shapiro v. Cadman Towers, Inc. (2d Cir. 1995) 51 F.3d 328, 334; see also Gov. Code, § 12955.6 [explicitly declaring that the FEHA's housing discrimination provisions shall be construed to afford people with disabilities, among others, no lesser rights or remedies than the FHA].) 7 The Honorable Godfrey Pernell May 15, 2001 Page 4 Further, and perhaps even more importantly, it may well be that reliance on these alternative procedures, with their different governing criteria, serves at least in some circumstances to encourage community opposition to projects involving desperately needed housing for the disabled. As you are well aware, opposition to such housing is often grounded on stereotypical assumptions about people with disabilities and apparently equally unfounded concerns about the impact of such homes on surrounding property values.' Moreover, once triggered„ it is difficult to quell. Yet this is the very type of opposition that, for example, the typical conditional use permit procedure, with its general health, safety, and welfare standard, would seem rather predictably to invite, whereas a procedure conducted pursuant to the more focused criteria applicable to the reasonable accommodation determination would not. • For these reasons, I urge your jurisdiction to amend your zoning ordinances to include a procedure for handling requests for reasonable accommodation made pursuant to the fair housing laws. This task is not a burdensome one. Examples of reasonable accommodation ordinances are easily attainable from jurisdictions which have already taken this step10 and from various nonprofit groups which provide services to people with disabilities, among others." It is, however, an important one. By taking this one, relatively simple step, you can help to ensure the inclusion in our communities of those among us who are disabled. Sincerely, BILL LOCKYER Attorney General 'Numerous studies support the conclusion that such concerns about property values are misplaced. (See Lauber, A Real LULU.- Zoning for Group Homes and Halfway Houses Under The Fair Housing Amendments Act of 1988 (Winter .1 996) 29 J. Marshall L. Rev. 369, 3 84-3 85 & fn. 50 (reporting that there are more than fifty such studies, all of which found no effect on property values, even for the homes immediately adjacent).) A compendium. of these studies, many of which also document the lack of any foundation for other commonly expressed fears about housing for people with disabilities, is available. (See Council of Planning Librarians, There Goes the Neighborhood . . . A Summary of Studies Addressing the Most Often Expressed Fears about the Effects Of Group Homes on Neighborhoods in which They Are Placed (Bibliography No. 259) (Apr. 1990).) t0 Within California, these include the cities of Long Beach and San Jose. t t Mental Health Advocacy Services, Inc., of Los Angeles for example, maintains a collection of reasonable accommodations ordinances, copies of which are available upon request. 0C O N FI D E N T I A L RICHARDS, WATSON & GERSHON MEMORANDUM TO:. FROM: DATE: SUBJECT: Honorable Chairman and Members of the Planning Commission Kevin G. Ennis July 15, 1997 Municipal Code Violation Penalty Options At the last Planning Commission meeting, you asked for a list of options by which the City could seek to penalize contractors, architects and other professionals engaged in business in the City who violate, or cause their clients to violate, various provisions of the City's Zoning Ordinance. Specific concerns were raised regarding contractors, architects or other professionals who participate in violations of the City's restrictions on import or export of soil and constructing improvements without required approvals and in violation of specified development standards of the City. The Commission realizes that these types of violations often occur without the property owner knowing that the activity or improvement violates City laws. Thus, the Commission asked what type of penalties can be imposed on contractors and professionals rather than on property owners. Set forth below is a list of options the City could pursue to penalize contractors and professionals who violate, or cause their clients to violate, various provisions of the City's Zoning Ordinance. 1. File Complaint with Applicable Licensing Board A. Contractors For those individuals engaged in an activity that requires a contractors license, the City can file a complaint with the Registrar of Contractors ("Registrar") if the City has substantial evidence that a contractor has willfully or deliberately failed to comply with the City's laws (Business and Professions Code Section 7110). Similarly, the City can file a complaint with the Registrar for willful departure from, or disregard of, plans or specifications. Once a complaint is filed, the Registrar is required to investigate the complaint and, if the Registrar finds that there was a violation, impose one of several types of discipline on the CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. CONFIDENTIAL AL RICHARDS, WATSON & GERSHON, MEMORANDUM Honorable Chairman and Members of the Planning Commission July 15, 1997 Page 2 contractor (Section 7090). Discipline can range from a citation and a civil fine (Section 7099) to the imposition of conditions on the contractor, suspension or revocation of the contractor's license (Section 7095). If the City decides to pursue this option, the City would need to produce sufficient facts and evidence to support a finding that the contractor willfully and deliberately violated the City's law. This would require some proof that the contractor knew about the City's specific law and willfully or deliberately violated it. It is unclear how the Registrar would respond to a first complaint and how seriously that office pursues these matters. However, if the contractor already has prior complaints filed against him or her, it is possible the Registrar would pursue the imposition of stiff penalties. B. Architects The California Board of Architectural Examiners ("Board") may discipline architects for certain serious violations of law. In order to enable the Board to discipline an architect, the licensee must be found guilty of fraud, negligence, incompetency or recklessness in the practice of architecture (Business and Professions Code Section 5583, 5584 and 5585). Unlike provisions regulating contractors, the violation of local zoning laws is not specifically listed as a basis for the Board to discipline an architect. However, the failure of an architect to properly advise his or her client about the City's requirements may constitute a basis for the City to allege that the architect was negligent or reckless in the practice of his or her profession. Complaints may be filed with the Board by any person (Section 5560). Upon receipt, the Board shall investigate the architect. If the Board finds the architect did violate a provision of the licensing laws, the Board may impose a civil penalty, the amount and extent of which depends upon the gravity of the violation (Section 5566.1). In addition, the Board may suspend or revoke a license for serious violations of the licensing laws. C. Engineers The disciplinary process for Engineers is similar to that of architects. The entity responsible for licensing and disciplining engineers is the Board of Registration for Professional Engineers and Land Surveyors (Business and KGE:dcs R6980-00303 1682963 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. RICHARDS, WATSON & GERSHOO MEMORANDUM (C O N F I D E N T I A L4 Honorable Chairman and Members of the Planning Commission July 15, 1997 Page 3 Professions Code Section 6710). That body may receive and hear complaints and impose discipline upon a licensed engineer for "deceit, misrepresentation, violation of contract, fraud, negligence or incompetency in practice." (Section 6775). Available penalties include suspension, revocation or public or private reproval (Section 6775). 2. Misdemeanor Prosecution of Contractors. Although most Zoning Code provisions impose requirements on property owners, Section 1.08.010 of the Rolling Hills Municipal Code provides that any person violating any provision or failing to comply with any of the mandatory requirements of the ordinances of the City, shall be guilty of a misdemeanor, unless the violation is made an infraction by ordinance. Sections 17.16.230 and 15.04.150 provide that no export or import of soil shall be permitted from or to any lot in the City. Pursuant to the general penalty provisions of Section 1.08.010, any person violating this provision would be guilty of a misdemeanor. Thus, if a contractor, property owner or both caused the violation of this provision, each could be prosecuted for violation of the Section. Prosecution of a violation of this Section is accomplished by having the District Attorney file a misdemeanor complaint against the contractor. Often these types of matters are resolved in a "civil compromise" by which the offender pays a fine to the court and is placed on probation. Subsequent violations are often handled more seriously by the courts. 3. Impose Requirement for the Posting and Forfeiture of an Additional Grading Bond for Contractors The County of Los Angeles currently requires a grading bond be posted to ensure completion of the grading improvements. When the grading is completed and certified by a civil engineer, the bond is released. If grading is not completed, or not properly completed, the County can withhold release of the bond until proper completion, or seek to redeem the bond and cause the work to be completed with the bond proceeds. In addition to these typical grading bonds, the City could impose a requirement for a specific penalty bond to be KGE:dcs R6980-00303 1682963 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY-CUENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. ICONFIDENTIAL RICHARDS, WATSON & GERSHO, MEMORANDUM Honorable Chairman and Members of the Planning Commission July 15, 1997 Page 4 posted by every grading contractor prior to commencement of a specific project. In the event the work is not completed in compliance with the Code the City could bring suit to collect on the bond. This option is problematic because it would operate much like a civil penalty provision but is not the type of - sanction state law specifically authorizes for civil penalties. State law authorizes the City to adopt civil penalties for violation of its Code. These penalties are required to be in the form of cash payments for each citation and are limited by state law to a maximum of $300 for a violation. There would be a risk that contractors forced to comply with a penalty bond requirement may seek to test the validity of the approach as being beyond the scope of the City's authority. We are aware of no court that has ruled on the legality of a penalty bond approach in this context. If the City is interested in pursuing this option, we will further research the likelihood of a successful challenge to this type of program. If you have any questions regarding this matter, please do not hesitate to contact me. cc: Lola Ungar, Planning Director Craig Nealis, City Manager KGE:dcs R6980-00303 1682963 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. F5141 • x' GLENN R. WATSON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON ERWIN E. ADLER DAROLD D. PIEPER ALLEN E. RENNETT STEVEN L DORSEY WILUAM L STRAUSZ ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WILLIAM B. RUDELL DAVID L COHEN QUINN M. BARROW CAROL W. LYNCH JEFFREY A. RABIN GREGORY M. KUNERT THOMAS M. JIMBO MICHELLE BEAL BAGNERIS AMANDA F. SUSSKIND ROBERT C. CECCON SAYRE WEAVER STEVEN H. KAUFMANN GARY E. GANS JOHN J. HARRIS KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA LAURENCE S. WIENER STEVEN R. ORR MICHAEL G. COLANTUONO C. EDWARD DILKES DEBORAH R. HAKMAN SCOTT K SHINTANI B. TILDEN KIM RUBIN D. WEINER SASKIA T. ASAMURA KAYSER O. SUME CRAIG A. STEELE T. PETER PIERCE AUSON E. MAKER BENJAMIN BARNOUW TERENCE R. BOGA DOUGLAS A. CARLEN DANIEL. L PINES USA M. BOND WINNIE TSIEN JENNIFER L HART DIANE ARKOW ROXANNE M. DIAZ RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW , A PROFESSIONAL CORPORATION April 30, 1996 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Mr. Craig Nealis City Manager City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 Re: Administrative Penalties Ordinance RICHARD RICHARDS (1916-1988) THIRTY-EIGHTH FLOOR 333 SOUTH HOPE STREET LOS ANGELES, CALIFORNIA 90071-1469 (213) 626-8484 FACSIMILE (213) 626-0078 OF COUNSEL WILUAM K KRAMER 0565416 OUR FILE NUMBER R6980-00001 E MAY 0 1 1996 CITY OF ROLLING HILLS By Dear Craig: Following your review of our letter of January 22, 1996, informing you of new State legislation allowing imposition of civil penalties in lieu of criminal prosecution of Municipal Code violations, you directed me to prepare.a draft ordinance implementing the new law. A draft of that ordinance is enclosed for your review and comment. In this letter, I will summarize the key provisions of the ordinance and explain a number of the policy choices which are reflected in the ordinance which you may wish to modify. Preliminarily, in order to complete the ordinance, we will need a list of those Muncipal Code sections which you want to be enforced with civil, rather than criminal, penalties. Also, please include with that list a proposed penalty schedule for each violation. As proposed, the ordinance contemplates a penalty with two components: 1) a component representing a reimbursement to the City for its costs in issuing the citation, and 2) a component, which should be higher, representing the actual penalty; you may want to include a penalty schedule which provides that the penalty increases in the event of multiple violations (i.e. $X for the first violation, $XX for the second and $XXX for the third and following). Please provide me this information when you return your comments on the draft ordinance. RICHARDS,• WATSON & GERSHON . Y CONFIDENTIAL• Mr. Craig Nealis April 30, 1996 Page 2 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. In addition, existing Section 1.08.020 sets forth the penalties for misdemeanors and infractions; as currently written, these penalties are lower than permitted by State law. In this ordinance, I have taken the liberty of increasing them to the maximums permitted by law. If you prefer, these may remain as is. The enclosed draft contains the following elements: 1. It reorganizes existing Code sections as necessary to include the new civil penalty provisions as a thirdtype of violation, supplementing the two existing types of violations (misdemeanors and infractions). 2. It provides that any person assessed a civil penalty three times in any year for the same violation is thereafter (within the same year) guilty of a misdemeanor for committing the same violation. This is entirely optional and not explicitly authorized by the State legislation. It was suggested by code enforcement officers in another city I represent, as a means of dealing with persistent violators in response to our advice that it would not be lawful to allow the code enforcement officer the discretion, in each instance, to decide whether to enforce a particular violation criminally or civilly (i.e. a "wobbler" designation). Because this provisions is not authorized, it is vulnerable to challenge. You may want to exclude it. My feeling is that it stands a better chance of passing muster than a wobbler provision, will be exercised rarely, and thus, will likely not present a serious legal problem. 3. It adds several definitions which apply to both criminal penalties and the new civil penalty procedures. 4. It provides three alternative responses by a person to whom a citation is issued; this is an entirely optional procedure driven by two considerations: a desire to discourage. requests for administrative hearings and a preference for giving incentives for the violator to cure the violation over punishment. In some respects, this procedure goes beyond what is contemplated by the State legislation, but it certainly seems compatible with and a fair implementation of the legislation. After receiving a citation, the first alternative is payment of the fine without seeking a hearing; this furthers the goal of discouraging requests for hearings. The second alternative is to remedy the violation and pay only the administrative reimbursement portion of the penalty, which should be the smaller monetary component of the penalty; this furthers the goal of achieving Code compliance by providing a financial RICHARDS, WATSON & GERSHON CONFIDENTIAL Mr. Craig Nealis April 30, 1996 Page 3 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. incentive to the violator (i.e. it offers a way to avoid paying the larger fine). Finally, the violator may contest the citation by requesting a hearing. If you prefer, the ordinance can be restructured to eliminate the second alternative above or to require a hearing in all instances. This decision is entirely dependent on your particular code enforcement situation. 5. It provides that when requested, hearings will be conducted by a hearing officer appointed by the city manager. It. will be preferable to engage an independent party to conduct these hearings; and may be advantageous to do so in concert with neighboring cities. State law requires that decisions of the hearing officer be appealable to the Municipal Court, and the ordinance so provides. 6. It allows• violators to appear at hearings either in person or in writing. I look forward to receiving your comments and your list of Code sections and proposed penalty schedule. Please call me should you have any questions regarding the draft ordinance. yours, - Michael Jenki MJ:mj 0565416 • . ' • ORDINANCE NO. 96 - AN ORDINANCE_OF THE CITY OF ROLLING HILLS ESTABLISHING ADMINISTRATIVE PROCEDURES AND CIVIL PENALTIES FOR VIOLATIONS OF ORDINANCES OF THE CITY AND AMENDING THE ROLLING HILLS MUNICIPAL CODE THE CITY COUNCIL OF THE CITY OF ROLLING HILLS DOES ORDAIN AS FOLLOWS: SECTION 1. Title I, Chapter 1.08 of the Rolling Hills Municipal Code is amended to read as follows: Chapter 1.08 GENERAL PENALTY PROVISIONS AND DEFINITIONS* No person shall violate any provisions or fail to comply with any of the requirements of the ordinances of this City. Violations of the ordinances of this City are punishable as set forth in Chapters 1.08, 1.12, and 1.13. Sections:. 1.08.010 Violation --Misdemeanor when. 1.08.020 Violation --Penalty. 1.08.030 Code Violations Subject to Administrative Penalty Procedures Pursuant to Chapter 1.12. 1.08.040 Administrative Penalty. 1.08.050 Administrative Citations Which May Be Treated as Misdemeanors. 1.08.010 Violation --Misdemeanor when. Any person violating any provision or failing to comply with any of the mandatory requirements of the ordinances of the City, shall be guilty of a misdemeanor, unless such violation or failure to comply is expressly stated by the ordinance of the City to be an infraction or is subject to a civil administrative penalty pursuant to section 1.08.030 of this Chapter. * For statutory provisions authorizing cities to impose fines up to five hundred dollars or imprisonment up to six months, or both such fine and imprisonment, see Gov. Code §36901; for statutory_ provisions authorizing cities to designate violations as "infractions" which carry a lower penalty, see Gov. Code §36900; for statutory provisions authorizing cities to impose administrative penalties, see Gov. Code §53069.4. 1.08.020 Violation --Penalty. A. prescribed by a misdemeanor punishable by dollars or by such fine and Except in cases where a different punishment is any ordinance of the City, any person convicted of for violation of an ordinance of the City is a fine of not more than one thousand ($1,000.00) imprisonment not to exceed six months, or by both imprisonment. B. Any person convicted of an infraction for viola- tion.of an ordinance of the City, is punishable by: 1. A fine not exceeding one hundred ($100.00) dollars for a first violation; 2. A fine not exceeding two hundred ($200.00) dollars for a second violation of the same ordinance within one (1) year; 3. A fine not exceeding five hundred ($500.00) dollars for each additional violation of the same ordinance within one (1) year. C. Each such person shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of the ordinances of the City is committed, continued, or permitted by any such person, and he shall be punishable accordingly. 1.08.030 Code Violations Sub-ject to Administrative Penalty Procedures Pursuant to Chapter 1.12. The following: offenses are subject to the provisions of Chapter 1.12: 1.08.040 Administrative Penalty. An administrative' penalty shall be assessed by means of an administrative citation issued by the Enforcement Official as defined in section 1.13.010(A) of this Title, and shall be payable directly to the City Treasurer. Penalties shall be set forth in a penalty schedule established by resolution of the City Council. A portion of each penalty shall constitute reimbursement for the City's administrative expenses in issuing and processing the citation. Penalties shall be collected in accordance with the procedures specified in,Chapter 1.13 of this Title. Payment of a penalty shall not excuse the failure to correct the violation nor shall it bar further enforcement action by the City. 1.08.050 Administrative Citations Which May Be Treated as Misdemeanors. Any person who violates any provision or fails to comply with any of the requirements of the ordinances of the 960404 R6980-00001 dcs 1450292.1 0 - 2 - • • City set forth in section 1.08.030 and who is assessed an administrative penalty for violating or failing to comply with the same ordinance of the City more than three (3) times within a twelve (12) month period shall be guilty of a misdemeanor each violation committed thereafter within that same twelve (12) month period. SECTION 2. Title I, Chapter 1.13 of the Rolling Hills Municipal Code is added to read as follows: Chapter 1.13 ADMINISTRATIVE PENALTY PROCEDURE Sections: 1.13.010 Definitions. 1.13.020 Service Procedures for Issuing Administrative Citations. 1.13.030 Contents of Administrative Citations. 1.13.040 Satisfaction of Administrative Citations. 1.13.050 Administrative Hearings and Appeal Process 1.13.010 Definitions. The following words and phrases when used in this Chapter shall have the following meanings ascribed to them: A. "Enforcement Official". Any person authorized to enforce the ordinances of the City of Rolling Hills. B. "Legal interest". Any interest that is represented by a deed of trust, quitclaim deed, mortgage, judgment lien, tax or assessment lien, mechanic's lien or other similar instrument, which is recorded with the County Recorder. C. - "Person"/"Responsible Person/Party". Any individual or entity who an Enforcement Official determines is responsible for causing or maintaining a violation of this Code, or applicable state codes or causing or maintaining a public nuisance. The terms "person", "responsible person" or "responsible party" include but are not limited to a property owner, tenant, person with a legal interest in real property or person in possession of real property, the president or other head of a corporation or a person authorized by a corporation to receive service of process in a civil action, a business owner or manager of a business. 960404 R6980-00001 dcs 1450292.1 0 - 3 - 1.13.020 Service Procedures for Issuing Administrative Citations. An administrative citation in a form approved by the City Manager may be issued to the responsible party by an Enforcement Official for violations of those Sections set forth in section 1.08.030 of Chapter 1.08 in the following manner: A. Personal Service of Administrative Citation. In any case where an administrative citation is issued to an individual, corporation, or a business, the Enforcement Official shall attempt to: business person or signature which the business, 1. Locate the individual, corporation or and serve the administrative citation to the responsible party. 2. Obtain on the administrative citation the of the person in violation of this Code, or in cases in violation of a City ordinance is by a corporation or the signature of the responsible person or party. 3. If the responsible person or party served refuses or fails to sign the administrative citation, the failure or refusal to sign shall not affect the validity of the citation or of subsequent proceedings. B. Service of Citation by Mail. If the Enforcement Official is unable to locate the responsible person for the violation, the administrative citation shall be mailed to the responsible person by certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice may be sent by regular mail. If a notice sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned. C. Service of Citation by Posting Notice. If the Enforcement Official doesnot succeed in serving the responsible party personally, or_by certified mail or regular mail, the Enforcement Official shall post the administrative citation on any real property within the City in which the. City has knowledge that the responsible party has a legal interest, and such posting shall be deemed effective service. D. Service of Citation by Publication. If the Enforcement Official does not succeed in serving the responsible party personally, by certified mail or regular mail, and the City is not aware that the responsible party has a legal interest in any real property within the City, the Enforcement Official shall cause the administrative citation to be published in a newspaper likely to give actual notice to the responsible party. The publication shall be once a week for four successive weeks in a newspaper published at least once a week. 960404 R6980-00001 dcs 1450292.1 0 - 4 - • - • 1.13.030 Contents of Administrative Citations. Administrative citations shall contain all of the following information: A. The date and location of the violation and the approximate time the violation was observed. B. The City ordinance violated and a description of how the section was violated. C. The action required to correct the violation. D. The consequences of failing to correct the violation. E. The amount of penalty imposed for the violation. F. ,Information regarding the procedure to contest the citation. G. The signature of the Enforcement Official, and the signature of the responsible person if that person can be located and will sign the citation, as set forth in Section 1.13.020. 1.13.040 Satisfaction of Administrative Citations. Upon receipt of a citation, the responsible party must: A. Pay the fine. Payment of the fine waives the responsible party's right to the administrative hearing and appeal process pursuant to Section 1.13.050; or B. Remedy the violation within the time indicated on the citation and upon providing proof of correction to the Enforcement Official, pay only the administrative reimbursement portion of the citation; or C. Request an administrative hearing no earlier than fifteen (15) days after service of the citation and no later than ninety (90) days after service of the citation to contest the citation. 1.13.050 Administrative Hearings and Appeal Process. A. Time for Administrative Hearing. Upon request, the City shall promptly conduct •an administrative hearing. The hearing shall occur no earlier than fifteen (15) days after service of the citation and no later than ninety (90) days after service of the citation to contest the citation. B. Appointment of Administrative Hearing Official. The hearing shall be conducted by an Administrative Hearing Official appointed by the City Manager to perform such hearings. 960404 R6980-00001 dcs 1450292.1 0 • 4 • C. Request for Continuance of Hearing. The responsible person may request one continuance of the hearing, but in no event may the hearing begin later than ninety (90) days after service of the administrative citation upon the responsible person. D. Procedures at Administrative Hearing. Administrative hearings are informal, and formal rules of evidence and discovery do not apply. Each party shall have the opportunity to present evidence in support of his or her case and to cross-examine witnesses. The City bears the burden of proof at an administrative hearing to establish a violation. The citation is prima facie evidence of the violation. The Administrative Hearing Official shall use preponderance of the evidence as the standard of evidence in deciding the issues. E. Failure to Attend Administrative Hearing. The responsible person may attend the hearing in person or in writing. If the responsible person fails to attend the scheduled hearing or fails to submit arguments in writing, the hearing will proceed without the responsible person, and he or she will be deemed to have waived his or her right to an administrative. hearing. Notwithstanding this waiver and the time limits set forth in paragraph a. of Section 1.13.050, if service of the administrative citation is made by posting the citation on real property within the City in which the responsible person has a legal interest, and the responsible person provides verifiable and substantial evidence that removal of the citation from the property by a third party caused the responsible person's failure to attend the scheduled hearing, the responsible person shall be entitled to an administrative hearing. F. Decision of Administrative Hearing Official. The administrative hearing official shall issue a written decision entitled "Administrative Order" no later than fifteen (15) days after the date on which the administrative hearing concludes. The Administrative Order shall be served upon the responsible person by any one of the methods set forth in Section 1.13.020 of this Chapter. The Administrative Order shall become final on the date of service, and shall notify the responsible person of his right to appeal as provided in paragraph h of this Section. The Administrative Order shall also set a deadlinefor compliance with its terms in the event that the responsible person fails to file an appeal. If the violation is a continuing violation of the City's building, plumbing, electrical, or zoning code, the Administrative Order shall provide that the responsible person has 30 days from receipt of the Administrative Order to correct the violation, and that if the violation is corrected within that time, no penalty will be imposed. 960404 R6980-00001 dcs 1450292.1 0 - 6 - • • G. Failure to Comply With Administrative Order. Failure to comply with a final Administrative Order is a misdemeanor. If the municipal court rules in favor of the City or if the responsible person fails to timely file a notice of appeal in the municipal court, and the responsible person then fails to comply with the Administrative Order, the City may file a criminal misdemeanor action against the responsible person. Filing a criminal misdemeanor action does not preclude the City from using any other legal remedy available to gain compliance with the Administrative Order. H. Appeal of Administrative Order. Within 20 days after service of the Administrative Order upon the responsible person, he or she may seek review of the Administrative Order by filing a notice of appeal with the municipal court. The responsible person shall serve upon the City Clerk either in person or by first class mail a copy of the notice of appeal. If the responsible person fails to timely file a notice of appeal,. the Administrative Order shall be deemed final. PASSED, APPROVED and ADOPTED this day of , 1996. MAYOR ATTEST: CITY CLERK 960404 R6980-00001 dcs 1450292.1 0 - 7 - JAN -10-1997 11:51 RICHARDS, WATSON LR#3 • • 213 626 0078 P.02/04 GLENN R. WAT80N ROOCRT O. OCV6RLY MARA./7, GCRLIMON DOUGLAS W. ARGUC MASK L LAMKEN ERWIN E. AMER DAROLD D. PIEPER ALLEN E. RENNETT OTCVEN L. DORSEY WILLAM L GTRAU62 ANTHONY 6. ORCWRY MITCHELL E. ABBDYr TIMOTHYL NEUFELO GREGORY W, 3TEPANICICH ROCMCLLC EROWNC MICMAO-JCNKJNEI WILLIAM B. Rt./DELL GUINN M. BARROW CAROL W. LYNCH JEFFREY A. RABIN GREGORY M. KUNERT TMOMA3 M. JIMDO MICMCLC MEAL EA6NCRI6 AMANDA P. 8U88KIND ROBERT C. CECCON 3AYRE WEAVER OTLVCN M. KAUFMANN GARY G MANE JOHN J. HARRIS KEYIN O. ENNIS RO®IN D. HARRIS MICHAEL. 6.:TRAOA LAURCNCC 6. WIENER_ er£vEN R ORR MICHAEL O. COLANTUONO C. EDWARD DILCEB PETER M. THOR80N BRENDA L DIEDERICMS D660RAN R. MAILMAN TILOCN KIM RUMN D. WCINCR 8A2KUL T. ABAMJRA KAY3ER O. SOME IaALIL JAFFG RE..ACCCA MARIE MADRID CRAIG A. STEELE T. PETER PIERCE DAVID ROBERT DANIELS BENJAMIN BARNOUW TERENCE R BOOA DANK.. L. AIN$.7 LEA 6OND O1ANE ANKOW CRONE ROY A. CLARKE ROXANNE DIAZ MONTGOMERY ROBERT A. 6ALDUCNA ERIKA M. rLCMINO OLNIA WAI-WEN BUAN RICHARDS, WI ATSON & GERSHON ATTjbNNEYS AT LAW A PROF TONAL, CORPORATION Jant.ary 9, 1997 CO I'NFIDEN'TIAL THIS MTERIAL IS SUBJECT TO THE ATTORNEY -CLIENT ANO/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF- DO NOT FILE WITH PUBLICLY ACCESSIBLE FIECORDs. Mayor Murdock and Members o City Council City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California • Reference: he. 90274 Protocol the Proje Road (Mur RICHARD RICHARDS (1916-19Da) THIRTY-EIGMTN FLOOR 333 SOUTH MOPE STREET LOS ANGELES, CALIFORNIA 90071-1489 (213) 828.8484 I'AOSIMiLE (213) 828.0078 OF COuN0EL WILLIAM K KRAMER 1682680 OUR FILE NUMBER R6980-00303 or City Council Field Trip to view t at 10 Upper Blackwater Canyon ay Smith) Dear Mayor Murdock and Member of the City Council: Craig Nealis inform me that at an upcoming City Council meeting, the City Cou cil may decide to schedule a field trip to view the project curr ntly under construction at 10 Upper Blackwater Canyon Road. The burpose of the field trip would be to determine how the approved Site Plan for the project has been implemented and to better and rstand the concerns of some neighbors regarding the impact of the completed building pad on their view and privacy. This letter is inte ded to explain the scope of the City Council's authority and mole with respect to the project at this stage in the construction. process. Because all discretionary approvals are npw final, the Council does not have a formal role in the implementation of the project; for that reason, the rules differ _from those that apply when. a discretionary project is unde Council consideration. 1 1. Access to Prop rty The City Council do s not have independent authority to walk onto the subject propert without the property owner's consent. Thus, if Mr. Smith refers not to be involved in the field trip meeting and not to allow the City Council to view his property from on his property the City Council must look at the JAN -10-1997 11:52 RICHARDS, WATSON LA#3 213 626 0078 P.03/04 RICHARDS, WATSON & GERSHON • Rolling Hills City Council January 9, 1997 Page 2 CONFODENTIAL THIS MATERIAL 13 SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. property from the street, the Association easements, and from other surrounding properties hose owners consent to entry onto their properties. 2. Authority to R vise Site Plan Approval Except as explained below, the City Council does not have the authority to revise the approved Site Plan for the project and to compel alterations in that Plan at this point in the process. This is because the City's approval of the Site Plan became final some time a o.and grading permits have been issued for work in connection with the project. The City may requir changes to the approved Site Plan only under certain conditions Those conditions are if the Building Official determines hat the project, as partially constructed, does not comply that the project, as part±ally constructed, does not comply ith the approved Site Plan and the owner decides to request a mo ification to'the Site Plan to accommodate the alteration ingtead of reconfiguring the project to conform to the Plan as originally approved. If a modification o application would be subject approval if the modification require referral to the Plann City Manager is authorized by Hills Municipal Code to deter "minor" or "major." If the project invo building pad than originally conclude that the modificatio of the Site Plan approval and subject to his approval. On or the quantity of grading ex approved Site Plan, the City alteration was "major." In t: have to regrade the site to c originally approved or reques accommodate the alteration. If a modification t requested, the City Manager o upon whether the modification authority to consider reasona modification requested. The limited to addressing the eff in extraordinary circumstance on other aspects of the proje other portions of the approve the Site Plan is requested, the o the City Manager's review and as "minor." Otherwise, it would ng Commission for approval. The Section 17.46.070 of the Rolling ine whether the modification is ves less grading or a lower pproved, the City Manager may would be within the overall grant would be a minor modification he other hand, if the area graded eeds that authorized by the anager could decide.that the at case, the owner would either nform to the Site Plan as a modification to the Site Plan to the approved Site Plan is the Planning Commission, depending was "minor" or "major," would have le conditions to address the cope of those conditions would be ct of the modifications and, except where the modification had effects t, would not include a redesign of Site Plan. JAN -10-1997 11:52 RICHARDS, WATSON LA#3 213 626 007E P.04/04 411CHARDS, WATSON & GERSHON • Rolling Hills City Council January 9, 1997 Page 3 CON AL E N T 1 A L THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WmfH PUBLICLY ACCESSIBLE RECORDS. Lastly, if the proj ct is not constructed in accordance with the original Site Plan, r the Site Plan as subsequently modified, the Building Offici 1 is not authorized to issue a certificate of occupancy or tc approve the connection of utilities to the site (Rolling Hills Municipal Code Section 17.46.100.) If you have any que do not hesitate to contact me cc: MJ:KGE:kge 1692680 ions regarding this matter, please Craig Nealis, City Manager Lola Ungar, Principal Planner Kevin G. Ennis, Assistant City Attorney TOTAL P.04 GLENN R. WATSON. ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON ERWIN E. ADLER DAROLD D. PIEPER ALLEN E. RENNETT STEVEN L DORSEY WILUAM L STRAUSZ ANTHONY B. DREWRY .MITCHELL E. ABBOTT TIMOTHY L NEUFELD GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WILLIAM B. RUDELL QUINN M. BARROW CAROL W. LYNCH JEFFREY A. RABIN GREGORY M. KUNERT THOMAS M. JIMBO MICHELE BEAL BAGNERIS AMANDA F. SUSSKIND ROBERT C. CECCON SAYRE WEAVER STEVEN H. KAUFMANN GARY E. GANS JOHN J. HARRIS KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA LAURENCE 8. WIENER STEVEN R. ORR MICHAEL G. COLANTUONO C. EDWARD DILKES PETER M. THORSON DEBORAH R. HAKMAN SCOTT K. SHINTANI B. TILDEN KIM RUBIN D. WEINER SASKIA T. ASAMURA KAYSER O. SOME CRAIG A. STEELE T. PETER PIERCE AUSON E. MAKER BENJAMIN BARNOUW TERENCE R. BOLA DOUGLAS A. CARLEN DANIEL L PINES USA M. BOND WINNIE TSIEN JENNIFER L HART DIANE ARKOW ROXANNE M. DIAZ • RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A PROFESSIONAL CORPORATION May 31, 1996 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Lola Ungar Principal Planner City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 Re: Extension of Deadline for Housing Dear Lola: I write to inform you that Governor Wilson has signed Senate Bill 1073 into law and the bill was chaptered on May 6, 1996 as Chapter 39 of the Statutes of 1996. The bill is an urgency measure and therefore took immediate effect. Under this new statute, the deadline for the next update of the City's housing element has been delayed from June 30, 1996 to June 30, 1998. RICHARD RICHARDS (1916-1988) THIRTY-EIGHTH FLOOR 333 SOUTH HOPE STREET LOS ANGELES, CAUFORNIA 90071-1469 (213) 626-8484 FACSIMILE (213) 626-0078 OF COUNSEL W1LUAM K KI AMER. 1682422 OUR FILE NUMBER P6399-00001 JUN 0 3 1996 c Ir OF ROLL HILLS Element Update (S.B. 1073; ch. 39, Stats. of 1996) As you know, the Legislature has failed to fund the state -mandated program for housing �elements nsince sthe Governmentsadoption havethe 1992-93 State Budget. Therefore, have not prepared Regional Housing Needs Assessments (RHNA's) and many cities and counties have not prepared updated housing elements. Due to the Governor's veto of a bill passed in the last session to extend the June 30, 1996 deadline for the SCAG region, the State Department of Housing and Community Development (HCD) took the position that SCAG-region cities and counties were obliged to update their elements by June 30, 1996. The adoption of SB 1073 eliminates any doubt that the City may defer an update of its element for two years. In the meantime, the City's duties are those spelled out by Government Code Section 65588.1. That section requires the City to continue to implement the housing program of the RICHARDS, WATSON & GERSHON • CO N !1 E NTIAL Lola Ungar City of Rolling Hills May 31, 1996 Page 2 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. existing element and to annually review implementation of the element as required by Government Code Section 65400. ,Note that AB 3125, which would modestly reform the housing eement statute to allow marginally greater flexibility in the counting of units towards the City's housing goal, is slated for consideration by the Assembly soon. We will continue to monitor developments in this area of the law and update you as warranted. In the meantime, please call me if you have any questions or concerns about this subject. Very truly yours, Kevin G. Ennis KGE:eeh cc: Craig Nealis, City Manager Michael Jenkins, City Attorney 1682422 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A PROFESSIONAL CORPORATION GLENN R. WATSON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON ERWIN E. ADLER DAROLD D. PIEPER ALLEN E. RENNETT STEVEN L DORSEY WILLIAM L STRAUSZ ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WILLIAM B. RUDELL DAVID L COHEN QUINN M. BARROW CAROL W. LYNCH JEFFREY A. RABIN GREGORY M. KUNERT THOMAS M. JIMBO MICHELLE BEAL BAGNERIS AMANDA F. SUSSKIND ROBERT C. CECCON SAYRE WEAVER STEVEN H. KAUFMANN GARY E. GANS JOHN J. HARRIS KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA LAURENCE S. WIENER C. EDWARD DILKES STEVEN R. ORR DEBORAH R. HAKMAN SCOTT K SHINTANI MICHAEL G. COLANTUONO TERRY P. KAUFMANN MACIAS B. TILDEN KIM RUBIN D. WEINER SASKIA T. ASAMURA KAYSER O. SUME CRAIG A. STEELE T. PETER PIERCE ALISON E. MAKER BENJAMIN BARNOUW TERENCE R. BOGA DOUGLAS A CAREEN DANIEL L PINES USA MARIE BOND WINNIE TSIEN JENNIFER L HART DIANE ARKOW ROXANNE M. DIAZ January 18, 1996 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Mayor Pernell and Members of the City Council City of Rolling Hilis 2 Portuguese Bend Road Rolling Hilis, California 90274 RICHARD RICHARDS (1916-1988) THIRTY-EIGHTH FLOOR 333 SOUTH HOPE STREET LOS ANGELES, CAUFORNIA 90071-1469 (213) 626-8484 FACSIMILE (213) 626-0078 OFCOUNSEL WILUAM K KRAMER 1682250 OUR FILE NUMBER R6980-00303 -1-3)1gEllWEIT) JAN 2 2 1996 CITY OF ROLLG HILLS By Reference: Options for Processing Dr. Marshall's Application for Tentative Subdivision Map 23991 (17 Portuguese Bend Road) Honorable Mayor and Members of the City Council: At your last meeting, you received the Planning Commission's recommendation regarding Dr. Robert Marshall's request for a two -lot subdivision of property located at 17 Portuguese Bend Road. That recommendation, as specified in Planning Commission Resolution No. 95-21, was to deny the application. At that January 8, 1996 City Council meeting, representatives of Dr. Marshall stated their intent to submit a revised plan that they hoped would more fully satisfy the City's concerns. That revised plan has now been submitted to the City. You asked for ouradviceon the options available to the City Council for handling this application and the revised plan. Option One - Act on Application as Previously Submitted and Reviewed by the Planning Commission The City Council may refuse to accept any modification of the proposed subdivision application at this time. Submittal of a revised version of the proposed. map could be found by the City Council to be untimely since the Planning Commission has already considered the application based upon an earlier ,submitted plan. The City Council could then proceed to take action on the Negative Declaration and then approve or deny the RICHARDS, WATSON & GERSHON CONFIDENTIAL City of Rolling Hills January 18, 1996 Page 2 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT.PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Planning Commission's version of the application. The City Council could make its action without prejudice, so that the applicant could immediately reapply with a new application. The benefit of this approach is that it disposes of the current application now one way or the other. Instead of waiting for additional staff review on this same application, and potentially additional Planning Commission review of the matter, this application would terminate. If the map is denied, a new application, with new fees and new time lines for processing the application under the California Environmental Quality Act (CEQA), the Subdivision Map Act and the City's Subdivision Ordinance would then apply to the resubmittal. Under the City's Subdivision Ordinance, the City Council is required to act on the application for a tentative map at the meeting following the meeting at which the application was presented to it (Rolling Hills Municipal Code Section 16.12.120), unless extended with the consent of the applicant. Since the application was presented to the City Council on January 8, 1996, the City Council is required to act on the application at its upcoming meeting on January 22, 1996, unless the applicant agrees, on the record and later in writing, to an extension of that time period. With respect to the City's other deadlines for acting on this application, the City is authorized under CEQA to take 105 days to adopt a Negative Declaration for this project. The timefor acting on the Tentative Map itself does not start to run under the Subdivision Map Act until the Negative Declaration or other appropriate environmental document is adopted (Government Code Section 66452.2(c).). The City will have already expended more than that amount of days (approximately 186 days as of January 22, 1996) in processing the Negative Declaration. Therefore, there is a risk that the applicant could seek judicial action to force the City to act on the Negative Declaration. However, the Tentative Map would not be deemed approved by operation of law until at least 30 days after the City adopted, or was forced to adopt, the Negative Declaration (Government Code Section 66452.2(a)).' This First Option would also be consistent with a Policy adopted by the City Council with respect to processing zoning applications. That Policy states in relevant part: "Effective August 30, 1994, all cases that are appealed to the City Council shall only be reviewed on the merits of theplan that was approved or denied. No applicant will be permitted to present an amended plan RICHARDS, WATSON & GERSHON CONFIDENTIAL City of Rolling Hills January 18, 1996 Page 3 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. to the City Council, once a plan has been acted upon by the Planning Commission." This Policy is not specifically applicable to subdivision applications, which come to the City Council as a recommendation rather than as an appeal of a Commission decision. However, applying the intent of that Policy in this situation would bolster the City Council's posture of when and where negotiations on subdivision applications should occur. The obvious downside of this Option is it could be perceived as harsh to the applicant by forcing significant delays in getting the revised application back before the City Council. Not only would new application fees be incurred,but additional time would be taken for Planning Commission hearings, resolution adoption and presentation to the City Council. Some of these costs and delays could be minimized, however, if the City Council waived a portion of the new application fee and requested expedited review of the application by staff and the Planning Commission. Option Two - City Council Action to Remand the Application Back to the Planning Commission in Conjunction with the Applicant's Waiver of Time Delays The City Council could accept the revised plan and then send the matter back to the Planning Commission for its further consideration and recommendation of the new plan. In order to protect the City's legal position under this Option Two, the City Council should ask the applicanton the record, and subsequently in writing, if he accepts an extension of the time limits for processing the application under CEQA, the Subdivision Map Act, and the City's Subdivision Ordinance to a date certain. The City Council could also condition its acceptance of the revised plan to the applicant agreeing to pay a portion of the application fee for a tentative map (for example, fifty percent (50%) of that fee) in order to cover the City's cost of reprocessing the same application. An extension of the various time limits for processing a tentative map application is specifically authorized by Government Code Section 66451.1. A recent California court of appeal decision (Bickel v. City of Piedmont, 95 Daily Journal D.A.R. 9334 (July 13, 1995)) which ruled against allowing extensions of deadlines for zoning applications does not directly apply to tentative map applications and, in any event, has been accepted by the California Supreme Court for review and is no longer law in California. RICHARDS, WATSON & GERSHON CONFIDENTIAL City of Rolling Hills January 18, 1996 Page 4 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. The benefit of this Second Option is that the applicant is provided another opportunity to appear before the Planning Commission without the expense or delay caused by a denial and resubmittal of a new application. This Option also combines the protections the City ;would obtain by starting the application over but by way of an extension to the time limits and an agreement on payment of additional processing fees. The downside of this Option is that it is somewhat inconsistent with the City Council's Policy with respect to considering revisions to proposals once acted upon by the Planning Commission. However, as stated previously, that Policy is only directly applicable to appeals of zoning matters and not to subdivision matters that involve only a recommendation from the Planning Commission and action by the City Council. Option Three - City Council Consideration and Action Based on Revised Submittal Without Further Review By the Planning Commission The City Council could decide to accept. the modified plan and act on the application as modified without further consideration by the; Planning Commission. Under this Option, the City Council should couple its acceptance of the modified plan on condition that the applicant agree to extend the time limits for acting on the application under CEQA, the Subdivision Map Act, and the City's Subdivision Ordinance to a date certain. The primary benefit of this Option is that it allows the applicant and the City to reach final resolution more quickly on the ultimate issue of whether the City will allow the subdivision of this property. It allows the City Council to address this issue without subjecting the applicant to potentially fruitless additional review .by the Planning Commission. There are three principal negative aspects of this approach. First, it would appear to contradict the City Council's Policy that applies to modifications to zoning applications already acted upon by the Planning Commission. Second, it would allow an applicant to avoid Planning Commission. scrutiny of a new plan. If the planhad been presented to the Commission, the Commission may have reached a different recommendation or perhaps additional grounds for its recommendation. Third, it raises an issue about compliance with the Subdivision Map Act requirements that when a City has an advisory agency, an application must first be presented to that advisory agency for review (Government Code Section 66452.1). An argument is created that the modified application, if acted upon without additional Planning Commission review, is processed in RICHARDS, WATSON & GERSHON CONFIDENTIAL City of Rolling Hills January 18, 1996 Page 5 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. violation of this Section. The counter argument would be that the Planning Commission has already acted on the application and the City Council is permitted to make additional modifications (particularly if they are minor) to the map based on its own initiative or upon acceptance of modifications initiated by the applicant. In our opinion, this last issue does not pose a significant legal risk. Conclusions and Recommendations From a legal perspective, the Council can select any of the three options specified above. If Option One is chosen, but the City Council is not prepared to act on the application at its January 22, 1996 meeting, an extension of the time deadlines must be obtained from the applicant. Under the Second and Third Options, the City must request and obtain the applicant's consent to the extensions of the time deadlines for the City to act on the application that are specified in CEQA, the Subdivision Map Act and the City's Subdivision Ordinance. Lastly, if the City Council is inclined to choose Options Two or Three, but the applicant does not agree to any time extensions, the City Council should chose Option One and act on the Negative Declaration and approve or disapprove of the application at its January 22, 1996 meeting. A resolution memorializing that action would then be brought back to the City Council for adoption at its next meeting. The fact that the Resolution would not be adopted at the January 22, 1996 meeting would, however, leave some remaining and unavoidable risk of an alleged violation of the City's Subdivision Ordinance time limits. Additional Issues - Compliance with Zoning Ordinance The proposed Tentative Map was prepared using the City's Subdivision Ordinance requirements for calculating net lot area. This requirement calculates net lot area as excluding all perimeter easements up toamaximum of ten feet and that portion of the lot that is used for roadway purposes (Rolling Hills Municipal Code Section 16.16.010 (C)). This is different from the Zoning Ordinance standard which calculates net lot area as excluding the full area of all perimeter easements measured to a minimum lineal distance of 10 feet perpendicular to the property lines (Rolling Hills Municipal Code Section 17.12.120). The effect of the Subdivision Ordinance in this instance is to allow more of the gross lot area to be used to meet the net lot area RICHARDS, WATSON & GERSHON CONFIDENTIAL City of Rolling Hills January 18, 1996 Page 6 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. calculation since perimeter easements exceed ten feet. This allows slightly smaller lots than would be the case if the Zoning Ordinance calculation was applied. Planning. Staff's review of subdivision applications in the City since 1983 indicates that all of those applications have used. the Subdivision- Ordinance's requirement for calculating net lot area. See Planning Staff's attachment to this letter. Applications for entitlement under the City's Zoning Ordinance, such as site plan review applications, which involve calculations of structural lot coverage and building pad coverage, should be based on the stricter Zoning Ordinance standard. A tentative map's non-compliance with a Zoning Ordinance standard is not'a mandatory ground specified in the Subdivision Map Act for denial of the tentative map. The Map Act specifies several grounds that if found to exist by the local agency, require denial. Those mandatory grounds for denial include, among other items, non-compliance with the City's General Plan or Subdivision Ordinance. Not only does the Map Act not require denial of a Map for non-compliance with a zoning ordinance provision, but the Map Act is also silent as to whether a city may deny a tentative map on that ground or any other ground not listed as.a mandatory basis for denial. No court decision has squarely addressed this issue. The Marshall's application is for a tentative parcel map. If the application had been for a vesting tentative map, the Map Act expressly indicates that a city may deny or condition the map's approval on the basis of non-compliance with that city's zoning ordinance (Government Code Section 66498.3). This implies that for a non -vesting map, such as the Marshall map, it may be impermissible to deny the map solely on grounds of non- compliance with the City's Zoning Ordinance. The Planning Commission has, in at least one previous case, used the inability to develop a lot in compliance with Site Plan Review requirements or other standards contained in the City's Zoning Ordinance as an additional reason, on top of mandatory denial criteria, in making a recommendation to deny a tentative map. This occurred in the Planning Commission's first recommendation to deny the Smith Subdivision (7 Pine Tree Lane) based upon the Zoning Ordinance's requirement of maximum disturbed. area. Upon further modification of the map and plan, the Planning Commission later recommended approval. The City's past practice of permitting subdivisions that comply with the calculation for net lot area contained in the City's Subdivision Ordinance together with the uncertainty in the law for denying a non -vesting map solely on the basis of that RICHARDS, WATSON & GERSHON CONFIDENTIAL City of Rolling Hills January 18, 1996 Page 7 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. non-compliance, pose a risk to the City for denial of the Marshall subdivision on grounds that one or both of the lots to be created do not comply with Zoning Ordinance net lot area standards. If the City Council is inclined to deny the Marshall subdivision, it would be more defensible to do so on General Plan consistency grounds specified in the Planning Commission's resolution. If you have any further questions regarding this matter, please do not hesitate to contact Michael Jenkins or me. KGE:kge Attachment cc: 1682250 Very truly yours, evin G. Ennis Assistant City Attorney Michael Jenkins, City Attorney Craig Nealis, City Manager Lola Ungar, Principal Planner GLENN R. WATSON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARK L. LAMKEN ARNOLD SIMON RICHARD H. DINEL ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER THOMAS A. FREIBERG. JR. ALLEN E. RENNET' STEVEN L. DORSEY WILLAM L STRAUSZ MARY L WALKER ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WILLIAM B. RUDELL DAVID L. COHEN TERESA R. TRACY QUINN M. BARROW CAROL W. LYNCH TERRY A. TRUMBULL COLEMAN J. WALSH. JR. JOHN A. BELCHER JEFFREY A. RABIN CURTIS L. COLEMAN MARSHA JONES MOUTRIE GREGORY M. KUNERT AMANDA F. SUSSKIND SCOTT WEIBLE DANIEL P. TORRES THOMAS M. JIMBO MICHELE BEAL BAGNERIS ROBERT C. CECCON PAMELA A. ALBERS SAYRE WEAVER KEVIN G. ENNIS ROBIN D. HARRIS EFRAT M. COGAN LAURENCE S. WIENER DAVID P. WAITE CYNTHIA M. WALKER. CHRISTI HOGIN STEVEN R. ORR DEBORAH R. HAKMAN SCOTT K. SHINTANI ANDREA J. GREENBERG MICHAEL G. COLANTUONO KENNETH T. FONG JACK S. SHOLKOFF DAVID A. BUCHEN B. TILDEN KIM SUSAN M. WILSON DARYL T. TESHIMA RANDOLPH P. MCGRORTY CHRISTINA R. MELTZER BIRGIT A. HUBER S. ALAN RAY JUUET F. IRELAND RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A- PROFESSIONAL CORPORATION THIRTY-EIGHTH FLOOR 333 SOUTH HOPE STREET LOS ANGELES, CALIFORNIA 90071-1469 (213) 626-8484 TELECOPIER (213) 628-0078 March 4, 1991 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Ms. Lola Unger Principal Planner. City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 Re: Zoning Case No. 434, Mr. 24 Outrider Road Dear Lola: Howard Wallace RICHARD RICHARDS (1916-1988) SAN FRANCISCO OFFICE EIGHTEENTH FLOOR • 101 CAUFORNIA STREET SAN FRANCISCO, CAUFORNIA 94111-5821 (415) 956-8484 • TELECOPIER (415) 986-8722 OUR FILE NUMBER R6980-303 At the last Planning Commission meeting, Mr. Doug McHattie told us that Mr. Wallace had finally obtained a grading permit for the driveway grading. As you know, his application has been continued from previous Commission meetings until such time as a grading permit had been obtained. In order to protect the City against a Permit Streamlining Act problem, we had requested and received a letter from the applicant consenting to a waiver of the time limits provided for in the Permit Streamlining Act. The letter sent back to the City, which is within the City's file, only granted an extension to the City until such time as a grading permit had been received by the City. Now that the applicant has obtained that grading permit, we need a further grant of extension from the applicant. - Pursuant to California Government Code Section 65957, the time limits established by the Permit Streamlining Act "may be extendedoncefor a period not to exceed 90 days upon consent of the publicagency and the applicant." You should check the file and determine when the application was filed. The six months time limit then starts running 30 days after the application was filed and deemed complete. Once we know when the six months time period expired, we can calculate how much of the allowable 90 -day extension we have already obtained from the RICHARDS, WATSON & GERSHON • CONFIDENTIAL March 4, 1991 Page 2 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE.THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. applicant. Then, -you can complete the attached draft cover letter and draft extension letter to be sent to the applicant. According to a narrow reading of the statute, we may only ask for an extension once for a period of time not exceeding 90 days. Technically, this may be our second extension although we are not requesting an extension of more than 90 days. However, we originally requested a full 90 -day extension, and this second request is to ask the applicant to correctly memorialize that request which had been accepted. Therefore,' this second request for an extension can be regarded as a clarification of our original - request- arad agreement rather than as a second extension. If you have any questions regarding this matter, please do not hesitate to contact. me. Very truly yours, Kevin G. Ennis Assistant City Attorney KGE:eeh cc: Craig Nealis, City Manager 1680433 • • • RICHARDS, WATSON & GERSHON MEMORANDUM TO: Craig Nealis, Lola Ungar FROM: Michael Jenkins DATE: June 30, 1993 SUBJECT: Lot Line Adjustments In light of the Court's ruling in the Colyear case, you have asked for a succinct statement of the City's policy regarding the processing of lot line adjustments under the subdivision map act and under the City's subdivision ordinance. If anyone inquires whether the City accepts applications for lot line adjustments, the answer is in the affirmative. If the question is asked whether an applicant for a lot line adjustment must also apply for certificate of compliance as a prerequisite of obtaining a lot line adjustment or in connection with obtaining a lot line adjustment, the answer is "no." Finally, if you are asked how the City would treat a certificate of compliance for a lot line adjustment, the answer would be that we would treat it as a request for both, not merely a request for a lot line adjustment alone. It is my understanding that these responses are consistent with the City's past practice. MJ:alr 86980-00001 0563833 GLENN R. WATSON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER ALLEN E. RENNETT STEVEN L DORSEY WILLIAM L STRAUSZ ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WILLIAM B. RUDELL DAVID L COHEN QUINN M. BARROW CAROL W. LYNCH COLEMAN J. WALSH. JR. JOHN A. BELCHER JEFFREY A. RABIN GREGORY M. KUNERT SCOTT WEIBLE THOMAS M. JIMBO MICHELE BEAL BAGNERIS AMANDA F. SUSSKIND ROBERT C. CECCON A}} l 1 SAYRRE WEAVER WILLIAM K. KRAMER STEVEN H. KAUFMANN MARSHA JONES MOUTRIE GARY E. GANG JOHN J. HARFIIS KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA LAURENCE S. WIENER DAVID P. WAITE CHRISTI HOGIN STEVEN R. ORR DEBORAH R. HAKMAN SCOTT K. SHINTANI MICHAEL G. COLANTUONO MEUSSA A. CHAITIN JACK S. SHOLKOFF B. TILDEN KIM DARYL T. TESHIMA RUBIN D. WEINER SASKIA T. ASAMURA ADAM F. STREISAND TAYLOR L FITZMAURICE DAVID M. FLEISHMAN KAYSER O. SUME CRAIG A. STEELE ' ROBERT M. MAHLOWITZ KURTISS L GROSSMAN MICHELLE A. CURTIS DAWN R. ANDREWS T. PETER PIERCE MARC D. KIRSHBAUM RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A PROFESSIONAL CORPORATION February 4, 1994 Lola Ungar Planning Director City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 (g,12 FEB 07 1994 CITY OF ROLLING HILLS Re: Recent Amendments to the (Stats. 1993, Ch. 1068) Dear Lola: RICHARD RICHARDS (1916-1988) THIRTY-EIGHTH FLOOR 333 SOUTH HOPE STREET LOS ANGELES. CALIFORNIA 90071-1469 (213) 626-8494 TELECOPIER (213) 626-0078 0564305 OUR FILE NUMBER R6980-00001 Permit Streamlining Act This letter is to inform you of recent amendments to the Permit Streamlining Act (PSA) which took effect on the first of this year. Under the law in effect prior to this year, the City was required to approve or disapprove projects within one year of the date a completed application was submitted if an EIR was required, and within six months of that date if a negative declaration was required or if the project was exempt from review under CEQA. As amended by Chapter 1068, Government Code Section 65950 now provides, in relevant part: "Any . lead agency for a development project for which an environmental impact report is prepared pursuant to [CEQA] . . . shall approve or disapprove the project within six months from the date of certification by the lead agency of the environmental impact report. If a negative declaration is adopted or if the project is exempt from [CEQA] . . ., the development project shall be approved or disapproved within three months from the date of adoption of a negative declaration, or the determination by the lead • • RICHARDS, WATSON & GERSHON Ms. Lola Ungar February 4, 1994 Page 2 agency that the project is exempt from the requirements of [CEQA] . . ., unless the project proponent requests an extension of the time limit." With one significant exception, this amendment effectively relaxes the requirements of the PSA even though the time frames have been reduced from one year and six months to six months and three months, respectively. This is so because the shorter time limits run after the CEQA process is complete. The statute previously provided that the PSA's deadlines ran concurrently with the one-year and 105 -day deadlines established by CEQA for the preparation of EIR's and negative declarations, respectively. The exception is with respect to projects which are exempt from CEQA. Previously, the City had six months from the date the application was deemed complete to approve or disapprove a project which is exempt from CEQA. Under the amended language of Government Code Section 65950, however, the City must approve or disapprove such a project three months after determining that it is exempt from CEQA. As discussed below, this will be no more than roughly four and one-half months after the application is complete. Accordingly, in the absence of extensions (and apart from projects requiring compliance with the federal National Environmental Policy Act), the City must comply with the deadlines described below. You will recall that under Government Code Section 65943 and Public Resources Code Section 21151.1, all deadlines run from the date the City accepts an application as complete or 30 days after the application is submitted, if the City fails to make a written determination whether the application is complete by that time. Projects Requiring EIR's: Under Public Resources Code Section 21151.5, the EIR must be certified within one year of the date the application is deemed complete. Government Code Sections 65950 and 65957 provide that the project must be approved within six months of the date the EIR is certified, unless the applicant consents to a single extension of not more than 90 days. However, the applicant may consent, pursuant to Public Resources Code Section 21151.5, to one extension of the deadline • • RICHARDS, WATSON & GERSHON Ms. Lola Ungar February 4, 1994 Page 3 for certifying the EIR if the extension is "reasonable"/ and "compelling circumstances justify additional time." If the applicant consents to the extension, then Government Code Section 65950.1 requires the EIR to be certified within the agreed time and the project to be approved not more than 90 days after the EIR is certified. Thus, if the time to prepare an EIR is extended by the mutual consent of the City and the applicant, the City's time to approve the project after certification of the EIR is cut in half, although the shorter period will run from the extended EIR deadline. Projects for Which Negative Declarations are Prepared: Public Resources Code Section 21151.5 requires the City to adopt a negative declaration within 105 days of the date the application is deemed complete.21 This deadline can be extended once under Public Resources Code Section 21151.5 if the extension is "reasonable" and "compelling circumstances justify additional time." Pursuant to Government Code Sections 65950 and 65957, the project must be approved within three months of the date the negative declaration is adopted, unless the applicant consents to a single extension of not more than 90 days. Section 65950's three-month limit will run from the adoption of the negative declaration whether or not the 105 -day deadline has been extended. Projects Exempt from CEQA. Public Resources Code Section 21080.2 provides that the City must determine whether an EIR or a negative declaration is required for a project within 30 J Although the statute appears to allow an extension of any length reasonable under the circumstances, Section 15108 of the State CEQA Guidelines states that such extensions must be limited to 90 days or less. Although it may be possible to persuade a court to disregard the CEQA Guidelines on this point, the safer practice is to extend the one-year deadline to certify an EIR by no more than 90 -days. V Section 21151.5 suggests, and Section 15107 of the State CEQA Guidelines states, that the City need only "complete" a negative declaration within 105 days and that the City may "adopt" the negative declaration at a later time when the project is approved. However, we recommend the negative declaration be adopted within the 105 -day period for this reason: under Section 65950, the PSA's three-month deadline runs from the date the negative declaration is adopted. If the 105 -day time limit does not apply to the adoption of the negative declaration, no time limit applies, and the three-month clock will never run. This interpretation would make the PSA meaningless in this situation and for that reason would most likely be rejected by a court. • • RICHARDS, WATSON & GERSHON Ms. Lola Ungar February 4, 1994 Page 4 days of the date the application is deemed complete, although the applicant may consent to a 15 -day extension. This rule implies that a determination that neither an EIR nor a negative declaration is required -- i.e., that the project is exempt from CEQA -- must also be made within this time. Government Code Sections 65950 and 65957 provide that the project must be approved within three months of the date the determination of exemption is made, unless the applicant consents to a single extension of not more than 90 days. Again, this three-month limit will run from the date the project is determined to be exempt from CEQA whether or not the 30 -day deadline for that determination has been extended to 45 days. Deemed Approval. You will recall that the courts have found that there is no penalty for failing to comply with the deadlines established by CEQA in such cases as Meridian Ocean Systems, Inc. v. California State Lands Comm'n, 222 Cal.App.3d 153, 168 (1990). However, there is likely to be one significant consequence for failing to comply with CEQA's deadlines: the courts are likely to conclude that if the City fails to take an action under CEQA within the time allowed, the time limits under the PSA will begin to run on the last day the City could have timely acted under CEQA. This would follow the example of Benny v. City of Alameda, 105 Cal.App.3d 1066, 1012 (1980), in which the court interpreted similar provisions of the Subdivision Map Act to provide that a legislative body's time in which to act begins to run on the last day that the advisory agency could have timely recommended approval or denial of a tentative map. Thus, if the City fails to get the applicant's consent to an extension and fails complete an EIR and approve a project in the 18 months after an application is deemed complete, both CEQA's one year to complete the EIR and the PSA's six months to approve or disapprove the project will have run. In that case the penalty of the PSA would apply. The penalty for failing to comply with the PSA's deadlines is that the project may be "deemed approved." Under Government Code Section 65956(b), an application cannot be "deemed approved" unless "the public notice required by law has occurred." If the City has not itself given this notice, the applicant may do so after 7 days notice to the City. If the applicant gives notice of the possible "deemed approval," the City has an additional 60 days to approve or disapprove the project. Thus, the City will usually be able to schedule a hearing to approve or disapprove an application before it is "deemed approved." However, where the City has itself given the notice, there is a risk a project will be deemed approved if the City does not approve or disapprove the project within the time allowed by the PSA. This risk is greatest when a hearing has been noticed and opened, but repeatedly continued or delayed. RICHARDS, WATSON & GERSHON Ms. Lola Ungar February 4, 1994 Page 5 There are two other significant limits on the "deemed approval" provision of the PSA. First, as the Court explained in Land Waste Management v. Contra Costa County, 222 Ca1.App.3d 950, 961 (1990), it is not possible to obtain a "deemed approval" of an EIR or a negative declaration. A court could, of course, issue a writ to compel the City to complete a delayed EIR or negative declaration. Second, as the Land Waste Management and other courts have ruled, a project may only be "deemed approved" if it is consistent with existing ordinances, general plan provisions, and adopted policies of the City. Accordingly, applications for zoning amendments, general plan amendments, and other legislative approvals cannot be "deemed approved." Thus, there may be many cases in which the "deemed approved" penalty will not apply. Nonetheless, we recommend the City make every effort to meet the statutory deadlines. First, compliance with time limits will avoid suits seeking to compel the City to act on an application. Second, as to cases which reach the courts on other grounds, a court can be expected to be less receptive to the City's position if the City has denied the applicant a timely decision. Other Changes. Chapter 1068 makes two other minor changes to the law. It adds paragraph (c) to Government Code Section 65940.5, which together with the existing paragraph (b), re-emphasizes that the City may not refuse to deem an application complete because the applicant fails to include a waiver of the PSA's deadlines. The new statute also adds Government Code Section 65952.2, which provides that the City shall not "disapprove an application for a development project in order to comply with the time limits specified in this chapter. Any disapproval of an application for a development project shall specify reasons for disapproval other than the failure to timely act This last change does not seem especially significant, as we have previously advised against a denial solely because the City was unable to act in the time allowed by the PSA. One last point bears mention: you will recall that the Subdivision Map Act has its own, shorter, deadlines for the approval of tentative tract and parcel maps. Those provisions were not amended in the last year and are not discussed here. If we can provide any advice on that subject, please let us know. RICHARDS, WATSON & GERSHON Ms. Lola Ungar February 4, 1994 Page 6 If you have remaining questions about this statute, or if we can assist you in applying these new time limits to a particular application, please do not hesitate to call me. MJ:clm 0564305 NOV 23 1993 CITY :OF. .ROLLING HILLS MI R. WATSON HARRY L GEiSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER ALLEN E. RENNETT STEVEN L DORSEY WILUAM L STRAUSZ ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L. NEUFELD ROBERT F. DE METER GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WIWAM B. RUDELL DAVID L COHEN QUINN M. BARROW CAROL W. LYNCH COLEMAN J. WALSH, JR. JOHN A. BELCHER JEFFREY A. RABIN GREGORY M. KUNERT SCOTT WEIBLE THOMAS M. JIMBO MICHELE BEAL BAGNERIS AMANDA F. SUSSKIND ROBERT C. CECCON WILLIAM IC ISRAMEFr- STEVEN H. KAUFMANN MARSHA JONES MOUTRIE GARY E. GANS WILLIAM E. MATSUMURA KEVIN G. ENNIS ROSIN D. HARRIS MICHAEL ESTRADA LAURENCE S. WIENER DAVID P. WRITE CHRISTI HOGIN STEVEN R. ORR DEBORAH R. HAKMAN SCOTT IC SHINTANI MICHAEL G. COLANTUONO JACK S. SHOLKOFF 0. TILDEN KIM DARYL T. TESHIMA RUBIN D. WEINER SASKIA T. ASAMURA ADAM F. STREISAND TAYLOR L FITZMAURICE DAVID M. FLEISHMAN KAYSER O. SUME STEVEN L HOLCOMB CRAIG A. STEELE ROBERT M. MAHLOWITZ KURTISS L GROSSMAN MICHELLE A. CURTIS DAWN R. ANDREWS •* RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A PROFESSIONAL. CORPORATION July 16, 1993 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Honorable Chairman and Members of the Planning Commission City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 Reference: RICHARD RICHARDS (1916-1988) THIRTY-EIGHTH FLOOR 333 SOUTH HOPE STREET LOS ANGELES, CALIFORNIA 90071-1469 (213) 626-8484 TELECOPIER (213) 626-0078 OF COUNSEL RICHARD H. DINEL 1681286 OUR FILE NUMBER R6980-00303 WRITER'S DIRECT DIAL NUMBER (213) 253-0321 Proposed Subdivision of Property at 7 Pine Tree Lane; Dr. and Mrs. Robert A. Smith; Tentative Parcel Map 22334 Dear Chairman and Members of the Planning Commission: At the Planning Commission's meeting on July 20, 1993, the Commission will be asked to make a recommendation to the City Council regarding the proposed subdivision of 7 Pine Tree Lane into two parcels. The Commission may either decide to recommend approval, recommend denial, or recommend denial without prejudice to reapply when certain additional information is determined. I do not suggest continuance of this item to another meeting due to the fact that the time periods for processing the application, as extended by the applicant, will expire at the meeting on July 20, 1993. The purpose of this letter is to provide you with our analysis of the each potential course of action and the findings that the Commission could use to support each action. Factual Background As you know, the Smiths have proposed a two lot subdivision of a 6.16 acre lot located at 7 Pine Tree Lane. The two parcels created will meet the minimum lot size and dimension requirements for the RAS-2 (residential, two acre) zone. Parcel 1 will cover 3.06 acres net and will include the existing • RICHARDS, WATSON & GERSHON CONFIDENTIAL4100 City of Rolling Hills July 16, 1993 Page 2 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. residence on the property. Parcel 2 will contain 2.10 net acres. Vehicular access for each parcel will be provided to each parcel from Pine Tree Lane. The Commission has been informed by the applicants and their representatives that proposed parcel 2 is part of an active landslide (Reports from Stephen W. Ng of SWN Soiltech Consultants, Inc. and Keith W. Ehlert, Consulting Engineering Geologists). These consultants have informed the City that development of proposed parcel 2 for residential use is only feasible if approximately 80% of the soil surface area of the parcel is removed, earthen benches created, and then the soil moved back and recompacted. The depthof the excavation will reach 50 feet in the center of the proposed parcel. Additional geotechnical measures such as deep bedrock caissons may also be required at the time of development. As you know, Pine Tree Lane is proposed to be improved with a cul-de-sac bulb in order to meet Fire Department and County Engineer concerns regarding emergency vehicle access. The proposed location of the bulb and any potential extension of Pine Tree Lane further north has been an issue which hopefully will be resolved between the applicant, the adjacent property owners (Hassoldt and Cukingnan) and the Community Association before the Commission's meeting. Discussion A. Approval. If the Commission recommends approval of the proposed subdivision, the principal legal issue will be the resolution of the location of the cul-de-sac and the terms and provisions for financing that construction between the neighbors. The Commission has received no opposing testimony to the proposed subdivision from parties that appear interested in fighting the subdivision in court. There could be opposition testimony that is only presented once the matter is set before the City Council. The City should be careful to ensure that the cul-de- sac and roadway extension will traverse existing easements or are proposed to be located on property where the owners are willing to provide easements for that purpose without expense or exactions from others. Otherwise, the City may be later asked to modify the location of the cul-de-sac or waive the requirement for extension and construction of the bulb. If the Commission is inclined to recommend approval of the subdivision, I recommend that the Commission make the findings contained on Attachment A to this Memorandum. The- RICHARDS, WATSON & GERSFiON COPFIDENTIAL City of Rolling Hills July 16, 1993 Page 3 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Commission should review the proposed conditions of approval carefully, including but not limited to, proposed condition 23 relating to the roadway extension. B. Denial. The Subdivision Map Act specifically requires that a tentative map be denied if the proposed subdivision is inconsistent with the City's adopted general plan, if the site is not physically suitable for the proposed development, or if any one of several other criteria is satisfied. (Government Code Section 66474). A set of findings can be made that the proposed subdivision is inconsistent with the City's General Plan because the subdivision proposes to allow residential development on a area of land that is subject to geological instability. There are several references in the General Plan which are aimed at discouraging additional development in these areas. Finding can also be made that the site is not physically suitable for the type of development on grounds of geologic instability and the amount of remediation required to correct the problem. See Attachment B for a list of those potential findings. In addition, Section 308(b) of the Uniform Building Code precludes the issuance of building permits on land that is geologically unstable unless remediation will, in the judgment of the Building Official, make the project safe for development. Thus, if the Commission is inclined to recommend denial of the proposed subdivision, an additional finding should be made that sets forth the Commission's uncertainty of the probability of success of the remediation. Despite these grounds for denial, the applicants may attempt to challenge the City's denial of the subdivision on at least two potential grounds. As discussed below, we believe that the City could successfully respond to these points and would succeed in having a decision of denial upheld in court. The applicants would likely assert that the denial constitutes a taking of property in violation of the applicants' rights that their property not be taken without just compensation as provided by the Fifth Amendment to the U.S. Constitution. As a general rule, a land use decision will constitute a taking of property if the decision does not substantially advance legitimate state interests, or if the decision denies the owner substantially all economically viable use of his or her land. (Nolan v. California Coastal Commission (1987) 107 SCt 3141, 3146, Keystone Bituminous Coal Ass'n v. De Benedictis (1987) 107 SCt 1232). • RICHARDS, WATSON & GERSHON • C O FIDENTIAL L City of Rolling Hills July 16, 1993 Page 4 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. In response to a taking claim, the City would be able to assert that the denial effectuates certain policies in the City's General Plan which seek to preclude development in areas susceptible to geologic hazard. The U.S. Supreme Court has held that denial of all use of a parcel of property is not a compensable taking of property if the denial is based upon avoidance of a significant risk to the health or safety of the potential occupants of the property or those in the vicinity (First English Evangelical Lutheran Church v. Los Angeles County (1987) 107 SCt 2378, 2385) (flood hazard protection area viewed as a legitimate safety regulation), or if the proposed use of the property could be dangerous (Kevstone,supra)(preclusion of coal mining underneath adjacent residential homes). The Supreme Court has recently held that a taking will not be found if the proposed development could be prohibited under common law nuisance principles. (Lucas v. South Carolina Coastal Commission (1992) 112 S.Ct. 2886). In this case, the establishment of a residential lot on a landslide could constitute a public nuisance. Consequently, the General Plan's goal of restricting and precluding development in areas susceptible to landsliding is likely to be viewed as a legitimate state interest. Also the decision does not deny the owner substantially all economic viable use of their land because the existing lot is already used and developed for residential and accessory uses. Denial of the subdivision will still permit proposed parcel 2 to be used for certain permitted uses which are accessory to the existing residential use.. As a general rule, when considering whether a taking of property has occurred, the economic use of the property as a whole is considered rather than just the portion of the property which is precluded from development. (Zilber v. Town of Moraga, 692 F.Supp. 1195 (ND Cal. 1988.)) If the City were to approve the subdivision of what is now a geologically unstable parcel of property, the City would place itself in a position similar to that encountered in the Faver case. As you recall in Faver, a proposal was submitted for development on a geologically unstable lot. In that case, the lot had already been created and investment expectations as to its viability for construction of a residential structure had been established. Consequently, the City's denial of development on the lot on the basis of geologic instability created a stronger case of a compensable taking. In this case, no*separate lot has been created and thus not investment expectations as to the separate value of that land has, at least up to this point, been recognized by the City. RICHARDS, WATSON & GERSFiON CO FIDENTIAL City of Rolling Hills July 16, 1993 Page 5 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Another potential basis to challenge a denial of the application is on equal protection grounds. The applicant may assert that a denial of the subdivision is inconsistent with the City's approval of other lots and developments which have required extensive geotechnical engineering measures for development. In Herrington v. Sonoma County, 834 F.2d 1488 (9th Cir. 1987) the court upheld a trial court verdict against the County on equal protection grounds for the County's denial of a 32 -lot subdivision. The applicant had shown that the County had approved sizable residential developments on other similar types of properties in the County shortly after the County had denied the applicant's proposal. There are subdivisions or lot splits that have been allowed in the City which the City later finds to involve property subject to some geologic hazards. Also, the City has approved development applications for some properties that later require extensive geotechnical engineering measures to stabilize the lot. The City can attempt to distinguish this proposal from those others by the amount, depth and area to be covered by the grading work. Also, the remediation work in recent cases involved projects on legally created lots rather than on lots not yet created. In many of those other cases, the City was not aware of the extent of remediation required until the building permit stage_of approval. The City has also denied developments on properties where there is geologic instability and where there was uncertainty as to the effectiveness of remediation (Faver). As with any court challenge to a land use decision, the findings for the decision are the most important evidence of the basis for the City's decision. We believe that the draft findings attached hereto as Attachment B to this Memorandum will sufficiently support a decision to deny the subdivision. We will be augmenting and refining those draft findings by your meeting on Tuesday. Those findings also include environmental damage as a basis for denial. However, this finding should only be made if the Commission also recommends that the City Council not approve the Negative Declaration. The reasoning behind this suggestion is that if the Negative Declaration is recommended for approval, the Negative Declaration would constitute substantial evidence that the environmental impacts could be mitigated to a level of insignificance. This would therefore directly contradict any findings in the denial resolution that the project would result in significant and unmitigated environmental impacts. The Commission should note that if the subdivision is denied, in part, because the lot is geologically unstable, the applicant could attempt to come back and correct the instability 111 RICHARDS, WATSON & GERSHON CONFIDENTIAL City of Rolling Hills July 16, 1993 Page 6 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. first before reapplying for approval. Since grading is required, that would require the City to approve the grading as part of the City's Site Plan Review process. However, the Commission may find it difficult to make the required findings under that Ordinance. One of those findings requires the proposed project to minimize grading on the site. C. Denial Without Prejudice to Reapply. Another potential course of action for the Commission is to recommend that the application be denied without prejudice to the applicant's ability to reapply when certain outstanding issues are resolved. This would mean that if the City Council concurred in that decision, that the applicants could go back and attempt to finalize the plans for the cul-de-sac and obtain more information regarding geologic stabilization before resubmitting their application. The application could then be resubmitted to the City without having to pay new application fees and the City could start processing the application where it left off. The benefit to this approach is that it provides time to resolve some issues and also stops any time periods from running within which the City is required to act. The City's decision to deny without prejudice would still have to be made based upon substantial evidence in the record. The principal basis to deny would be that there is currently a lack of evidence to find that the project conforms to the requirements of the City's Subdivision Ordinance due to outstanding issues involving geologic stability of the site and the proposed location and financing of the proposed cul-de-sac. The suggested findings for this type of action are set forth on Attachment C to this Memorandum. If you have any questions regarding this matter, or would like additional advice before the meeting, do not hesitate to contact me or Lola Ungar. cc: KGE:kge 1681286 Very truly yours, Kevinn G. s Assistant City Attorney Craig Nealis, City Manager Lola Ungar, Principal Planner Michael Jenkins, City Attorney ATTACHMENT A FINDINGS FOR APPROVAL CONFIDENTIAL Set forth below are the suggested findings if the Commission is inclined to recommend approval of the Smith Subdivison (Zoning Case No. 449): A. The proposed subdivision map and the design and improvement of the proposed subdivision is consistent with the applicable General Plan, including but not limited to, the following goals and policies of the General Plan: 1. Maintain Rolling Hills' distinctive rural residential character. (Land Use Element, p. 15.) 2. Accommodate development which is compatible with and complements existing land uses. (Land Use Element, p. 15.) 3. Accommodate development that is sensitive to the natural environment and accounts for environmental hazards. (Land Use Element, p. 16.) Provide for housing which meets the needs of existing and future Rolling Hills' residents. (Housing Element, p. 44.) 5. Maintain and enhance the quality of 'residential neighborhoods in Rolling Hills. (Housing Element, p. 44.) Promote housing opportunities for all persons regardless of race, religion, sex, marital status, ancestry, national origin or color. (Housing Element, p. 45.) 7. Conserve and enhance the City's natural resources, facilitating development in a manner which reflects the characteristics, sensitivities and constraints of these resources. (Open Space and Conservation Element, p. 15.) B. The site is physically suitable for the proposed density and type of development. The proposed use, density, and proposed subdivision improvements are permitted in the RAS-2 zone. Parcel 1 is 3.06 acres net and Parcel 2 is 2.10 acres net which both exceed the minimum 2 -acre lot size of the RAS-2 zone. C. The design of the subdivision or the proposed improvement is not likely to cause substantial environmental damage; or substantially and avoidably injure fish or wildlife or their habitat. The design of the subdivision and the proposed improvements are not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat, because the property is within an area of the City, designated for development. The initial study prepared for the project did not identify the site as containing unique or sensitive environmental qualities and no threatened, rare or endangered plant or animal species were identified during review of the project. Attachment A -1- LUItir1Ut1V1 UAL D. The design of It subdivision or type of improvements is not likely to cause serious public health problems. The design of the subdivision and the proposed improvements are not likely to cause serious public health problems because conditions of approval have been applied to the project to require compliance with applicable codes and ordinances designed to protect public health and safety. E. The design of the subdivision and the proposed improvements will not conflict with easements acquired by the public at large for access through or use of property within the proposed subdivision. This is because existing roadway easements will be maintained or expanded by this project and adequate access will be provided to these parcels and adjacent parcels. In addition, the parcels will contain perimeter easements providing access for roads, trails, and public utilities. As a condition of approval, these easements will be recorded in deeds prior to approval of the final map. F. The proposed subdivision will not adversely affect the housing needs of the region. G. The proposed use will be in substantial compliance with the provisions of the Residential Development Standards in the Rolling Hills Zoning Ordinance. H. The proposed use will be compatible with other existing residential development in the immediate area. The tentative map design provides for future passive or natural heating or cooling opportunities in the subdivision to the extent feasible because the project is designed with lots of adequate dimensions to maximize the opportunities for passive and natural heating and cooling. - J. The tentative map does not propose to divide land which is subject to a contract entered into pursuant to the California Land Conservation Act of 1965, because the property in question has not been included in any such contract. K. Pursuant to Section 66474.6 of the Subdivision Map Act, the discharge of waste from the proposed subdivision into proposed septic systems will not result in violation of existing requirements prescribed by the California Regional Water Quality Control Board, because the applicant is required to comply with all Conditions of Approval regarding waste disposal contained in Section 10 of this Resolution. L. Pursuant to the Rolling Hills Municipal Code Section 16.12.155, this Tentative Parcel Map is consistent with and does not impact the County of Los Angeles Hazardous Waste Management Plan. Attachment A -2- • ATTACHMENT C CONFIDENTIAL FINDINGS FOR DENIAL WITHOUT PREJUDICE Set forth below are the suggested findings if the Commission is inclined to recommend denial without prejudice of the Smith Subdivision (Zoning Case No. 449): The Planning Commission finds that there is insufficient evidence in the record of this application upon which to make a recommendation for approval or denial on the merits. Information regarding the proposed location of the roadway along the property and the location of a cul-de-sac turnaround area has not been submitted in complete or sufficient form for the Commission to recommend approval of the application. In the absence of a final plan of the cul-de-sac design, the Commission cannot be assured that the application will not have to come back to it for further review in the future. For these reasons, the Commission is unable to find that the parcel map contains all the required information for tentative and parcel maps which is required by Title 16 of the Rolling Hills Municipal Code. Attachment C -1- ONFIDENTIAL • ATTACHMENT B PROPOSED FINDINGS FOR DENIAL Set forth below are suggested findings in the event the Commission is inclined to recommend denial of Tentative Parcel Map 22334 (Smith Subdivision): A. The proposed subdivision map is not consistent with applicable general and specific plans (Rolling Hills Municipal Code Section 16.12.150(1) and Government Code Section 66474(a)). With respect to this ground for denial, the Planning Commission finds as follows: 1. The Safety Element of the General Plan provides that new development should continue to be restricted in areas susceptible to landsliding unless this geologic hazard can be mitigated by conventional structural or alternative nonstructural methods (Policy 2.1 on page 26). The site is part of a landslide (Reports submitted by Mr. Ng and Mr. Ehlert). The proposed mitigation of this geological hazard would require nearly 80% of proposed parcel 2 to be excavated to a maximum depth of 70 feet at one point. Nearly two acres of surface area would be excavated. The soil would then be recompacted using additional geotechnical support structures. These mitigation measures are extensive, and would create substantial alternation to the area. which is not the type of conventional mitigation methods contemplated by, or consistent with the General Plan. 2. The Safety Element of the General Plan provides that the City should consider the alternative use of properties for a natural preserve in active landslide areas (Policy 2.3 on page 27). The proposed subdivision would create a parcel that contains a landslide and would deprive the existing lot of an area of open space that could be used for agriculture, horsekeeping and other principal and accessory uses. 3. The Land Use Element of the General Plan provides that the City shall maintain strict grading practices to preserve the community's natural terrain (Lane Use Element, page 16). The proposed mitigation of the landslide on the site would require nearly 80% of proposed parcel 2 to be excavated to a maximum depth of 70 feet at one point. Nearly two acres of surface area would be excavated. The amount of grading required for the subdivision is inconsistent with the goal of preserving the natural terrain. B. The design or improvement of the proposed subdivision is not consistent with the applicable general and specific plans. (Rolling Hills Municipal Code Section 16.12.150(2) and Government Code Section 66474(b). With respect to this requirement, the CONFIDENTIAL 930817 R6980-00303 to 1681326 1 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. oC O N F I D E N T I A t Planning Commission finds that the subdivision would involve substantial grading which is inconsistent with the goal of preserving the natural terrain (Policy 3.2 of the Land Use Element) and would create a potentially buildable lot only after extraordinary mitigation measures are utilized which is inconsistent with Policy 3.2 of the Safety Element). C. The site is not physically suitable for the type of development. (Rolling Hills Municipal Code Section 16.12.150(3) and Government Code Section 66474(c)). With respect to this requirement, the Planning Commission finds that nearly 80% of the proposed parcel is in a landslide area (Reports from Mr. Ng and Mr. Ehlert). Although mitigation measures have been proposed to reduce the geologic risk of development on the site, those measures, including the extensive grading of nearly 2 acres of the site, are inconsistent with the General Plan as discussed in prior paragraphs. D. The design of the proposed improvements are likely to cause substantial environmental damage. (Rolling Hills Municipal Code Section 16.12.150 (5) and Government Code Section 66474 (e)). The significant grading required for the project will alter a large area of natural terrain, and result in graded benches of soil, leaving the terrain in an unnatural condition. In addition, the project will require the excavation of large quantities of soil, storage of the soil on the site and then movement and recompaction of the soil back into place. This will result in long periods of grading and substantial amount of dust and noise and other related environmental impacts. E. The design of the subdivision is likely to cause serious public health problems. (Rolling Hills Municipal Code Section 16.12.150 (6) and Government Code Section 66474 (f)). The proposed stabilization of the site will require excavation, storage of soil on -site and then recompaction. Significant amounts of soil will therefore be moved at least twice which will result in substantial amounts of dust, vehicular emissions and noise which will negatively affect the air quality and may have detrimental health impacts to persons in the surrounding area. F. The design of the subdivision or the type of improvements will conflict with existing and proposed easements for access (Rolling Hills Municipal Code Section 16.12.150 (7) and Government Code Section 66474). The existing lot and proposed parcels have perimeter easements for trails, utilities and access purposes dedicated or proposed to be dedicated to the Rolling Hills Community Association. The substantial excavations required on proposed parcel 2 will interfere with portions of those easements and render them unusable until the remediation of the site is completed. CONFIDENTIAL 930817 R6980-00303 to 1681326 1 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. �C0NF1DENT1ALG G. The proposed subdivision will establish parcels which cannot be developed in conformance with the Uniform Building Code for the following reasons: 1. Section 308 (b) prohibits the issuance of a grading or building permit when the county engineer finds that the area proposed for development is subject to landslide hazard. (Section 308 (B)(2)). An exception to this rule is provided in circumstances when the applicant has submitted a geological and/or geotechnical engineering report which shows to the satisfaction of the building official that the hazard will be eliminated prior to the use or occupancy of the land or structures by modification of the topography, buttressing, a combination of these methods, or by other means (Section 308 (B) (2),) . 2. The Commission has asked the applicant to obtain written assurance from the. County Engineer that the proposed measures to grade and buttress the site will be sufficient to eliminate the hazard to potential structures on proposed parcel No. 2. The County Engineer has been unwilling to provide written assurance on this issue. 3. The City of Rolling Hills has a history of landslides. Most recently, an entire area of the City known as the Flying Triangle has suffered from extensive and on -going landslides which has resulted in the destruction of numerous homes, roads and infrastructure in the City. In several instances, this destruction has occurred despite engineering studies which purported to show the sites suitable for development through use of grading and buttressing methods similar to those proposed by the applicant. These methods have failed in numerous instances in the City. 4. Consequently, the Commission finds that development on landslides in the City, despite the proposed use of measures to prevent landsliding on the site, have not been and are not sufficient to provide assurance that the landslide hazard will be eliminated. Approval of this application may also be used as a precedent for approval of other lots containing a landslide. In addition, by the approval of an additional lot in a landslide area, the Association may incur additional costs in the future if the development of the lot results in destruction to infrastructure dedicated to, owned and maintained by the Association. CONFIDENTIAL 930817 R6980-00303 to 1681326 I THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. • RICHARDS, WATSON & GERSHON MEMORANDUM TO: Lola Ungar, Principal Planner FROM: Taylor L. Fitzmaurice DATE: April 20, 1993 SUBJECT: Nuisance Abatement at 62 and 63 Portuguese Bend Road The purpose of this memorandum is to provide an example of the notice the City of Rolling Hills should send. to the owners of the above -referenced properties regarding interim action to abate the property nuisances. Please note, this example is tailored for 63 Portuguese Bend Road. CERTIFIED MAIL Re, NUISANCE ABATEMENT AT 63 PORTUGUESE BEND ROAD Dear Mr. Marshak and Mr. Sullivan: As you know, on July 27, 1992, the City Council of the City of Rolling Hills approved Resolution No. 689 which declared that the damaged swimming pool on the subject property constituted a public nuisance under Chapters 8.24 and 8.28 of the Rolling Hills Municipal Code, in that it is injurious to the public health, safety and welfare. Pursuant to the Resolution, the City Council ordered that the damaged swimming pool be repaired or filled in by November 12, 1992. The deadline for completion has passed and the work has not been done. Once again, it is imperative that you or your representative make every effort to comply with the City's requirement that the swimming pool be repaired or filled. in. In addition, because you have failed to comply with the requirements of the Resolution, the dangerous condition created by the damaged swimming pool continues to exist; thus, the City has determined that interim protective measures must be taken to abate the nuisance. TLF:tlf 86980.01018 1160390 a�> QA 61 0°4' RICH/VMS, WATSON & CiER$HON -M MORANDUM Lola Ungar, Principal Planner April 20, 1993 Page 2 YOU .ARE THEREFORE BEREBY notified that as an interim safety measure pending abatement of the property nuisance you must erect a fence securing the pool and any debris associated therewith, If you fail to erect a fence within ten days from the date of this notice, the City will abate the property nuisance by causing a fence to be erected as specified herein. The City will notify you in writing by certified and regular mail of the cost of erecting a fence and payment in full will be due to the City within ten days of the date of the mailing of the notice. If payment is not received, the City will place the total costs on the property tax bill as a Special Assessment according to Section 38773.5 of the California Government Code. Please be advised, by partially abating the nuisance in the interim as specified herein, the City in no way waives and/or limits its authority to fully abate the nuisance at a later time by filling in the swimming pool and removing any debris associated therewith at your expense. TLF:tlf 86980.01013 1160390 • elty o/ Rolling JUL • INCORPORATED JANUARY 24, 1957 CERTIFIED MAIL November 25, 1992 Mr. and Mrs. James Evans One Skidmore Road Winter Haven, Florida 33884 NO. 2 PORTUGUESE BEND ROAD ROLLING HILLS, CALIF. 90274 (310) 377.1521 FAX: (310) 377.7288 SUBJECT: NUISANCE ABATEMENT AT 62 PORTUGUESE BEND ROAD (LOT 34 -FT) Dear Mr. and Mrs. Evans: At its regular meeting on November 23, 1992, the Rolling Hills City Council conducted and concluded a public hearing regarding the existence of a public nuisance on your property located at 62 Portuguese Bend Road (Lot 34 -FT). The hearing was the culmination of a proces's begun several months ago, which included eight hearings before the Council, one of which you attended, a field trip by the Council (the minutes of which are attached), review of the geologic conditions of the property by a City hired geologist, review of the property by the County Building and Safety Division at the City's behest, and testimony by various persons attending the hearings. Copies of all staff reports, documentary evidence, and minutes are attached for your review. For your information, testimony presented at the November 23rd hearing included information about a horse that jumped a fence on the Marin property, crossed the vacant field along Portuguese Bend Road, entered your property and became caught in a deep fissure on the afternoon of the 23rd. The horse was rescued unharmed with the use of ropes and the aid of the Fire Department. Upon closing the public hearing, based on the written andoral testimony presented, the City Council concluded that a public nuisance exists on your property pursuant to Chapters 8.24 and 8.28 of the Rolling Hills Municipal Code. This conclusion was based on the fallowing factual findings: 1. Loose debris on the property is hazardous and unsightly and constitutes a substandard condition within the meaning of Chapter 99 of the Building Code; 2. Remaining remnants of concrete walks, decks, walls, and motor court are in a hazardous conditi.on., are unsightly and constitute a substandard condition within the meaning of Chapter 99 of the Building Code; Printed on Recycled Paper. • November 25, 1992 Page 2 3. The pool and foundation remnants are hazardous and unsightly; 4. The fissures on the property are dangerous and in addition, allow for infiltration of rain and runoff into the landslide plane, which causes lubrication of the slide and accelerates slide movement. The City Council found, pursuant to Section 8.24, that the above conditions are injurious to public health and safety, interfere with the comfort and enjoyment of property and are injurious to the stability of real property, thereby.constituting a nuisance. The Municipal Code provides that owners -of property must maintain their property free of any nuisance. Accordingly, the City Council ordered that the above -described nuisance conditions be abated as follows, and in accordance with the following timetable: 1. Within fifteen (15) days of your receipt of this letter, you are ordered to remove from the subject property all loose debris located on the property, including but not limited to, boards, pipes, discarded material and other such material. • 2. Within thirty (30) days of your receipt of this letter, you are ordered to: i a. Excavate concrete walks, decks, retaining walls, asphalt driveway and motor court and place the material into the swimming pool; and b. Retain the services of a registered civil engineer to prepare a study regarding the availability of soil on the site to fill all fissures and cover over the pool and the foundation. The study is to be completed and a copy delivered to the City within the thirty day time frame. Mr. and Mrs. Charles Raine stated on the record that they would make available to you all soilwhich has accumulated on their property at 2 Pinto Lane (Lot 35 -FT) for this purpose, and would allow you to enter their property to remove such soil. 3. Within forty-five (45) days of your receipt of this letter, you are ordered to: -a. Implement the plan prepared by the civil engineer and approved by the City to fill all fissures on the property and cover the pool and foundation with soil on the site and from 2 Pinto Lane (Lot 35 -FT). It may be necessary for you to obtain permits for this work; if so, the City will expedite issuance of such permits and not count the time required for issuance towards the deadline. November 25, 1992 .Page 3 b.- If it is not possible to completely cover the pool and foundation, a substantially built six (6) foot chain link fence mustbe constructed around the pool and foundation area. The fissures must be filled. Your cooperation in performing the above work within the established deadlines will be appreciated. If the work is not performed as indicated, the City will cause the work to be performed at your expense. These costs could be attached as a lien against your property. Feel free to call me at '(310) 377-1521 if you have any questions. Sincerely, Vted LOLA UNGAR PRINCIPAL PLANNER cc: Mayor Swanson and Members of the City Council Mr. Michael Jenkins, City Attorney Mr. Craig Nealis, City Manager Ms. Peggy Minor, Rolling Hills Community Association Manager Ms. •Lata Thakar, District Engineer, L.A. County Building & Safety Ms. Clarissa Watson, District Engineering Associate, L.A. County Property Rehabilitation • r_ P -752 762 L466 RECEIPT FOR CERTIFIED MAIL NO INSURANCE COVERAGE PROVIDED • NOT FOR INTERNATIONAL MAIL (See Reverse) Sent to ih/m .71-07), es JI I$ Street an No. /) £9j Sit;�rnor� OL P.Qi. State 4P and ZCode A 338E- . _Postage Certified Fee a.90 Special Delivery Fee Restricted Delivery Fee Return Receipt showing to whom and Date Delivered Return Receipt showing to whom, :Date _ - s of Delivery ees sq q m SENDER: . -2 • Complete items 1 and/or 2 for additional services. rA • Complete items 3, and 4a & b. ami • Print your name and address on the reverse of this form so that we can •• iD retum this card to you. • Attach this form to the front of the mailpiece, or on the back If space doesnot permit. 9 • Write "Return Receipt Requested" on the mailpiece below the article number. 4▪ + • The Retum Receipt will show to whom the article was delivered and the date CO delivered. ▪ 3. Article Addressed to: m . • m'. )7 G SelkCspor // e. G (JG/, r_ / O rt O Q cc z W is • 6. Signatur 0 5. Signatur essee) 33&&V also wish to receive 'the following services (for an extra fee): 1. 0 Addressee's Address 2. 0 Restricted Delivery Consult postmaster for fee. 4a. Article Number P `752. 76.2. 9.6 4b. Service Type ❑ Registered 0 Insured �C tfied.2 • 0 COD ❑ EXpress Mail 0 Return Receipt for • . Merchandise 7. DDaate of Delivery Agent)... i t . ! . s s 8. Addressee's Address (Only if requested and fee is paid) PS Form 3811, December 1991 * U.S.G.P.O.:1992-307-530 ,DOMESTIC RETURN RECEIPT • RICHARDS, WATSON & GERSHON ATTORNEYS At LAM —A PROFESSIONAL CORPORATION 333•SOUTH HOPE STREET, 38YM FLOOR LOS ANGELES, CALIFORNIA 90071-1469 Switchboard (213) 626-8484 Fax (213) 626-0078 FAX COVER SHEET TO: i NAME FAX #1 COMPANY/DEPARTMENT VOICE O1 `1 Ms. Lola Ungar (310) 377-7288 City of Rolling Hills (310) 377-1521 2 3 4 5 FROM: T. Fitzmaurice 213 626-0078 RW&G 213 626-8484 A DATE: 04/20/93 stream DOCUMENT(S) TRANSMITTED: MESSAGE: OUR F1LE NO.: R6980-01018 TOTAL PAGES (INCLUDING THIS PAGE): Proposed Nuisance Abatement Letter .Memo re Proposed Nuisance Abatement Letter /// 3 ATTENTION FAX OPERATOR AND OTHER RECIPIENTS TH15 FAX CONTAINS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INTENDED RECIPIENT NAMED ABOVE. IF YOU ARE NOT THE INTENDED RECIPIENT. YOU ARE HEREBY NOTIFIED THAT ANY COPYING OF THIS FAX OR DISSEMINATION OF IT OR ITS CONTEN1S To ANYONE OTHER THAN THE INTENDED RECIPIENT IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS FAX IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE TO ARRANGE ITS RETURN TO US AT OUR EXPENSE. IF YOU HAVE DIFFICULTY RECEIVING ANY PAGES, PLEASE TELEPHONE US AT (213) 626-84a4. Time Sent: operator: - 1. 2. 3. 4. S. v Billing No.: R6980.01018 User Mo.: 1440 2FAX-LJ2.FRM LoI- Y • • RICHARDS. WATSON & GERSHON MEMORANDUM To: Lola Ungar, Principal Planner FROM: Taylor L. Fitzmaurice DATE: April 20, 1993 SUBJECT: Nuisance Abatement at 62 and 63 Portuguese Bend Road The purpose of this memorandum is to provide an example of the notice the City of Rolling Hills should send to the owners of the above -referenced properties regarding interim action to abate the property nuisances. Please note, this example is tailored for 63 Portuguese Bend Road. CERTIPIED MAIL Re: NUISANCE"ABATEMENT AT 63 PORTUGUESE BEND ROAD Dear Mr. Marshak and Mr. Sullivan: As you know, on July 27, 1992, the City Council .of the City of Rolling Hills approved Resolution No. 689 which declared that the damaged swimming pool on the subject property constituted a public nuisance under Chapters 8.24 and 8.28 of the Rolling Hills Municipal Code, in that it is injurious to the public health, safety and welfare. Pursuant to the Resolution, the City Council ordered that the damaged swimming pool be repaired or filled in by November 12, 1992. The deadline for completion has passed and the work has not been done. Once again, it is imperative that you or your representative make every effort to comply with the City's requirement that the swimming pool be repaired or filled in. In addition, because you have failed to comply with the requirements of the Resolution, the dangerous condition created by the damaged swimming pool continues to exist; thus, the City has determined that interim protective measures must be to abate the nuisance. TLF:tlf 86980-01018 1160390 mot!ARDS, WATSON & GERSHON MEMORANDUM Lola Ungar, Principal Planner April 20, 1993 Page 2 YOU ARE THEREFORE HEREBY notified that as an interim safety measure pending abatement of the property nuisance you must erect a fence securing the pool and any debris associated therewith. If you fail to erect a fence within ten days from the date of this notice, the City will abate the property nuisance by causing a fence to be erected as specified herein. The City will notify you in writing by certified and regular mail of the cost of erecting a fence and payment in full will be due to the City within ten days of the date of the mailing of the notice. /f payment is not received, the City will place the total costs on the property tax bill as a Special Assessment according to Section 38773.5 of the California Government Code. Please be advised, by partially abating the nuisance in the interim as specified herein, the City in no way waives and/or limits its authority to fully abate the nuisance at a later time by filling in the swimming pool and removing any debris associated therewith at your expense. TLF: tl f R6980-01018 1160390 TO: ATTENTION: FROM: SUBJECT: • C1i / Rollin INCORPORATED JANUARY 24, 1957 AGENDA ITEM 6-4 NO. 2 PORTUGUESE BEND ROAD ROLLING HILLS, CALIF. 90274 (310) 377-1521 FAX: (310) 377-7288 MEETING DATE 11/23/92 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL CRAIG R. NEALIS, CITY MANAGER LOLA M. UNGAR, PRINCIPAL PLANNER en CONTINUATION OF PUBLIC HEARING OF CONSIDERATION OF NUISANCE ABATEMENT AT 62 PORTUGUESE BEND ROAD (LOT 34 -FT) OWNERS: MR. AND MRS. JAMES EVANS BACKGROUND 1. Members of the City Council and our consulting geologist Mr. Arthur Keene inspected the property at the subject site on Tfiu^rsda T __ y,_ _Nouember 5; 192;: 2. As had been_proposed by the Evanses, Mr. Keene suggested that :the debris. _could be removed from_the site and- that the Ffoundation courd be covered withbf1—�from the "site. He suggested leaving as many trees and shrubs as possible during the excavation. Mr. Keene also expressed the opinion that a certified civil engineer would need to study the amount of soil available on the site to determine the feasibility of this recommendation. 3. When this information was explained to Mrs. (Evans :by.telephone;, r- r -'No ember 18, 1992, she was notcooperat-five: She refused to consider the overcovering of the foundation at the subject site unless the house at 2 Pinto Road is removed. 4. As noted in their attached correspondence, none of the experts recommend removal of the existing foundation. FInslfe�d;-they5. agree with the Evansesproposal to;_remove _ai the debris, Texcava-te all walks, decks, retaining walTs arid —asphalt driveway into the old -swimming pool, and_ smooth_ out the property for drainage -improvement. The County also recommends the fencing of the swimming pool area and foundation. RECOMMENDATION It is recommended that the City Council review the documents, take public testimony and direct staff to prepare an appropriate resolution. Cr Printed on Recycled Paper. City 0/l?lfi,.y Jd.•!L• INCORPORATCD JANUARY 24, I93: '-October 22,--1992' Honorable City Council City of Rolling Hills California Gentlemen: SUBSTANDARD PROPERTY NO. 62 PORTUGUESE BEND ROAD ROLLING HILLS, CALIFORNIA 140. 1 PORTuGUISS BIND ROAD ROLLING WILLS, CALIF. 40174 (1 IV 377.1921 d C!k - -. - ii ' LCI OCT 22 ; 92. CITY OF ROLLING HILLS The City Building Official determined by inspection that the privately owned property isaubstandard;as listed in the letter of March 25, 1992, and ordered `e3mprdt* demo! ran:w thin 3:0=days :.after receiptofTett-sr. The property owner and all interested parties were notified of the_ substandard conditions. This action was necessary to protect -- public safety and welfare and to remove from the community &menace- } o pubf"ic hea1th and morals. Authority therefore, is contained in Chapter 99 of the City of Rolling Hills Building Code. We have reviewed Mr. and Mrs. James Evans September 7, 1992, letter to the City of Rolling Hills, and Doctor Perry L. Ehlig's May 17, 1992 letter to Mr. and Mrs. Evans concerning the subject property. Based on the information furnished to us, including independent reviews by private consultant Engineering Geologist, Mr. Arthur Keene, and the Department of Public Works Geologist, Mr. Dave Poppler, we` recantend _ the following_ _ action bo _ immediately iniplemented ,o .temporarily abate thepublic-_nuisance: Toremojo alas_loose_:debrie_such--as--boards,_.pipee;: etc:; :w ick `-fiat been dumped one property. To: excavate_ concrete:waiks,-- decks, retaining Ovalle and asphalt 7drive/motor court into_ the;oId__swimmf3:ng pool ' `bm Post -ft" bra • fax transmitts' memo 767 Honorable City Council October 22, 1992 Page 2 3. That a substantially built six feet �(.6') :high Rhein la-nk--fence be installed around the swimming pool and foundation area to prevent unauthorized entry or access thereto. Very truly yours, T. A. TIDEMASON City Bui , g Of CLARISSA WATSON District Engineering Associate CW:csc B-6/DISKCC/62PORT/12.02 T' 1G^ October 20, 1992 TO: Tom Remillard Building and Safety Division Attention Leta Thakar Lomita D1istrict Office FROM: Victor C. Martine Materials "Engineer 'ig Division 62 PORTUGUESE BEND ROAD AND NO. 2 PINTO, CITY OF ROLLING HILLS References 1. Letter report from Arthur G. Keene, September 25, 1992, to the City of Rolling Hills. 2. Letter report from Dr. Perry L. Ehlig, May 17, 1992, to Mr. and Mrs. James Evans. 3. Letter from Mr. and Mrs. James B. Evans, September 7, 1992, to the City of Rolling Hills. As request, we have reviewed the above references relative to the subject properties. On the basis of information -provided in the referenced engineering geology reports, the following is concluded and should be considered. 1. Movement continues in both the main and "Teardrop" portions of the Flying Triangle landslide undarcomplex current conditions continue Both move and deteriorate with time subject properties at No. 2 Pinto and No. 62 Portuguese Bend Road are on the landslide, and are affected by, this movement. 2. tiThe thr`eatT.`to the dwelling at No. 2 Pinto from potential hazards from continued movement and deterioration of the Teardrop slide mass vmiins' (structure ordered removed September 1985, per Reference 3) and over asconsideration' ; rtiy hrsa from the demolished dwe11Tng cOncrati lab(s) upslope at 62 Portuguese Bend Road (Ref. 1 and 2). 3. Any attempt to "improve" current conditions at the properties, such as recommended in Reference 1 and 2, should be -prs eG ded` thorough geotechnical -analyst s --and asses:srre t:with data from both an engineering geologist and a geotechnical poat•tt" brand fax transmittal memo 7871 Tom Remillard October 20, 1992 Page 2 engineer, particularly for recommended grading and especially relative to potential effects on adjacent properties, slide stability, and area access and drainage. If you have any further questions, please contact Dave Poppler at (818) 458-4925. DP:sm ME-3/me:CityofRH residential for development groundwater ARTHU E R G. KENE • tnoi aerting feda9i,rf, 6% 16 2601 E. Victoria St.. 1301. Rancho Dominguez. CA 90220 (310) 537-6615 City of Rolling Hills, Attn: Lola Ungar, Principal Planner environmental rope geohydrology • underground tanks September ?5, 1992 Subject: NUISANCE ABATEMENT of 62 Portuguese Bend Road (Lot 34 FT) References: 1) Letter from Mr.& Mrs. James B. Evans - Sept. 7, 1992 2) Letter from Dr. Perry Ehlig to the Evanses May 17, 1992 3) Flying Triangle Lanslide, City of Rolling Hills,... by A. G. Keene.__. - — -- Geologic Society of America, Cordilleron Section, 82nd Annual Meeting Guidebook, Nov. 25-28, 1986 Dear Lola, The enclosed letter constitutes my response to your letter dated September 16, 1992 in which you requested that I comment on References 1) and 2) above, as yell as items 4-8 inclusive, cited in your letter of request. I concur with Ehlig's observations and conclusions, with one - exception: I don't believe erosion of the tributary will cause the Teardrop slide to accelerate by removal of support. The Teardrop slide plane is curved upward and above the stream • (2) • • invert, and basically is parallel to the stream direction. Its movement is controlled by the Main Slide mass which is affected by drainage erosion and surface infiltration in Klondike Canyon. My responses are sequential in the order presented by you. Item (•4) As the foundation slab continues to move, can the slab block the canyon? Answer: The slide debris on which the slab rests will eventually move toward the tributary as well as that portion of No. 2 Din to which failed in 1980. The slab portion will not block the tributary drainage, but will impede flow. This will cause a maintenance problem to the Association/City over the years "down the road". That portion of No. 2 Pinto remaining :habitable :will continue its course toward Klondike Canyon during the next 25 years. Unfortunately, No. 2 Pinto still contributes effluent to the Main mass slide planes' east edge. Item (5) Will the use of heavy trucks and equipment to take out the foundation slab aggravate the situation? Answer: I don't believe vibrations will cause the slide to accelerate during dry summer weather, but may help consolidate the slide debris instead by closing fissures and filling depressions. However, I do not advise doing this kind of work when the ground is wetted from rains. Rains will develope hydrostatic pressures along the Teardrop slide plane in which case the slide, already moving from such rains, might be helped along by vibrations resulting from heavy A. G. KEENE. STATE CERTIFIED ENGINEERING GEOLOGIST 103. 16, Tel. (213) 537 6615 2601 E. Victoria St., -I 308, Rancho Dominguez, CA 90220 (3) earth moving equipment. Item (6) How will heavy rains affect the property and the slab? Answer: Heavy rains Will cause the slide to re -activate or accelerate even if the slide has continued to move with or without incident rainfall. The slab will simply "float" along with the debris; it will not move independently. The slide debris and slab will both eventually end up in the tributary. Slow landslide movement over the years will allot: fines to be washed dove stream, but large rocks and concrete will act like "rip -rap" velocity reducers.. Item (7) Can water runoff from the front of the Bisignano residence, 18 Crest East be equalized? (Don't know if this is part of your expertise). Answer: Yes; provide drainage to Crest fast Road via subdrains and a berm on the crown area of the slide scarp in the rear of the property. Item (8) Recommendations: a) Allow Evans to proceed with dumping debris into the pool and smoothing out the property for drainage improvement. b) Provide temporary 1;2 CMP drains in tributary to inhibit infiltration of canyon drainage into the Main slide underlying No. 2 Pinto habitable structure. c) Cause owners of No. 2 Pinto to regrade adjacent slope as recommended by Ehlig. A. 6. KEENE. STATE CERTIFIED ENGINEERING GEOLOGIST NO. 16, Tel. (213)537 6615 2601 E. Victoria St., f 308, Rancho Oouinguez, CA 90220 • d) Installation of pumping wells as recommended by Ehlig should he initiated. In previous years, I recommended to the City Council that this 1,2 done. ° Sincerely y rg.,- i � - - fc• ., A. G. Keen Tri - /�• A. 6. KEENE, STATE CERTIFIED ENGINEERING GEOLOGIST NO. 16, Tel. (213) 537 6615 2601 E. Victoria St., 1308, Rancho Doairguez, CA 90220 ,54111", 1992 SEP 11 1992 • t epd. K .4 r t► ii ?75:01 • •n., rryi%u, a ` VV1'V tits. Lola VVti "r1' Re ;ids, CA :(P74 Der tt.L CITY Of ROLLMG Eadoftd t the tifemitke pirtixt, ed for be City Caitiff* on Sept. 14,1M. 1 absid ktter fradr. Per/ Thug dated Mai 17, 1 c here is r tte ..mm a{: R4. Ye re. ' 4 x po1e1'/aldar r to you & rs es,Wilk* 1.IXTOGra. A. roil oye airs itat i,1µ toes (b?Potupeu itd. aid Pito Rd ' }�d � � � n .1�5. Ye a�aatrrk tit te reply t B. Ye to kestigated futility Ito:# email; testi. The as# dote rime itfor �t ooati fat tine. Ye Y era efetoldbyyoutoWyeftnpbctfey oari k* ad ptrpsts, sitit ireC. b *WO goo' m crders,rx abed ft* ha it 2 Pilo Rd. to ki tut t; igis ariprikfts rot sce); ati the hi Mike. "Ns bat NJ brsoff.Yere , Kt! �, :�fe�af,►e.�yr�.1y�� 1 � t�Y� sbn T � ,�� , el�:�tY. kgaik ( ".e , t n n n re r tg pt itpr sei t cm. ii. it�rJ liDH1 M/F} , ", Y.ti t 1 T &Ida debris Nth t went et real Artie tratag *Et a'ha>re went r lit fen hi) t tel,�b a thim a1bv ore 1, i Dr. 9 ed. 1,, ^Y ' ;P4 v■ % i 57iiite'; ��''vr11 Wyvl1 hi. pr %r from x.16, Me.cie � w. a Pyle rrrr prV,14 r �y from vn rr � �ni atmtb him after rJnsionN. • • B. At * se* tics you (wail for City of Rolling ;1 e!'a Cecrant kw.) arioyed rn t� a' •AM'v M • • !Oft. x. fir, W. ♦: is. ��u�•sn. 5V ivit. /i v td C �(• ±�,a'w iRi., • t� i � �n. tz err v'K, elypro me Klieg) g; �11t IYrial r+wr me !" w wry w w�rr..y Crver to bot ; Ti r * liter the dit : xC. k ow letter of protest dated Dec. 20.1978, we you if's* 9 � tak,at futizeaotienr ►ea;ltie, fig; ►# th a esrt Mk your rem (Ref.' P . .,�?ity. v CA aril. *des 1978; Dec.?, 1978; V . ! ,1978 IVIIV ,) Yex1,11tv11tY tatxtitvr, NO USW A. Ye lift tlie pry oletedof OW Yiier) weaved kfrien 19Z, excll for the sit re"' sted to be left. B. itivoodrldbixidetrivedgedtro rt, took till from knollc :aisoato V . J11es� hidden: ��Seroadiosre � ,� � Or d„ d) rid the ski does act nth vith r el is *tied ae)@ a 1 Batt bon tobeifested raffle*: a ld baYig forts tie trtb from the sit E. tut aitoo jbeextrernli agent avv imon the sib d go ldr !j ao~e. diay�y e4 wee " ai i ord r Watt; the sit, dm actossRol* Ibls roar. T act We *Emig effitts after a yep of he rays. � of le Wit moll;m Y# love suffered sough , bot fn3lot, ' aad n.•ma r ,� - f, from bs1 eta/ t dnut ea k l ftt+ ,m; es eery tit mem AV hayeulleriormotives forstartirig aaew noble;;; ' . A. *fever -mill propose to rear aillo deg zkw boar; r etviti" ; • .- �r ,v! ! rir vrei v w,� Yyl __d laI 1e ttr- r; .rt info iji�y� a4i��j'-�irriv - • /11Y Yfi YN 1t %j%jj/�y ,• exoavat terial ; appro tek 3 tot y{d: t 7 r-_ tt Post flY T►erz ' • E. Ye mot spendm we the the *nal$4,O Ye all hale spent had ye rtilleliti 1 Ye Kaye had nut of lepl ha#les ald carnal &ess from a situation Yhith Ye ' not ,�1 r.�►I�rt�P1 741Mtiiu A ^••h"•u\I.\ \V Y�MI1�Il1V1.\• sutZ • 1 ■ aril tit' s. E. `y 1 985 eye progcsed. +K . YeF tort • Mr. and Mrs. James Evans One Skidmore Road Winter Raven, Florida 33884 Dr. Perry L. Ehli= 410 Consulting Geologist 1560 Tie del Ray South Pasadena, CA 91030 (213) 255-7873 SEP111992 CITY of. ROWNG HILL - May 17, 1992 Dear Mr. and Mrs. Evans: At your requested, I visually examined your property at 62 Portuguese Bend Road in the active Flying Triangle landslide, City of Rolling Rills, California. Specifically, my inspection vas made on May 16 to determine if the foundation of your former house is likely to topple onto, or otherwise threaten, the'house on the adjacent property at 2 Pinto load. At its closest point, tbe foundation of your former bouse is about 100 feet Uphill from the house at 2 Pinto Road. Both of tbe lots are within the active Flying Triangle landslide. However, your foundation is in a part of the slide known as the Teardrop slide. It move• faster than the part vhieti contains the downhill house. Measurements by the Los Angeles County Surveyor indicate survey sinusent RH-4, located 60 feet northeast of your foundation mowed 4.37 feet in the direction of south 37. degrees vest during the period between 29 Marcb•1990 and 2S November 1991. This is equal to an average rate of 2.63 feet per year. Duran; the same time interval, monument RR -6, located in the salt slide 400 feat vest of your . foundation, moved 1.35 feet in the direction of south 27 degrees vest. This is -- equal to 0.81 feet per year. The house at 2 Pinto Road is probably moving at about the sane rate as monument 18-6. If this is correct, your foundation moved 1.6 feet faster per year than the house at 2 Pinto Road during the subject time period. During the past tinter, rainfall vas 40Z above average and included two intense storms In March. This caused slide movement to accelerate. About 6 to 8 inches of offset has occurred along the east edge of the slide on your lot since the last intense rainfall in mid ?arch. This represents a rate of somewhat over 0.1 inches per day or 3 to 4 feet per year. High rainfall during future years may cause the Teardrop slide to cove faster than its present rate bat I doubt it will ever again reach rates greater than one inch per day, as it did is 19$3 and 1986. This opinion is based on the fact that mass has bean displaced from the uphill part of the Teardrop slide, vrbera it exerts a net driving force, to the downhill part of the s11de where it exerts a net resisting force. If nature is allowed to tats its course, the Teardrop slide vill probably slaw until it moves at tba same rata as the main slide. Based on the most recent survey data and ay observations, it is ay opinion that your foundation does not constitute an immediate threat to the house at 2 Pinto Road. When averaged over a period of several years, including years with above average rainfall", / expect your foundation to converge with the house at 2 Pinto Road at a rate of less than 4 feet per year. At that rate it would take at least 25 years to move next to the house at 2 Pinto Road. Ehlig letter of t. !2 to Mr. and Mrs. James Evan. -ge 2. Although I do not Alive your foundation constitutes a hazard to the nearby house, the steep bank of slide debris adjacent to the house does constitute a potential hazard. If the slide debris became saturated, the bank might fail by slumping. In this regard the house is in a precarious location. The risk could be reduced by flattening the slope along the edge of the teardrop slide and regrading the slide surface so as to create positive drainage. At present, much of the ground is extensively fissured and contains local depressions. During rainfall, runoff enters the ground through fissure and in depression. Something should also be done to prevent runoff from eroding the canyon along the east edge of the slide. The erosion reduces lateral support, thereby causing the 'rate of movement to increase. The runoff also permeates into the slide material and weakens it. If I am not mistaken, the homeowners association is responsible maintaining proper drainage along the canyon bottom. It is most unfortunate that the community has been.unvilling to support efforts to sloe or stop the slide. Simple actions such as installation of teaporary drains in the canyons on either side of the slide and installation of one or two wells mould be highly beneficial. Feel free to call upon me if you need additional information. With best regards, -10 L. Ehlig/�h.D., C.E.C. 533- • Mr. and Mrs. James Evans One Skidmore Road Winter Haven, Florida 33884 Dear Mr. and Mrs. Evans: Dr. Perry L. Ehlig 410 Consulting Geologist 1560 via del Ray South Pasadena, C1 91030 (213) 255-7873 LIU 1 SEP111992 CITY OF. ROWMG HILL! May 17, 1992 At your requested, I visually examined your property at 62 Portuguese Bend Road in the active Flying Triangle landslide, City of Bolling Hills, California. Specifically, ay inspection was made on May 16 to determine if tbe foundation of your forcer house is likely to topple onto, or otherwise threaten, the'house on the adjacent property at 2 Pinto load. At its closest point,-. the foundation of your former house is •bout 100 feet uphill frou the house at 2 Pinto Road. Both of the lots are within tbe active. Flying Triangle landslide. However, your foundation is in a part of the slide known as the Teardrop slide. It cove. faster than the part which contains the downhill house. Measurements by the Los Angeles County Sure yor indicate survey monument RR -4, located 60 feet northeast of your foundation, moved 4.37 feet in the direction of south 37 degrees vest during the period between 29 March•1990 and 25 November 1991. This is equal to an average rate of 2.63 feet per year. During tbs same time interval, monument RR -6, located in the mats slide 400 feet vest of your . foundation, aoved 1.35 feet in the direction of south 27 degrees vet. This is equal to 0.81 feet per year. The house at 2 Pinto load Is probably moving at about the same rate as monument RR -6. If this is correct, your foundation moved 1.6 feet faster per year than the house at 2 Pinto Road during tba subject time period. During the past winter, rainfall vas 402 above average and Includedfio intense storms in March. This caused slide movement to accelerate. About 6 to 8 inches of offset has occurred along tbe east edge of the slide on your lot since the last intense rainfall in aid Marcb. This represents a rate of somewbat over 0.1 inches per day or 3 to 4 feet per year. High rainfall during future years may cause the Teardrop slide to 'Rove faster than its present rate but I doubt it will ever again reach rates greater than one inch per day, as it did is 1983 and 1986. This opinion is based on the fact that mass has been displaced frog the uphill part of the Teardrop slide, vbare it exerts a net driving force, to the downhill part of the slide vbere it exerts a net resisting foree. If nature is allowed to take its course, the Teardrop slide will probably slow until it moves at the same rata as the main slide. Based on the most recent survey data and ay observations, It is ay opinion that your foundation does not constitute an immediate threat to the house at 2 Pinto Road. When averaged over a period of several years, including years with above average rainfall, I expect your foundation to converge with the house at 2 Pinto Road at a rate of less than 4 feet per year. At that rate it would take at least 25 years to move next to the house at 2 Pinto Road. Shift letter of &. 12 to Mr. and Mrs. James Evan. ge•2. Although I do not live your fouodatioo constitute Sa earby hou the steep bank of slide debris adjacent to the house does con stituteard to eanpotentialae, hazard. If the slide debris became saturated, the bank might fail by slumping. /n this regard the house is in a precarious location. The risk could be reduced by flattening the •lope along the edge of the teardrop slide and regrading the slide surface so as to create positive drainage. At present, much of the ground is extensively fissured and contains local depressions. During rainfall, runoff enters the ground through fissure and in depression. Something should also be done to prevent runoff from eroding the canyon along the east edge of the slide. The erosion reduces lateral support, thereby causing the 'rate of movement to increase. The runoff also permeates into`the slide material and weakens it. If I am not mistaken, the homeowners association is responsible maintaining proper drainage along the canyon bottom. It is most unfortunate that the community has been.unvilling to support efforts to sloe or stop the slide. Simple actions such as installation of temporary drains in the canyons on either side of the slide and installation of one or two yells would be highly beneficial. reel free to call upon me if you need additional information. With beat regards, C.E.C. 333 OCT 21 '92 07:18 900 S.FPEMONT AVE. ILHAMBRN C. P.1 (` October 20, 1992 TO: Tom Remillard Building and Safety Division Attention Late Thakar Lomita D .st ict Office :,OM: Victor C. Martine Materials Engineer Division 62 PORTUGUESE BEND ROAD AND NO. 2 PINTO, CITY OF ROLLING HILLS Ref erenceg 1. Letter report from Arthur G. Keene, September 25, 1992, tc he City of Rolling Hills. 2. Letter report from Dr. Perry L. Ehlig, May 17, 1992, to Mr. and Mrs. James Evans. 3. Letter from Mr. and Mrs. James B. Evans, September 7, 1992, to the City of Rolling Hills. As request, we have reviewed the above references relative to the subject properties. On the basis of information provided in the referenced engineering geology reports, the following is concluded and should be considered. 1. Movement continues in both the main and "Teardrop" portions of the Flying Triangle landslide complex and will continue to move and deteriorate with time under current conditions. Both subject properties at No. 2 Pinto and No. 62 Portuguese Bend Road are on the landslide, and are affected by, this movement. 2. The threat to thedwelling at No. 2 Pinto from deteriorationo of (ial the hazards from continued movement Teardrop slide mass remains (structure ordered removed September 1985, per Reference 3) and overrides consideration of any threat from the demolished dwelling concrete slab(s) upslope at 62 Portuguese Bend Road (Ref. 1 and 2). 3. Any attempt to "improve" current conditions at the properties, such as recommended in Reference 1 and 2, should be preceded by thorough geotechnical analysis and assessment with data from both an engineering geologist and a geotechnical Poat.tf" brand fax transrnittas memo 6?t crater - of paps an OCT 21 '92 07:18 300 S.FREMONT AVE. ALHAMBRA CA. P.2 Tom Remillard October 20, 1992 Page 2 engineer, particularly for recommended grading and especially relative to potential effects on adjacent properties, slide stability, and area access and drainage. If you have any further questions, please contact Dave Poppler at (818) 458-4925. DP:sm ME-3/me:cityofRH Ca, 0/R0//, JJ:fL INCORPORATED JANUARY 24, 1957 NO. 2 PORTUGUESE BEND ROAD ROLLING HILLS. CALIF. 90274 131 01 377-1 521 FAX (310) 377-7288 FAX COVER SHEET DATE: '1I(QIV'3 TIME SENT: 3,36, P_ - .TO: FROM: D\.0 -A --6,s0- s 0 a ,c, TELEPHONE: OPERATOR OUR FILE NO: YOUR FILE NO: SUBJECT: REMARKS: U TOTAL PAGES (including cover sheet): The City of Rolling Hills uses a Savinfax Model 300 telecopier as its primary telecopier. It is compatible with Group 1, 2 and 3 telecopy machines. If you have difficulty receiving any pages, please telephone our switchboard at (310) 377-1521 REPLY TO: City of Rolling Hills - Fax No. (310) 377-7288 ®Pn"ted on Recycled Paper. 0 OP 1, COL410TY OF LOS ANGEL• DEPARTMENT OF PUBLIC WORKS 900 SOUTH FREMONT AVENUE ALHAMBRA, CALIFORNIA 91803-1331 Telephone: (818) 458-5100 THOMAS A. TIDEMANSON, Director CECIL E. BUGH, Chief Deputy Director MAS NAGAMI, Assistant Director March 23, 1993 Ms. Lola Ungar, Principal Planner City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, CA. 90274 Dear Ms. Ungar: 62 PORTUGUESE BEND ROAD ROLLING HILLS, CA. ADDRESS ALL CORRESPONDENCE TO: P.O. BOX 1460 ALHAMBRA, CALIFORNIA 91802-1460 IN REPLY PLEASE REFER TO FILE: Digg2LIVIEM MAR 3 01993 CITY OF ROLLING Ma References: 1) Letter dated November 25, 1992 from the City of Rolling Hills to Mr. and Mrs. James Evans. 2) Letter dated October 22, 1992 from T.A. Tidemanson, Building Official, to Honorable City Council, City of Rolling Hills. 3) Letter Report, dated May 17, 1992 from Dr. Perry L. Ehlig, to Mr. and Mrs. James Evans. 4) Letter Report dated September 25, 1992 from Mr. Arthur G. Keene to City of Rolling Hills, responding to City's letter of September 16, 1992. In response to your phone request, on Monday March 16, 1993, we are pleased to provide recommendation to initiate work on the above subject property, as follows: 1. Our Geologist Mr. Dave Poppler had recommended to conduct a geotechnical evaluation prior to initiating any work. His recommendations are contained in his letter dated, October 22, 1992 copy of which is enclosed for your files. The comments and recommendations of Mr. Dave Poppler were developed during his review of the letter reports submitted by Dr. Perry L. Ehlig and Mr. Arthur G. Keene, references 3 and 4 above. 2. We concur with Mr. Dave Poppler's recommendation. Prior to undertaking any remedial measures, which will disturb the present soil condition, we recommend that a thorough veotechnical evaluation be made. This is particularly important on the account of the recent extensive rainfall. The issue of rainfall was also raised in Ms. Lola Ungar March 23, 1993 Page 2 item no. 6 in your letter dated September 16, 1992 to Mr. Arthur Keene. We further recommend that the technical data contained in the letters and references above, specifically Dr. Perry L. Ehlig's letter dated May 17, 1992, be considered in implementing any course of action. 3. The subject lot is located in an active landslide area of Flying Triangle, and as such it is in a continuously moving mode. Major topographical changes have occurred on this lot. As the result of these changes, access road to the slab and pool area has been severely damaged, making it almost impossible for mobilizing heavy equipment. The geotechnical evaluation also should include any recommendation or special measures that must be followed for mobilizing heavy equipment in this area. 4. As an immediate measure to abate the public nuisance, it is our recommendation that a substantially built six feet (6') high chain link fence be installed around swimming pool and foundation area to prevent unauthorized entry or access thereto. Proper precautions during the installation of chain link fence must be exercised. If we can be of further assistance, please contact the undersigned at (310) 534-3760. Very Truly Yours, T. A. TIDEMANSON Director of Public Works LATA THAKAR District Engineer, Lomita. cc: TR, EB, BH, OT. • GLENN R. WATSON ROBERT G. BEVERLY HARRY L. GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER ALLEN E. RENNETT STEVEN L DORSEY WILLIAM L STRAUSZ ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WILLIAM B. RUDELL DAVID L COHEN QUINN M. BARROW CAROL W. LYNCH COLEMAN J. WALSH. JR. JOHN A. BELCHER JEFFREY A. RABIN GREGORY M. KUNERT SCOTT WEIBLE THOMAS M. JIMBO MICHELE BEAL BAGNERIS AMANDA F. SUSSKIND ROBERT C. CECCON SAYRE WEAVER WILLIAM K KRAMER STEVEN H. KAUFMANN MARSHA JONES MOUTRIE GARY E. GANS WILLIAM E. MATSUMURA KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA LAURENCE S. WIENER DAVID P. WAITE CHRISTI HOGIN STEVEN R. ORR DEBORAH R. HAKMAN SCOTT K SHINTANI MICHAEL G. COLANTUONO JACK S. SHOLKOFF B. TILDEN KIM DARYL T. TESHIMA RUBIN D. WEINER SASKIA T. ASAMURA ADAM F. STREISAND TAYLOR L. FITZMAURICE DAVID M. FLEISHMAN KAYSER O. SUME STEVEN L HOLCOMB CRAIG A. STEELE ROBERT M. MAHLOWITZ KURTISS L GROSSMAN MICHELLE A. CURTIS DAWN R. ANDREWS RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A PROFESSIONAL CORPORATION July 27, 1993 Mr. Craig Nealis City Manager City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 Re: View Impairment Dear Craig, JUL 2 81993 CITY OF ROLLING HILLS RICHARD RICHARDS THIRTY-EIGHTH FLOOR 333 SOUTH HOPE STREET LOS ANGELES. CALIFORNIA 90071-1469 (213) 626-8484 TELECOPIER (213) 626-0078 OF COUNSEL RICHARD H. DINEL 0563922 OUR FILE NUMBER R6980-00001 Relative to the matter raised by Dr. Basque at the Council meeting last night, you may want to consider informing the realtor for the property being sold of the variance condition so that the realtor is under an obligation to inform all potential buyers of the obligation to trim the trees. This way, a buyer cannot later contend lack of notice. MJ:alr 0563922 GLENN R. WATSON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER ALLEN E. RENNET? STEVEN L DORSEY WILLIAM L STRAUSZ ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WIWAM B. RUDELL DAVID L COHEN QUINN M. BARROW CAROL W. LYNCH COLEMAN J. WALSH, JR. JOHN A. BELCHER JEFFREY A. RABIN GREGORY M. KUNERT SCOTT WEIBLE THOMAS M. JUMBO MICHELE BEAL BAGNERIS AMANDA F. SUSSKIND ROBERT C. CECCON SAYRE WEAVER WIWAM K. KRAMER STEVEN H. KAUFMANN MARSHA JONES MOUTRIE GARY E. GANS WILLIAM E. MATSUMURA KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA LAURENCE S. WIENER DAVID P. WAITE CHRIST HOGIN STEVEN R. ORR DEBORAH R. HAKMAN SCOTT K. SHINTANI MICHAEL G. COLANTUONO JACK S. SHOLKOFF B. TILDEN KIM DARYL T. TESHIMA RUBIN D. WEINER SASKIA T. ASAMURA ADAM F. STREISAND TAYLOR L FITZMAURICE. DAVID M. FLEISHMAN KAYSER O. SUME STEVEN L HOLCOMB CRAIG A STEELE ROBERT. M. MAHLOWITZ KURTSS L. GROSSMAN MICHELLE A. CURTIS DAWN R. ANDREWS 1 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A PROFESSIONAL CORPORATION July 26, 1993 glEgn D 'JUL 2 81993 ~^ CM/ OE RQUINGRiblikicS (1918-1988) 8y.. THIRTY-EIGHTH FLOOR 333 SOUTH HOPE STREET LOS ANGELES. CALIFORNIA 90071-1469 (213) 826.8484 TELECOPIER (213) 628.0078 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Mr. Craig Nealis City Manager City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 OF COUNSEL RICHARD H. DINEL 1091366 OUR FILE NUMBER R6980-00001 WRITER'S DIRECT DIAL NUMBER Re: Senate Bill 452 - (1) Amendment to California Solid Waste Reuse and Recycling Access. Act of 1991; (2) Forbearance of Civil Penalties for Failure to Implement the Source Reduction and Recycling Element and Household Hazardous Waste Element Dear Mr. Nealis: We write to inform you of Senate Bill 452, a budget trailer bill signed by the Governor and filed with the Secretary of State on June 30, 1993. The Bill makes two changes to solid waste laws that may affect the City. We have previously written to you about the requirements of the California Solid Waste Reuse and Recycling Access Act of 1991 (Public Resources Code §§ 42900, et seq., the "Act"). We informed you that the Act required the City to adopt an ordinance relating to adequate areas for collecting and loading recyclable materials in development projects. If the City does not adopt an ordinance by September 1, 1993, the model ordinance adopted by the California Integrated Waste Management Board ("Board") becomes effective in the City. Senate Bill 452 extends this deadline (Public Resources Code Section 42911) to September 1, 1994. Senate Bill 452 makes no other changes to the Act. RICHARDS, WATSON & GERSHON CONFIDENTIAL Mr. Craig Nealis July 26, 1993 Page 2 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Senate Bill 452 also provides, in an uncodified Section 13, as follows:_ "Sect. 13. Notwithstanding subdivision (a) of Section 41850 of the Public Resources Code, for a period of two years after July 1, 1993, the California Integrated Waste Management Board shall not impose any civil penalties for failure to implement a source reduction and recycling element or a household hazardous waste element." This section is less significant than it appears. Under Public Resources Code Section 41850, the Board has authority to impose administrative civil penalties of up to ten thousand dollars ($10,000) per day, but only after holding a public hearing, finding that the local agency has failed to implement the SRRE or HHWE, and issuing an order of compliance with a specific schedule for achieving compliance. Further, this process only occurs after the SRRE and HHWE has been adopted by the City and approved by the Board. We are informed that the Board has not yet begun to review adopted SRREs and HHWEs. Thus, it is not likely that Senate Bill 452 grants cities any additional period of time beyond that which is required for the Board to ultimately levy a fine pursuant to Section 41850. Please give me a call if you have any questions. Very tru y yours, Michael Estrada cc: Michael Jenkins ME:sdl 1091366 GLENN R. WATSON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER ALLEN E. RENNETT STEVEN L DORSEY WIWAM L STRAUSZ ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WILUAM B. RUDELL DAVID L COHEN QUINN M. BARROW CAROL W. LYNCH COLEMAN J. WALSH. JR. JOHN A BELCHER JEFFREYA RABIN GREGORY M. KUNERT SCOTT WEIBLE THOMAS M. JIMBO MICHELE BEAL BAGNERIS AMANDA F. SUSSKIND ROBERT C. CECCON SAYRE WEAVER WILLIAM K KRAMER STEVEN H. KAUFMANN MARSHA JONES MOUTRIE GARY E. GANS WILLIAM E. MATSUMURA KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA LAURENCE S. WIENER DAVID P. WAITE CHRISTI HOGIN STEVEN R. ORR DEBORAH R. HAKMAN SCOTT K SHINTANI MICHAEL G. COLANTUONO JACK 5. SHOLKOFF B. TILDEN KIM DARYL T. TESHIMA RUBIN D. WEINER SASKIA T. ASAMURA ADAM F. STREISAND TAYLOR L FITZMAURICE DAVID M. FLEISHMAN KAYSER O. SUME STEVEN L HOLCOMB CRAIG A. STEELE ROBERT M. MAHLOWITZ KURTISS L. GROSSMAN MICHELLE A. CURTIS DAWN R. ANDREWS RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A PROFESSIONAL CORPORATION July 29, 1993 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Ms. Lola Ungar Director of Planning City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 Re: Hazardous Waste and Substances Code Section 65962.5. Dear Ms. Ungar: Xg/EaWq JUL 3 0199 CITY I` ousHILLS (1916-1988) By 333 SOUTH HOPE STREET LOS ANGELES. CALIFORNIA 90071-1469 (213) 626-8484 TELECOPIER (213) 626-0078 OF COUNSEL RICHARD H. DINEL 1190428 OUR FILE NUMBER R6980-00001 Site List - Government. As you may know, the City's local CEQA Guidelines were recently amended to require project applicants to consult the so- called "Cortese" lists of hazardous wastes sites and to report if the project is proposed for such a site. I write to provide a copy of the portion of that list which includes sites in the City. The California Environmental Protection Agency has compiled a list of Hazardous Waste and Substances Sites for the entire State of California, pursuant to Government Code Section 65962.5. Local agencies have specific requirements under this statute when considering projects subject to the California Environmental Quality Act, Public Resources Code Section 21000 et seq. ("CEQA"). Certain state and local agencies are required to compile annual lists of sites on which hazardous wastes are known to exist and to provide this information to the state Secretary for Environmental Protection. Government Code § 65962.5. Under Section 65962.5(e) of the Government Code, the Secretary is required to provide these lists, the so-called "Cortese lists", to each city and county in which such a site is located. We RICHARDS, WATSON & GERSHON CONFIDENTIAL Ms. Lola Ungar, Dir. of Planning July 29, 1993 Page 2 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. understand that the Secretary has not provided copies of these lists to many local agencies. Therefore, we have obtained a copy of the list, and enclose the portion which includes the City. Section 65962.5(f) of the Government Code, in conjunction with Section 21092.6 of the Public Resources Code, imposes a number of duties on the City, and upon project applicants. First, the City must not deem an application complete until the applicant identifies any Cortese list on which the project site appears. The Initial Study form contained at Appendix B of your local CEQA Guidelines requires applicants to either identify any list on which the project site or any alternatives is located, or to certify that the site is not on any such list. Second, the City must independently consult the "Cortese" lists to confirm the information supplied by applicants. If a site is included on any list, and the list is not specified on the applicant's statement, then the City must notify the applicant pursuant to Section 65943 of the Government Code. The portion of the Initial Study form which is to be completed by the City includes a checklist in order to document the City's compliance with this statute. Finally, if a project site or alternative is on any "Cortese" list not already identified by the applicant, then the City must specify the list and include the information required by the statement set forth in Section 65962.5(f) of the Government Code. The City may do so by completing the Hazardous Waste and Substances Statement included in the Initial Study form in Appendix B to the local CEQA Guidelines, and affixing the statement to the Notice of Preparation of an EIR for the project, in any Negative Declaration prepared for the project, and in any draft EIR for the project. In addition, Public Resources Code Section 21084(c) provides that the City may not deem a project categorically exempt from CEQA if it is located on a site which appears on any of the "Cortese" lists, even if the project would otherwise qualify for a categorical exemption. If you have any questions about the Hazardous Waste and Substances Sites List, or the related requirements pursuant to RICHARDS, WATSON & GERSHON CONFIDENTIAL Ms. Lola Ungar, Dir. of Planning July 29, 1993 Page 3 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. CEQA, please do not hesitate to contact me or Michael Jenkins. Sincerely, Enclosure CC: Michael Jenkins, City Attorney SLH:slh 1190428 even L. Holcomb • CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY OFFICE OF ENVIRONMENTAL INFORMATION STATE OF CALIFORNIA HAZARDOUS WASTE AND SUBSTANCES SITES LIST JULY 1 992 California 1evironmental ProtA, ion Agency g y Air Resources Board • Department of Pesticide Regulation • Department of Toxic Substances Contra! • Integrated Waste Management Board Office of Environmental Health Hazard Assessment • State Water Resources Control Board • Regional Water Quality Control Boards Pete Wilson Governor To: Interested Parties James M. Strock Secretary for Environmental Protection Enclosed is a copy of the current Hazardous Waste and Substances Sites List which has been compiled by Cal/EPA, pursuant to Government Code Section 65962.5. Important points about the composition of the list are: o The sites for the list are designated by the State Water Resources Control Board, the Integrated Waste Management Board, and the Department of Toxic Substances Control. The criteria for this selection are listed on the enclosed summary of the government code. o In many instances, multiple listings are given for a site. This occurs when the site matches to other regulatory data bases according to a computer -based matching of street number, street name, and county. Those occurrences which have caused inclusion in the Sites List are designated by the name "SITES" in the right hand portion of the column. o Sites are sorted by city within county. Within each city, sites are sorted by street name and number, with the number following the name and bracketed by parentheses. o Multiple regulatory occurrences of a site are listed following the street name and number. Each such listing contains the facility name, data source name, and regulatory ID. Contacts for the data sources and their associated regulatory programs are enclosed, and the regulatory ID numbers can be used when contacting these programs for additional information. o For questions or comments, please contact Ms. Beckie Mora at (916) 445-6532. 555 Capitol Mali. Suite 235 • Sacramento. California 95f{l4 • (9161445-3846 • Fay; 1916) 445-61t1I 0. Printed on recycled paper LOS ANG111, COUNTY IX N. EPPEL ENTERPISES TRW INCORPORATED TRW T R W INC TORRANCE BLVD (300) EXXON RAS 07-3620 NWIS REDONDO BEACH EXXON NWIS EXXON S.S. •7-3630 LTANK 1201 CATALINA AVE., N. (NO STREET NSRI USPS MAIN POST OFFICE LTANK 1630 ELENA ST., S. (NO STREET NSRI CHEVRON S.S. LTANK 181 HARBOR DR., N. (NO STREET NSRI REDONDO BEACH MARINA LTANK 2714 ARTESIA BLVD., E. (NO STREET NBA) EXXON S.S. •7-2311 • LTANK IMPACT CITY: RESEDA NWIS CAX000022111 FINDS CA0008224648 LTANK SITES ASPIS 197]0183 NO ZIP CA1000002303 CAL0000 I225I BAIRO AVE (8015) LA RESEDA ST MAINT YARD NWIS CAD$$1118801 LA RESEDA ST MAIM? YARD FINDS CA08819118'01 L.A. CITY DEPT. PU/LIC WORKS LTAMK GAULT ST 118333) PACIFIC SELL NWIS CA01801161218 PACIFIC TELE 8 TELE CO RESEDA FINDS CA0180881211 PACIFIC SILL LTANK RESEDA (6240) SHELL STATION NO 204.6420-0801 NWIS CA0181405331 SHELL S.S. LTANK RESEDA BLVD (67561 EXXON STATION • LTANK RESEDA BLVD 16781) SMELL OIL •204-8420-0300 HWIS CAX0001400S3 IX SHELL OIL STATION 204642003 MWIS 0A0000513334 SHELL STATION • LTAMK RESEDA BLVD 16801) ARCO S. S. •$041 LTANK RESEDA BLVD (88271 PACIFIC TELEPHONE AND TEIEORAP HWIS CA0001227745 PACIFIC TELEPHONE AND TELEGRA► FINDS CA0001227741 PACIFIC BELL LTANK RESEDA BLVD (7208) MO/II. S.S. •11 -IPM LTANK RESEDA (8000) EXXON RAS •7-]877 NWIS CAL0000D2772 IX EXXON STORE •3317 NWIS CAC00002/562 IX EXXON STATION 7-2177 NWIS CA0181414048 EXXON STATION •7-3877 RESEDA 1130 (Blob) CIRCLE K STATION •7343 LTANK SATICOY (15304) IX MOBIL OIL 11-FMW NWIS CAC00004EITS 12 MOBIL OIL STN. #14140 MWIS CAX000142281 IX MOBIL OIL CO STAR 11FMW NWIS CAC000I10224 IX MOBIL OIL •I1PMW MW15 CAC000S8377S MOBIL STATION •11-FMW(14-140) LTANK SATICOY ST (11310) IX CONSTRUCTION DEVELOPMENT SY HWIS' CAC000054$73 SATICOY LIMITED LTANK SHERMAN WAY 111341) IX VALLEY INDEPENDENT SENT ICE NWIS CA01814121110 DON THIS LTANK SHERMAN WAY (1/8041 IX CADY, ELSIE NWIS CAC000$23250 IX ELSIE CADY NWIS CAC000$243/8 IK ELSIE KADY HWIS CAC0006BI851 DEALS ON WHEELS LTAMK SHERMAN WAY I1861S) IX WASH HWIS CAC000221113 DICK BURNS AUTOMOTIVE HWIS CA0181882331 DICK BURNS AUTOMOTIVE FINDS CA01818/2]31 WASH LTAMK SNERMAN WAY (112711 UNOCAL SYC STA 03612 Mw15 CA0981644768 UNOCAL STATION •3612 LTANK SHERMAN WAY (11301) IX SMELL OIL. •204-$420-0201 NWIS CAC000804560 IX SHELL OIL CO 5T37204-6420-0 MWIS CACO0o15/176 SHELL STATION I LTANK SHERMAN WAY 111860) EARLS MOBIL NWIS CA06823111180 IX MOBIL OIL •11 -PSI MWIS CAC000103184 MOBIL STATION •11-F36 LTAMK TAMPA AVE (7114) MR AUTO HWIS CAD8820EO7$7 SILL AND PAULS AUTOMOTIVE mW/S CAD/8201071/ II LEE BROWN NWIS CA11000233743 PRECISION AUTO BODY KWIS CAL000037101 PRECISION AUTO. LTANK VANOWEN ST (11111) FORMER TEXACO S.S. LTANK VICTORY (112481 IX MOBIL OIL •tILIF HANTS CAC00007I717 IX MOBIL OIL CORP STA011-LBF HWIS CAC0000f0603 II MOBIL OIL COR►ORATION•II-LB HWIS CAC0001OSS$2 fX MOBIL OIL COMPANY HWIS CAC000577384 MOBIL S.S. 11-Lf1F LTANK 11146 MAR/ ST. (NO STREET MINI MICHAELSON CONSTRUCTION INC. LTANK IMPACT CITY: ROLLING HILLS SILVER SPUR (8281 PENINSULA ARCO SVC ARCO PRODUCTS CO FAC 8047 ARCO GAS STATION PENINSULA ARCO SYC ARCO FAC •8087 38 CREST RD., W. (NO STREET NBR1 PALOS VERDES SCHOOL GIST. HWIS CA0181878147 MWlf CAL00001634I UTANK 12063 FINDS CA0I81878147 LTANK LTANK IMPACT CITY: ROLLING HILLS ESTATE CRENSHAW BLVD (263011 LOS ANGELES CTY PALOS VERDES L MwtS CAT000824320 SITES 10277 SITES $0234' SITES $0277 SITES 90278 SITES 91335 SITES 11332 SITES 5133$ SITES 11331 SITES 11331 SITES 11331 SITES 1133$ SITES 11333 SITES NO ZIP SITES 11333 SITES 10017 SITES 11212 SITES 11340 SITES 11331 SITES 11335 SITES 11331 SITES /133$ SITES 11]11 SITES 51331 SITES 1133$ SITES 11105 SITES 11335 SITES 90274 SITES 90274 SITES 10274 LOS ANGELES CO PALOS VERDES LC FINDS CAT000/24320 PALOS TEASES LANDFILL ASPIS 1/410111 END OF CUMMINGS ROAD OFF OF OL (NO STREET NBA) PALOS VERDES LANDFILL W/-LF II -AE -0001 SILVER SPUR RD 1601) GLENDALE FEDERAL PROPERTY LTANK 27]01 HAWTHORNE 11.10., S. (NO STREET NSA) ARCO STATION 0300E LTANK IMPACT CITY: ROSEMEAD DEL MAR AVE (33021 THRIFTY STATION 0012 LTAMK RIVER AVENUE M (2713) RUSSELL TRANSPORTATION INC. LTANK ROSEMEAD BLVD N. (38031 ECONO LUSE M TUNE NWIS CA0181168747 TEXACO S.S. LTANK ROSEMEAD BLVD N 14441) TEXACO OIL CORP UTANK 5784 TEXACO STATION • LTANK ROSEMEAD SLIM N (81101 CHEVRON USA SS • 01747 UTANK 5780 CHEVRON STATION • LTANK SAN GA1R)IL BLVD (33661 ARCO PRODUCTS CO PAC 5212 HWIS CA/00003219S ARCO UTANK 10327 ARCO S.S. •5212 LTANK $TINGLE AVE (2641) IRISH COMMUNICATIONS LTANK VALLEY SLY E. (111$) SERVICES STATION -AUTO REPAIR MwIS CAL000071077 UNOCAL CORP SS 1431 UTANK 2511 UNOCAL STATION • WALNUT GROVE AVE (22441 SOUTHERN CALIFORNIA EDISON HWIS CA00061048I1 SCE GENERAL OFFICE NO 1 UTANK 374 SO CALIF EDISON ROSEMEAD FINDS CA000IIO$lI8 SOUTHERN CALIFORNIA EDISON CO. LTANK 3363 DEL MAR AVE., N. (NO STREET MORI JOE DOMES -UNION 76 LTANK 3808 ROSEMEAD 11170..11. (NO STREET MAR) TEXACO SERVICE STATION LTANK 1204 GARYEY ILYO., E. INS STREET NSR) ARCO S.S. •1283 LTAMK 6801 GARYEY AVE.. 1. (NO STREET NSA) STOP -N -GO S.S. •01-0781 LTANK $614 VALLEY sou LEVARO, E. (NO STREET AEA) RELIABLE LUMBER INC LTANK 2113 LOWER AZUSA ID., E. (NO STREET NSA) CALTRANS ROSEMEAD MAINT STA. LTAMK 186• VALLEY BLVD, E. (NO STREET N111 UNOCAL S.S. LTANK SITES NO SITE 1027 SITES 10274 SITES $1770 SITES 11770 SITES 91770 SITES $1770 SITES 11770 SITES NO ZIP SITES 51770 SITES $1770 SITES 9177o SITES 11770 SITES 11770 SITES $1770 SITES 11770 SITES 11770 SITES 11770 SITES 11770 SITES IMPACT CITY: ROWLAND HEIGHTS • BATSON AVE (2037) 11746 ROWLAND UNIFIED SCHOOL DISTRIC UTANK 3342 ROWLAND UNIFIED SCHOOL DIST LTANK SITES COLIMA AO 1182831 11748 LEE'S AUTO CENTER HWIS CAL000004084 LEES AUTO CTR NWIS CAL000006BI2 1X MOBIL OIL STATION •1112► " Mw15 CAC00014424I 15 MOBIL OIL STA •11-I2► HWIS CA0000211829 II MOBIL 011 CO STAN 11-1211 HWIS CAC000270833 IX MOST/ OIL COMPANY •11-E2P HWIS CAC000608080 IX MOBIL OIL STATION •11-E2P mwiS CAC000S84178 LEE'S M011L AUTO CENTER Mwi6 CAL000071781 MOBIL OIL CORP SS 11E2► UTANK 1104 MOBIL STATION •11.12► LTAMK SITES COLIMA ND (11313) 91746 IX E-2 SERVE OF CA Nw1S CAC0000877$$ IX KOREAN VILLAGE CALIFS LIMTD Nwi1 CAC000823344 TEXACO STATION • SITES COLIMA RD 1181111 NO ZIP ARCO PRODUCTS FACILITY 3004 Mw15 CAL000018631 ARCO PETROLEUM ►R00 CO • 3004 UTANK Soul 'ARCO S.S. •3004 SITES COLIMA ROAD I (11210) 9174$ TEXACO SERVICE STATION LTANK SITES COLIMA ROAD E 1118111 91748 MOBIL STATION • LTANK SITES COLIMA ROAD E 1110061 11748 EXXON STATION •7-ISO3 SITES NOGALES (10211 11748 II MOBILE OIL CO. NWIS CAC0002$2121 IX MOBIL 01L COMP/11-120 HWIS CAC000071$4f MOBIL S.S. SITES NOGALES (1709) - 11741 IX SNELL OIL CO MINIS CAC00084433$ SHELL STATION • LTANK SITES WALNUT DR 111382) 1174A IX 'S NURSERY Mwit CAC000152445 IX COLOR SPORT, INC. MWIS CAC0001 COLOR SPOT UTANK 113111 COLOR SPOT INC. LTAMK SITES 1830$ COLIMA RD., E. (MO STREET NBR1 11744 EXXON S.S. •74144 LTANK SITES 14461 COLIMA RO., E. (MO STREET NBA) 11746 THRIFTY OIL STATION •306 SITES 11606 COLIMA RO.. E. (NO STREET N1R1 11741 SHELL STATION •204-8431-0331 LTANK SITES 18886 COLIMA RD., E. (NO STREET NSR) 11741 SHELL S.S. LTAMK SITES IMPACT CITY: S PASADENA FAIR OAKS 14801 11030 IX CHEVRON U S A •11114 MWIS CAC000134344 CHEVRON S.S. •8.3314 LTANK SITES IMPACT CITY: SAN DIMAS BONITA AVE W (8301 $1773 SMELL SEAT STA UTANK 1121 SMELL STATION LTANK SITES PAGE 108 ONFIDENTIAL RICHARDS, WATSON & GERSHON MEMORANDUM ECU DEC - 9 1991 CITY OF ROLLING HILLS To: Lola Unger, Principal 1?lanner, City of Rolling Hills FROM: Steven H. Kaufmann DATE: December 6, 1991 SUBJECT: Colyear v. Rolling Hills: Responses to Interrogatories and. Request for Production of Documents As -we discussed, Colyear has served on the City interrogatories and a request for production of documents. Our response was to be due on December 27, 1991, but I have received an extension of time to January 10, 1992.to complete our responses.' The extension should be of help to us both. In general, the interrogatories force us to back up the allegations of the City's answer and cross -complaint in the litigation with all of the facts we wish to rely upon at trial in proving up our case. I am sending to you copies of (1) the City's answer and cross -complaint in the litigation, (2) the First Set of Interrogatories, First Demand for Production, Etc., of Documents, and Form Interrogatories served on the City, and (3) an index prepared by my secretary of the documents provided to me already by the City. As a start, please read through the interrogatories and document reuest As to. the form inte ries, you should note that only one box is checked off (no. 15), but it essentially asks that we go through all of the allegations of the answer and p_r-,oxide acts- ocuments1i der1t .t„y, of persons Give me a caand we can go through each item and see how the City can assist in preparing our response. Thanks again for your assistance. cc: Craig Nealis, City Manager Michael Jenkins Kevin Ennis SHK:shk 1120136 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 / 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW RICHARDS, WATSON & GERSHON A Professional Corporation 333 South Hope Street, 38th Floor Los Angeles, California 90071-1469 (213) 626-8484 Attorneys for Respondents and Defendants CITY OF ROLLING HILLS and ROLLING HILLS CITY COUNCIL SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES RICHARD C. COLYEAR, an individual, Petitioner vs. and Plaintiff, CITY OF ROLLING HILLS, etc., et al., Respondents and Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. YC005965 ANSWER TO PETITION AND COMPLAINT Respondents and Defendants City of Rolling Hills and Rolling Hills City Council (collectively "the City") hereby answer the petition and complaint ("complaint") on file herein and admit, deny and allege as follows. 1. Answering the unnumbered introduction to the complaint, the City denies each and every allegation thereof. 2. Answering paragraph 1, the. City admits that petitioner is an individual and that petitioner owns the property commonly known as 35 Crest Road West, Rolling Hills, Los Angeles County, California. The City lacks information and belief sufficient to admit or deny the allegations contained in the second sentence of 0790638 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW paragraph 1, appearing at lines 8 through 10 of page 3 of the complaint, and denies each and every such allegation on that basis. Except as so admitted and denied based upon a lack of information and belief, the City denies each and every allegation of paragraph 1. 3. Answering paragraph 2, the City admits the allegations of said paragraph. 4. Answering paragraph 3, the City admits the allegations of said paragraph. 5. Answering paragraph 4, the City lacks information or belief sufficient to admit or deny the allegations of said paragraph and denies each and every such allegation on that basis. 6. Answering paragraph 5, the City lacks information or belief sufficient to admit or deny the allegations of said paragraph and denies each and every such allegation on that basis. 7. Answering paragraph 6, the City admits the allegations of said paragraph. 8. Answering paragraph 7, the City admits the allegations of said paragraph. 9. Answering paragraph 8, the City admits the allegations of said paragraph. 10. Answering paragraph 9, the City denies that the Planning Commission "failed" to either grant or deny petitioner's request for a lot line adjustment on February 20, 1990. The City avers that the Planning Commission continued the matter on that date to afford petitioner the opportunity to provide additional information required by the Planning Commission. Except as so 910906 lr 1 - 2 0790638 • • 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW denied and averred, the City admits the allegations of contained in paragraph 9. 11. Answering paragraph 10, the City denies the allegations contained in said paragraph. The City avers that the Planning Commission did not fail to grant or deny the lot line adjustment, it continued the matter. See paragraph 9 of this answer. The City further avers that no administrative appeal lies from a Planning Commission order continuing a hearing. 12. Answering paragraph 11, the City admits that the Planning Commission denied petitioner's request for a lot line adjustment in Zoning Case No. 414. The City denies that the Planning Commission denied said request on March 20, 1990. The City avers that the Planning Commission adopted Resolution 635 denying petitioner's application on April 7, 1990. See Exhibit "C" to petition. 13. Answering paragraph 12, the City admits the allegations of said paragraph. 14. Answering paragraph 13, the City admits that a true and correct copy of Resolution No. 635 is attached to the complaint as Exhibit "C". The City denies that the City Council adopted Resolution No. 635 on February 13, 1990. The City avers that said resolution was, in fact, adopted on February 13, 1991. See Exhibit "C" to complaint. Except as so admitted, denied and averred, the City denies each and every allegation of Paragraph 13 and avers that Resolution No. 635 speaks for itself. 15. Answering paragraph 14, the City denies each and every allegation of said paragraph and avers that Resolution No. 635 speaks for itself. 910906 tr 1 - 3 0790638 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 16. Answering paragraph 15, the City denies each and every allegation of said paragraph. 17. Answering paragraph 16, the City denies each and every allegation of said paragraph. 18. Answering paragraph 17, the City admits that petitioner makes the allegations specified therein; but the City denies each and every one of those allegations. 19. Answering paragraph 18, the City denies each and every allegation of said paragraph. 20. Answering paragraph 19, the City denies that the City Council made its decision on February 13, 1990. Except as so denied, the City admits the allegations of paragraph 19. 21. Answering paragraph 20, the City denies each and every allegation of said paragraph. 22. Answering paragraph 21, the City hereby incorporates its responses to the paragraphs of the complaint referenced therein. 23. Answering paragraph 22, the City denies that it conditioned approval of petitioner's lot line adjustment upon the grant of an easement. The City avers that it conditioned the adjustment upon the recordation of an easement. Except as so denied and averred, the City admits the allegations of paragraph 22. 24. Answering paragraph 23, the City denies that a judicial 24 declaration is necessary to resolve the issues raised by the 25 complaint. The City avers that petitioner's remedy is mandate and 26 not declaratory relief. See Ninth Affirmative Defense, infra. 27 25. Answering paragraph 24, the City hereby incorporates its 28 responses to the paragraphs of the complaint referenced therein. RICHARDS. WATSON & GERSHON ATTORNEYS AT LAW 910906 lr 1 - 4 - 0790638 i 1 26. Answering paragraph 25, the City denies each and every 2 allegation of said paragraph. 3 27. Answering paragraph 26, the City denies each and every 4 allegation of said paragraph. 5 28. Answering paragraph 27, the City denies each and every 6 allegation of said paragraph. 7 29. Answering paragraph 28, the City hereby incorporates its 8 responses to the paragraphs of the complaint referenced therein. 9 30. Answering paragraph 29, the City admits the allegations 10 of said paragraph. 11 31. Answering paragraph 30, the City denies each and every 12 allegation of said paragraph. 13 32. Answering paragraph 31, the City denies each and every 14 allegation of said paragraph. 15 33. Answering paragraph 32, the City denies each and every 16 allegation of said paragraph. 17 34. Answering paragraph 33, the City hereby incorporates its 18 responses to the paragraphs of the complaint referenced therein. 19 35. Answering paragraph 34, the City admits that it is a 20 public entity. Except as so admitted, the City denies each and 21 every allegation of paragraph 34. The City avers that the 22 requirement that petitioner dedicate an easement for several 23 purposes was imposed upon petitioner in 1970 as a condition of 24 subdivision and that the easement in controversy accordingly 25 appears upon the final subdivision map, which bears petitioner's 26 signature. 27 36. Answering paragraph 35, the City denies each and every 28 allegation of said paragraph. RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW 910906 lr 1 - 5 - 0790638 • . 1 37. Answering paragraph 36, the City denies each and every 2 allegation of said paragraph. 3 AFFIRMATIVE DEFENSES 4 FIRST AFFIRMATIVE DEFENSE 5 (To all causes of action: failure to state a cause of 6 action) 7 38. The petition and complaint, and each of its causes of 8 action, fail to state a cause of action. 9 SECOND AFFIRMATIVE DEFENSE 10 (To all causes of action: City's authority to correct 11 violation of subdivision map) 12 39. In 1970, petitioner requested the City's approval to 13 subdivide 35 Crest Road West, the subject property ("the 14 Property"). 15 40. The City granted approval, conditioned upon petitioner's 16 dedicating and recording certain easements depicted upon 17 petitioner's final map ("the Original Easements"). The City 18 revised the Original Easements to conform to petitioner's lot line 19 adjustment. As revised, the easements ("the Revised Easements") 20 are described in Section 8.A. of Resolution 635. See Exhibit "C" 21 to petition and complaint. 22 41. Petitioner purported to subdivide the Property, but he 23 failed and refused to record the Original Easements and thereby 24 satisfy the condition of subdivision requiring such dedication and 25 recordation ("the Condition"). 26 42. Thus, Resolution No. 635 does not impose any new 27 conditions upon petitioner. Instead, it merely requires 28 petitioner, as a condition of obtaining an adjustment of his lot 1:1 !CHARDS, WATSON & GERSHON ATTORNEYS AT LAW 910906 Ix 1 - 6 - 0790638 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW lines, to correct his prior legal violation. The imposition of this requirement is authorized by law, including Government Code Sections 66412(d) and 66499.34. THIRD AFFIRMATIVE DEFENSE (To all causes of action: estoppel to deny condition of subdivision requiring recordation of easements) 43. The City hereby incorporates the allegations of paragraphs 38, 39 and 40 of this answer into this affirmative defense and all subsequent affirmative defenses pleaded in this answer. 44. Petitioner failed to challenge the Condition. Instead, he accepted it by signing the final map which shows the Original Easements. 45. Petitioner has accepted the benefits of subdividing his property. He is thereby estopped to deny his obligation to record the subject easements. FOURTH AFFIRMATIVE DEFENSE (To all causes of action: waiver of right to challenge condition of subdivision) 46. By failing to timely challenge the Condition and by signing the subdivision map showing the Original Easements, petitioner has waived his right to challenge either the existence the subject easements or his obligation to record them. FIFTH AFFIRMATIVE DEFENSE (To all causes of action: equitable estoppel) 47. In conjunction with the subdivision of the Property, petitioner falsely promised to the City that he would dedicate and 910906 lr 1 - 7 - 0790638 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW record the Original Easements. At the time he made said promise, petitioner knew that it was false. 48. Petitioner made said promise with the intent to induce the City to approve his subdivision map and knowing that the City would, in reliance upon said promise, approve said map. 49. The City accepted as true petitioner's false promise and, in reliance upon it, permitted petitioner to subdivide the Property. 50. As a matter of equity, petitioner's own conduct estops him from denying the existence of the subject easements and his obligation to record them. SIXTH AFFIRMATIVE DEFENSE (To All Causes of Action: Failure to Exhaust Administrative Remedies) 51. Petitioner failed to exhaust his administrative remedies before seeking judicial recourse. Petitioner failed to attend the hearing on his request for a lot line adjustment and to protest the conditions imposed on approval of the lot line adjustment. 52. Petitioner's failure to exhaust administrative remedies bars relief on all causes of action of the complaint. SEVENTH AFFIRMATIVE DEFENSE (To All Causes of Action: Waiver based upon failure to utilize administrative remedy) 54. Petitioner's failure to attend the administrative hearing and utilize that forum provided by the City constitutes a waiver of any right to protest the City's right to require recordation of the Revised Easement as a condition of the lot line adjustment. 910906 lr 1 - 8 - 0790638 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW EIGHTH AFFIRMATIVE DEFENSE (To All Causes of Action: Estoppel based upon failure to protest condition at administrative hearing) 55. Petitioner's failure to attend the administrative hearing and to protest, at the hearing, the imposition of the Condition estops petitioner fromprotesting that condition in this forum. NINTH AFFIRMATIVE DEFENSE (Second and Third Causes of Action: Adequacy of remedy at law) 56. Petitioner's Second Cause of Action for declaratory relief and his Third Cause of Action for injunctive relief do not lie because mandate affords an adequate remedy at law. TENTH AFFIRMATIVE DEFENSE (Second Cause of Action: Declaratory relief not available) 57. Petitioner's Second Cause of Action for declaratory relief fails to state a cause of action because declaratory relief is not available to review an administrative decision. ELEVENTH AFFIRMATIVE DEFENSE (All Causes of Action: Unclean Hands) 58. Petitioner's claims for relief are barred by his own unclean hands because, among other things, petitioner failed to fulfill the Condition but took the benefits of subdivision. TWELFTH AFFIRMATIVE DEFENSE (Fourth Cause of Action: No invidious discrimination) 59. In requiring petitioner to comply with the Condition, the City has not acted with improper purpose. Instead, it has 910906 tr 1 - 9 - 0790638 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS. WATSON & GERSHON ATTORNEYS AT LAW acted to promote the general health, safety and welfare by securing petitioner's compliance with the legal requirements attendant upon his subdivision of the Property and ensuring the provision of adequate sewer services to petitioners' property and other property. THIRTEENTH AFFIRMATIVE DEFENSE (Fourth Cause of Action: Lack of disparate treatment) 60. In requiring petitioner to comply with the Condition, the City has not singled petitioner out for disparate treatment. The City requires all persons subdividing land to comply with subdivision conditions. FOURTEENTH AFFIRMATIVE DEFENSE (Fifth Cause of Action: Legitimate state interest) 61. In requiring petitioner to record the Revised Easements, the City acted to protect the public health, safety and welfare for the specific, legitimate purposes of obtaining compliance with the conditions attendant upon petitioner's subdivision of the Property and ensuring provision of adequate sewer services to petitioner's property and other property. FIFTEENTH AFFIRMATIVE DEFENSE (Fifth Cause of Action: No denial or reasonable use) 62. The requirement that petitioner record the Revised Easements does not deprive petitioner of reasonable use of his property because, among other things, the subject easements are subsurface and lie along the property line in the setback and permit the installation of shallow -rooted landscaping and necessary irrigation systems. Thus, recordation of the Revised Easements will not affect petitioner's use his property. 910906 Lr 1 - 10 - 0790638 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 SIXTEENTH AFFIRMATIVE DEFENSE (All Causes of Action: Statute of Limitations) 63. Petitioner's causes of action, and each of them, are, in effect, a belated attempt to challenge the Condition. The limitation period imposed by Government Code Section 66499.37 bars that attack. SEVENTEENTH AFFIRMATIVE DEFENSE (All Causes of Action: Res Judicata) 64. Petitioner's causes of action, and each of them, are barred by the doctrine of Res Judicata. Petitioner's failure to timely challenge the imposition of the Condition renders the Condition res judicata and immune from collateral attack. EIGHTEENTH AFFIRMATIVE DEFENSE (All Causes of Action: Frivolous nature of claims) 65. Petitioner's causes of action, and each of them, are 16 frivolous and wholly without legal merit, thus entitling the City 17 to reasonable attorneys' fees as provided by law. 18 PRAYER 19 WHEREFORE, the City prays that the court: 20 1. Deny the petition; 21 2. Dismiss the petition and complaint; 22 3. Enter judgment for the City; 23 4. Award to the City its reasonable attorney's fees and 24 reasonable costs of suit; and 25 /// 26 /// 27 /// 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW 910906 lr 1 - 11 - 0790638 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW 5. Grant to the City such further relief as it may deem just and appropriate. DATED: September 6, 1991 910906 tr 1 RICHARDS, WATSON & GERSHON A Professional Corporation MICHAEL JENKINS City Attorney ,.-.._.,MARSHA JONES MOUTRIE STEVEN KAUFMANN By: Marsha Joins Moutrie Attorneys for Respondents and Defendants CITY OF ROLLING HILLS and ROLLING HILLS CITY COUNCIL - 12 - 0790638 PROOF OF SERVICE (1013A CCP) STATE OF CALIFORNIA ss. COUNTY OF LOS ANGELES I am a resident of the aforesaid county, I am over the age of eighteen years and not a party to the within action; my business address is 333 South Hope Street, 38th Floor, Los Angeles, California 90071-1469. On September 6, 1991, I served the within ANSWER TO PETITION AND COMPLAINT on the interested parties in this action, by placing a true copy thereof enclosed in sealed envelopes addressed as follows: SHEPPARD, MULLIN, RICHTER & HAMPTON Frank Simpson, III Richard L. Stone Kristina M. Diaz 333 So.. Hope Street, 48th Floor Los Angeles, California 90071 %_ (BY MAIL) The envelope was mailed with postage thereon fully prepaid. I am "readily" familiar with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing an affidavit. Executed on September 6, 1991, at Los Angeles, California. X (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Myra Rios Type or print name Q Signature 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS. WATSON & GERSHON ATTORNEYS AT LAW RICHARDS, WATSON & GERSHON A Professional Corporation 333 South Hope Street, 38th Floor Los Angeles, California 90071-1469 (213) 626-8484 Attorneys for Defendant and Cross -complainant CITY OF ROLLING HILLS SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES RICHARD C. COLYEAR, an individual, ) Case No. YC005965 ) Petitioner and Plaintiff, ) ) vs. ) ) CITY OF ROLLING HILLS, etc., et ) Respondent and Defendant. ) ) CITY OF ROLLING HILLS, a ) municipal corporation, ) ) Cross -complainant, ) ) vs. ) ) RICHARD C. COLYEAR, an individual, ) ROLLING HILLS COMMUNITY ) ASSOCIATION OF RANCHO PALOS ) VERDES, a non-profit California ) corporation, and DOES 1 through ) 25, inclusive, ) ) Cross -Defendants. ) ) CROSS -COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Cross -complainant, City of Rolling Hills, hereby cross - complains against Cross -defendants Richard C. Colyear and Rolling Hills Community Association of Rancho Palos Verdes and alleges as follows: 1120005 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW GENERAL ALLEGATIONS 1. Cross -complainant City of Rolling Hills (the "City") is and, at all times relevant hereto, was a municipal corporation organized under the laws of the State of California. 2. Cross -complainant Richard C. Colyear is an individual and, at all times relevant hereto, was a California resident and legal owner and possessor of a parcel of real property in the vicinity of Chestnut Lane, in the City of Rolling Hills, (Lot 241 -A -1 -MS or "Parcel No. 1") and an adjacent parcel of real property located at 35 Crest Road West, in the City of Rolling Hills (Lot 241 -A -2 -MS or "Parcel No. 2"). Both parcels (collectively, the "Property") are located in the County of Los Angeles, California. Cross -complainant is informed and believes, and thereon alleges, that the legal description of both properties is as described in Exhibit "1," attached hereto and incorporated by reference as though set forth in full. 3. Cross -defendant Rolling Hills Community Association of Rancho Palos Verdes ("Association") is, and at all times relevant hereto, was a non-profit California corporation doing business in the City of Rolling Hills, County of Los Angeles. Cross -defendant Association is named because the City is informed and believes, and thereon alleges, that the Association has or claims an interest in certain portions of the Original Easements, as more fully described below, which the City required as a condition of approving the subdivision of the Property in 1971. 4. The City does not know the names or capacities of Cross -defendants named herein as Does 1 through 25 and will amend this cross -complaint when the same have been ascertained. 910906 shk 0 - 2 1120005 • • 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW 5. In or about 1970, Cross -defendant Colyear filed an application with the City for a Tract Map, No. 29408, to subdivide the Property into two lots, a 2 -acre parcel (Parcel No. 1) and a 5.35 -acre parcel (Parcel No. 2). 6. On or about October 25, 1970, pursuant to the Subdivision Map Act (Govt. Code, § 66410, et seq.) and the City Municipal Code, the City Council of Rolling Hills ("City Council") approved the Tract Map, but subject to terms and conditions requiring, among other things, 10 foot easements along specified lot lines of the to -be -created parcels for bridle trails, roads, and public utilities to be reserved in documents subsequent to recordation of the subdivision map (the "Original Easements"). Cross -defendant Colyear neither objected to nor sought judicial review of the Original Easements imposed. 7. Thereafter, Cross -defendant Colyear's engineer prepared a subdivision map for the Tract, to which said Cross - defendant formally consented, expressly noting the Original Easements and their location in relation to Parcels Nos. 1 and 2. 8. On or about June 14, 1971, the City Council approved the final subdivision map for Tract No. 29403, authorizing the subdivision of the Property into Parcels Nos. 1 and 2. 9. the final subdivision map was recorded at the request of Cross -defendant Colyear. However, while full ,.accepting the benefits of the subdv-so Approved, said Cross -defendant did not recor an n fact has never -•�,,e,,.� "'� b SL's. =�`' recorded, the Original Easements imposed. 10. On or about February, 1989, Cross -defendant Colyear applied to the City for a lot line adjustment to move the lot line 910906 shk 0 - 3 - 1120005 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW which separates the two lots so that 35/100ths of an acre o Parcel No. 2 would be placed into Parcel No. 1, the smaller, yet undeveloped lot. 11. On or about May 16, 1989, the Planning Commission of the City of Rolling Hills ("Planning Commission') denied the application based upon the existence of an illegal guest house a iAi ... with kitchen facilities on Parcel No. 2, in violation of the City's Zoning Code. The City Council received the report of denial on or about June 12, 1989. 12. Cross -Defendant Colyear the removed the illegal structure aid requested a rehearing on the application. On or about April 7, 1990, after conducting duly noticed public hearings on the application and a field site review of the Property, the Planning Commission denied the application. 13. On or about April 16, 1990, Cross -defendant Colyear appealed the decision of the Planning Commission to the City Council. On or about May 29, 1990, the City Council opened and continued the public hearing on the application in order to obtain further information from said Cross -defendant. 14. On or aboutFebruary 13, 199 , after receiving the information requested, the City Council approved the lot line adjustment, but only upon the condition that, in permitting an adjustment of the original lot lines approved, Cross -defendant Colyear correct his failure to record the OriginalEasement imposed. Specifically, the condition imposed facilitates relocation of certain of the original easements imposed, and requires said Cross -defendant to record an easement in gross for the installation, maintenance, repair, replacement and removal of 910906 shk 0 - 4 - 1120005 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT UW sewer lines and other underground utilities over (1) the westerly 1 feet of Parcel No . 2 , (2) 10 feet- on eiti i`de" of them,..; boundary line between Parcels Nos. 1 and 2, and (3) the easterly 10 feet of Parcel No. 1 (the "Revised Easements"). The Revised Easements, located along essentially along the lot lines of Parcel No. 1, expressly permit the installation_of,shallow rooted landscaping and necessary irrigation systems, but prohibit the construction or erection of any improvements or alteration of the contours of the surface of the easement area. tom, 15. To date, Cross -defendant Colyear has not recorded either the Original Easements required in connection with his original subdivision approval or the Revised Easements imposed in connection with approval of the adjustment of lot lines, and City is informed and believes, and thereon alleges, that said Cross - defendant has refused and continues to refuse to do so. As a consequence, Cross -defendant Colyear has violated, and continues to violate, the terms and conditions of his original subdivision approval and tract map. That violation, moreover, has been and continues to be flagrant, knowing and willful. FIRST CAUSE OF ACTION (Failure to Fulfill Terms and Conditions of 1971 Subdivision Approval) 16. The allegations of paragraphs 1 through 15, inclusive, are incorporated into this cause of action by reference as though set forth in full. 17. In approving the subdivision map requested by Cross -defendant Colyear, the City Council imposed conditions of 910906 shk 0 - 5 - 1120005 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW approval requiring 10 foot easements along specified lot lines of the to -be -created parcels for bridle trails, roads, and public utilities, but permitted their recordation subsequent to recordation of the final tract map. These Original Easements were denoted on the final tract map prepared by Cross -defendant Colyear's engineer as: "10' easements for bridle trails, roads, and public utilities to be reserved in documents." Moreover, Cross -Defendant Colyear signed that final tract map, providing his "consent to the preparation and filing of said map and subdivision. 18. Despite recordation of the final subdivision map on June 16, 1971, Cross -defendant Colyear has failed and refused, and continues to fail and refuse, to record the Original Easements 19. Cross -defendant Colyear purports to have fully accepted the benefits of the final subdivision approval granted to him by the City. He must, therefore, abide by the burdens of that approval as well, including his obligation to record the Original Easements. 20. The City has no plain, speedy or adequate remedy at law in that it has no power, absent an order of this Court, to enforce the terms and conditions of the final subdivision approval and tract map, and specifically to require Cross -defendant Colyear to record the Original Easements. 21. Accordingly, the City is entitled to a preliminary and permanent injunction (1) restraining Cross -defendant Colyear from performing or undertaking any construction or development on the Property or pursuant to the final subdivision approval, (2) restraining said Cross -defendant from selling, leasing or 910906 shk 0 - 6 - 1120005 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW financing as separate lots, Parcels Nos. 1 and 2, and (3) mandating said Cross -defendant to expeditiously record the Original Easements. 22. Unless this Court grants the relief requested, the City, and indeed its residents whose interests the City serves, will be irreparably harmed in that: (a). Cross -defendant Colyear will have been allowed to proceed with a subdivision project without ever having fulfilled specific terms and conditions imposed by his final subdivision approval and tract map; (b) The subdivision of the Property will have been sanctioned where, but for compliance with said terms and conditions and tract map, it would never have been approved by the City; and (c) Others unwilling to comply with conditions imposed on the grant of land use approvals by the City will be encouraged to undertake development in violation of such approvals, with the result that the effective enforcement of the City's land use decisions will be severely undermined. SECOND CAUSE OF ACTION (Void Subdivision Approval) 23. The allegations of paragraphs 1 through 15, inclusive, and 17 through 20, inclusive, and 22 are incorporated into this cause of action by reference as though set forth in full. 24. Section 16.04.110 of the City Division of Land Ordinance provides that "[f]raudulent misrepresentation of 910906 shk 0 - 7 - 1120005 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW pertinent information shall be sufficient reason to invalidate any approvals obtained pursuant to" the Ordinance. 25. The City is informed and believes, and thereon alleges, that in requesting approval of Tract No. 29408, Cross - defendant Colyear fraudulently misrepresented that he would provide the Original Easements denoted on his final subdivision map and never intended to provide such easements. Final subdivision approval was obtained from the City by fraud in the inducement, and the tract map approved is therefore invalid and void. 26. The City has no plain, speedy or adequate remedy at law in that it has no power, absent an order of this Court, to void its subdivision map approval and require that the subdivision revert to the original boundaries of the Property if Cross - defendant Colyear fails or refuses to comply with the terms and conditions of the final subdivision approval and tract map and record the Original Easements. 27. Accordingly, the City is entitled to a preliminary and permanent injunction mandating reversion of the subdivision to the original boundaries of the Property if Cross -defendant Colyear fails or refuses to comply with the terms and conditions of the final subdivision approval and tract map and record the Original Easements. THIRD CAUSE OF ACTION (Declaratory Relief) 28. The allegations of paragraphs 1 through 15, inclusive, and 17 through 19, inclusive, 24 and 25 are 910906 shk 0 - 8 - 1120005 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW incorporated into this cause of action by reference as though set forth in full. 29. An actual controversy now exists between the City and Cross -defendant Colyear relating to the City's decision to impose the Original Easement on its approval of the subdivision of the Property. The City contends that said Cross -Defendant is legally obligated to comply with the terms and conditions of the final subdivision approval and tract map and to record immediately the Original Easement, and that the subdivision should revert to the original boundaries of the Property if said Cross -defendant fails or refuses to so comply. The City is informed and believes, and thereon alleges, that Cross -Defendants, and each of them, contend in all material respects to the contrary. 30. A judicial determination of the rights and obligations of the parties is necessary and appropriate so that the parties hereto may ascertain those rights and act accordingly. /// /// /// /// /// /// /// /// /// /// /// /// 910906 shk 0 - 9 - 1120005 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON AT70RNEYs AT LAW PRAYER WHEREFORE, Cross -complainant City of Rolling Hills prays for judgment against Cross -defendants, and each of them, as follows: 1. On the first and second causes of action, that this Court issue a preliminary and permanent injunction: (a). Restraining Cross -defendant Colyear, his agents, servants, and employees and all persons and entities acting in concert with him from performing or undertaking any construction or development on the Property or pursuant to the final subdivision approval, unless and until said Cross - defendant records the Original Easements; (b). Restraining Cross -defendant Colyear, his agents, servants, and employees and all persons and entities acting in concert with him from selling, leasing or financing as separate lots, Parcels Nos. 1 and 2 of Tract No' 29408 unless and until said Cross -defendant records the Original Easements; (c). Mandating Cross -defendant Colyear to expeditiously record the Original Easements; and (d). Mandating Cross -defendant Colyear to file and record a new subdivision map which reflects the Property as a single lot as it existed prior to approval of Tract No. 29408 if said Cross -defendant fails or refuses to comply with the terms and conditions of the final subdivision approval and tract map and record the Original Easements. 910906 shk 0 10 - 1120005 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RiCHARDS, WATSON & GERSHON ATTORNEYS AT LAW 2. On the third cause of action, a declaration of the rights and duties of the City and Cross -defendants as to the disputed matters described above; 3. On all causes of action, the City's costs of suit and attorneys' fees; and 4. Such other and further relief as the Court deems just and proper. DATED: September 6, 1991 RICHARDS, WATSON & GERSHON A Professional Corporation MICHAEL JENKINS City Attorney MARSHA JONES MOUTRIE STEVEN H. KAUFMANN (tip By: STEVEN H. KAUF Attorneys for Defendant and Cross -complainant CITY OF ROLLING HILLS 910906 shk 0 - 11 - 1120005 APPLICANT: Richard C ar PAGE 2 CERTIFICATE OF COMPLIANCE CONTINUATION Lot Line Adjustment SBEC Job No. H-0512-5 R. Colyear 2-16-89 PARCEL 1 Those portions of Lots 1 and 2, Tract No. 29408, in the City of Rolling Hills, County of Los Angeles, State of California, as per map recorded in Book 808, Pages 27 to 29, of Maps, Records of Los Angeles County, described as follows: Beginning at the northeasterly corner of said Lot 1, Tract No. 29408; thence South 19'54'50" West along the easterly line of said Lot• 1, 287.31 feet to a point; thence leaving said easterly line, North 76'41'00" West, 350.00 feet to a point; thence North 42'54'54" West, 108.53 feet, more or less, to a point in the most westerly line of said Lot 2, Tract No. 29408, said point is South 6'49'48" West, 42.13 feet from the northerly terminus of said most westerly line; thence North 6'49'48" East, 42.13 feet along said most westerly line of Lot 2; thence North 54'03'48" East, 199.62 feet along the northwesterly line of said Lot 2; thence South 79'49'00" East, 25.41 feet along the most northerly line of said Lot 2 to the northwesterly corner of said Lot 1; thence South 79'49'00" East, 42.00 feet and South 88'40'41" East, 302.61 feet along the northerly lines of said Lot 1 to the point of beginning. Containing 2.35 acres, more or less. PARCEL 2 Those portions of Lots 1 and 2, Tract No. 29408, in the City of Rolling Hills, County of Los Angeles, State of California, as per map recorded in Book 808, Pages 27 to 29, of Maps, Records of Los Angeles County, described as follows: Beginning at a point in the easterly line of said Lot 1 which is 287.31 feet distant southerly, measured along said easterly line from the northeasterly corner of said Lot 1; thence South 19'54'50" West, 24.00 feet to the southeasterly corner of said Lot 1; thence along the boundary of said Lot 2 the following bearings and distances: South 19'54'50" West, 75.00 feet; South 16'00'40" East, 183.83 feet; South 21'49'50" East, 240.14 feet, to the southeasterly corner of said Lot 2; thence North 79'41'28" West, 428.34 feet; North 1'13'30" East 133.60 feet; and North 88'30'00" West, 173.85 feet to the southerly terminus of the most westerly line of said Lot 2; thence North 6.49'48' East along said most westerly line 410.87 feet to a point which is distant 42.13 feet southerly from the northerly terminus of said most westerly line; thence leaving said boundary of Lot 2, South 62'54'54" East, 108.53 feat, more or less, to a point which bears North 76'41'00" West and is distant 350.00 feet from the point of beginning; thence South 76' 41'00" East, 350.00 feet to the point of beginning. Containing 5.00 acres, more or less. SBEC Job°No. H-0512-5 2-16-89 CITY Of ROILING HILLS u 4/4 1 ZONING SSE gX/74,B/T 44 tiEC o7 1989 LOT LINE aDlUMMENT sours M A T sxazxlcsaa=WO COatJ OArIOW '1104 TC/OH PLACE .ALO$ VVROCI CITALICS CAL•FORNIA 1OZ'4 Q'). )TS-)I)S "M -+)S) SCALE I- s 66. att.." J EL DATE 2-10-x' uEm(o w, SHEET I. Of PROOF OF SERVICE (1013A CCP) STATE OF CALIFORNIA ) ss. COUNTY OF LOS ANGELES ) I am a resident of the aforesaid county, I am over the age of eighteen years and not a party to the within action; my business address is 333 South Hope Street, 38th Floor, Los Angeles, California 90071-1469. On September 6, 1991, I served the within CROSS- COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF on the interested parties in this action, by placing a true copy thereof enclosed in sealed envelopes addressed as follows: SHEPPARD, MULLIN, RICHTER & HAMPTON Frank Simpson, III Richard L. Stone Kristina M. Diaz 333 So. Hope Street, 48th Floor Los Angeles, California 90071 (BY MAIL) The envelope was mailed with postage thereon fully prepaid. I am "readily" familiar with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing an affidavit. Executed on September 6, 1991, at Los Angeles, California. (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Myra Rios .4J/26,J Type or print name ignature 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHEPPARD, MULLIN, RICHTER & HAMPTON A Partnership Including Professional Corporations FRANK SIMPSON, III RICHARD L. STONE 333 South Hope Street, 48th Floor Los Angeles, California 90071 Telephone: (213) 620-1780 Attorneys for Plaintiff and Cross -Defendant RICHARD C. COLYEAR SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES RICHARD C. COLYEAR, an individual, Petitioner and Plaintiff, v. CITY OF ROLLING HILLS, a Political Subdivision of the State of California acting by and through its City Council, Planning Commission, Agencies, Departments, Officials; ROLLING HILLS CITY COUNCIL; and DOES 1 through 25, inclusive, Respondents and Defendants. CITY OF ROLLING HILLS, a municipal corporation, Cross -Complainant, v. RICHARD C. COLYEAR, an individual, Cross -Defendant. CASE NO. YC 005965 FIRST SET OF INTERROGATORIES BY RICHARD COLYEAR PROPOUNDED TO CITY OF ROLLING HILLS Trial Date: Discovery Cutoff: Motion Cutoff: None None None -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROPOUNDING PARTY: Petitioner, Plaintiff and Cross -Defendant Richard C. Colyear ("Colyear") RESPONDING PARTY: Respondent, Defendant and Cross - Complainant City of Rolling Hills ("The City") SET NO.: One (1) DEFINITIONS 1. As used herein, the term "COMPLAINT" means and refers to Case No. YC005965, entitled Richard C. Colyear v. City of Rolling Hills, a Political Subdivision of the State of California acting and by and through its City Council, Planning Commission, Agencies, Departments, Officials; Rolling Hills City Council, et al., filed in the Los Angeles Superior Court on or about May 22, 1991. 2. As used herein, the term "YOU" or "YOUR" means and includes The City of Rolling Hills acting by and through its City Council, Planning Commission, agencies, departments and/or officials and/or the Rolling Hills City Council and any of its present or former attorneys, servants, agents or representatives and all accountants, auditors and other persons acting or purporting to act on behalf of or under The City of Rolling Hills' • -2- • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and/or the Rolling Hills City Council's or its attorneys' authorization, employment, direction or control. 3. The term "DOCUMENT" or "DOCUMENTS" shall mean and include all writings as defined in California Evidence Code § 250, including all versions, whether formal, informal or otherwise, as well as all copies which differ in any way from the original, in the actual or constructive possession, custody, care or control of YOU. 4. The term "COMMUNICATIONS" shall mean and include all written, oral, telephonic or other inquiries, discussions, conversations, negotiations, agreements, understandings, meetings, letters, notes, telegrams, advertisements and interviews. 5. The term "FACT" includes all circumstances, events and evidence pertaining to, relating to or touching upon the item in question. 6. As used herein, the term "IDENTIFY" means and refers to the name, last known residence address, last known business address, and last known business and residence telephone numbers for each person or party mentioned or referred to in the answer. 7. As used herein in reference to DOCUMENTS, the term "IDENTIFY" means and refers to the date of the DOCUMENT, the addressee of the DOCUMENT, the sender of the DOCUMENT, the general -3- • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 subject of the DOCUMENT, and IDENTIFY the person(s) who are in possession of or responsible for the DOCUMENT. INSTRUCTIONS 1. These interrogatories call for all information (including any information contained in any document or writing as defined herein) that is known or that is available to you, including all information in the possession of, or under the control of, your employees, attorneys, accountants, auditors, other professional persons or any investigators or other persons acting under your or your attorney's authorization, employment, direction or control. 2. If you cannot answer any interrogatory fully and completely after exercising a reasonable effort and due diligence to secure any information requested, you should (a) so state and answer each such interrogatory to the fullest extent possible; (b) state the facts on which you relied to support your assertion that you are unable to answer the interrogatory fully and completely; (c) state what knowledge, information or belief you have concerning the unanswered portion of each such interrogatory; and (d) state what actions you have taken to locate the information necessary to answer said interrogatory. 3. If you should make any objection to any interrogatory on the ground that it calls for disclosure of a -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 communication or information protected from discovery by any privilege or doctrine, including, but not limited to, the attorney -client privilege or work product doctrine, please provide the following information concerning any such communication or information, where applicable: (a) its nature (e.g., telephone communication, letter, memorandum) and whether it is reflected in or evidenced by any document or writing, as defined herein; (b) the date on which it was made; and (c) the name, address and occupation of each person (i) who was a party to said communication, (ii) was present at the time (or who overheard) said communication, and/or (iii) to whom said communication or information has been disclosed in whole or in part and the reason therefor. 4. Whenever the context permits, the masculine refers to and includes the feminine and the neuter, the singular refers to and includes the plural, the plural refers to and includes the singular, and the conjunctive shall include the disjunctive and vice versa (e.g., the word "and" as well as the word "or" shall mean and include "and/or"). 5. If you will do so without a request to produce, please attach any and all writings, statements and communications identified in responding to the interrogatories herein. -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORIES INTERROGATORY NO. 1: Please IDENTIFY the last known business and residence addresses and telephone numbers for Lola Ungar, Ray Hamada, Ginny Leeuwenburgh, Betty Volkert, Terry Belanger, Allen Roberts, Thomas F. Heinsheimer, Godfrey Pernell, Jody Murdock, Gordana Swanson, Craig Nealis, Ann Palatino, Kevin Ennis, Lucille Rogers and Mr./Mrs. Sawyer. INTERROGATORY NO. 2: With respect to the allegations of YOUR cross -complaint at paragraph 6 that "on or about October 25, 1970, pursuant to the Subdivision Map Act (Government Code § 66410, et seq.) and the City Municipal Code, the City Council of Rolling Hills ("City Council") approved the tract map, but subject to terms and conditions requiring, among other things, ten -foot easements along specified lot lines of the to -be -created parcels for bridle trails, roads and public utilities to be reserved in documents subject to recordation of the subdivision map . . . ." Please state: (a) Each and every FACT upon which YOU base the allegations of paragraph 6 of YOUR cross -complaint; (b) IDENTIFY each and every person whom YOU know or believe has knowledge of the FACTS stated above; and -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (c) IDENTIFY all documents which evidence, support, relate to, refer to or concern in any manner the allegations of paragraph 6 of YOUR cross -complaint and each FACT in support thereof. INTERROGATORY NO. 3: With respect to the allegations of YOUR cross -complaint at paragraph 9 that, "while fully accepting the benefits of the subdivision approved, said cross -defendant did not record and in fact has never recorded, the Original Easements imposed . . please state: (a) Each and every FACT upon which YOU base the allegations of paragraph 9 of YOUR cross -complaint; (b) IDENTIFY each and every person whom YOU know or believe has knowledge of the FACTS stated above; and (c) IDENTIFY all DOCUMENTS which evidence, support, relate to, refer to or concern in any manner the allegations of paragraph 6 of YOUR cross -complaint and each FACT in support thereof. INTERROGATORY NO. 4: With respect to the allegations of YOUR cross -complaint at paragraph 11 that, "on or about May 16, 1989, the Planning Commission of the City of Rolling Hills ("Planning Commission") denied the application based upon the existence of an illegal -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 guest house with kitchen facilities on Parcel No. 2, in violation of the city Zoning Code . . . ", please state: (a) Each and every FACT upon which YOU base the allegations of paragraph 11 of YOUR cross -complaint; (b) IDENTIFY each and every person whom YOU know or believe has knowledge of the FACTS stated above; and (c) IDENTIFY all DOCUMENTS which evidence, support, relate to, refer to or concern in any manner the allegations of paragraph 6 of YOUR cross -complaint and each FACT in support thereof. INTERROGATORY NO. 5: With respect to YOUR allegations in YOUR cross -complaint at paragraph 25 that, "final subdivision approval was obtained from the city by fraud in the inducement, and the tract map approved is therefore invalid and void . . .", please state: (a) Each and every FACT upon which YOU base the allegations of paragraph 25 of YOUR cross -complaint; (b) IDENTIFY each and every person whom YOU know or believe has knowledge of the FACTS stated above; and (c) IDENTIFY all DOCUMENTS which evidence, support, relate to, refer to or concern in any manner the allegations of -8- paragraph 6 of YOUR cross -complaint and each FACT in support 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 thereof. INTERROGATORY NO. 6: Please IDENTIFY each and every person who participated in any manner in the decision to approve Resolution No. 635 of the City Council of the City of Rolling Hills,authorizing the issuance of a Certificate of Compliance for Lot Line Adjustment in Zoning Case No. 414. INTERROGATORY NO. 7: Please IDENTIFY each and every Resolution of the City Council of the City of Rolling Hills for the period 1988 through 1991 which conditioned approval of a lot line adjustment upon an easement to the Rolling Hills Community Association for ingress and egress purposes to construct underground utilities for future sewer line installation. INTERROGATORY NO. 8: Were the "Original Easements" as referenced in YOUR cross -complaint to be provided to the Rolling Hills Community Association? If not: (a) Please IDENTIFY the person or persons to whom the Original Easements were to be granted; and, -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) IDENTIFY all DOCUMENTS which relate to, refer to, or concern in any manner the "Original Easements." DATED: November 27, 1991 SHEPPARD, MULLIN, RICHTER & HAMPTON By 1(2J ` �� Z Richard L. Stone Attorneys for Plaintiff and Cross -Defendant RICHARD C. COLYEAR W3\S\P0240M24.LC8 -10- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF PERSONAL SERVICE I, Barbara Clark, say that I am and was at all times herein mentioned, a citizen of the United States and a resident of the County of Los Angeles, over the age of eighteen, and not a party to the within action or proceeding; that my business address is 333 South Hope Street, 48th Floor, Los Angeles, California 90071. That on November 27, 1991, I served the within FIRST SET OF INTERROGATORIES BY RICHARD COLYEAR PROPOUNDED TO CITY OF ROLLING HILLS on the parties in said action or proceeding by personally delivering a true copy thereof to the attorney of record for said party at the office address of said attorney, as follows: Person Served: Michael Jenkins RICHARDS, WATSON & GERSHON 333 S. Hope St., 38th F1. Los Angeles, California 90071 I declare under penalty of perjury that the foregoing is true and correct. Executed at Los Angeles, California on November 27, 1991 -1- 22 23 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 SHEPPARD, MULLIN, RICHTER & HAMPTON A Partnership Including Professional Corporations FRANK SIMPSON, III RICHARD L. STONE 333 South Hope Street, 48th Floor Los Angeles, California 90071 Telephone: (213) 620-1780 Attorneys for Plaintiff and Cross -Defendant RICHARD C. COLYEAR SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES RICHARD C. COLYEAR, an individual, Petitioner and Plaintiff, v. CITY OF ROLLING HILLS, a 15 Political Subdivision of the State of California acting by 16 and through its City Council, Planning Commission, Agencies, 17 Departments, Officials; ROLLING HILLS CITY COUNCIL; and DOES 1 18 through 25, inclusive, 19 20 Respondents and Defendants. 21 CITY OF ROLLING HILLS, a municipal corporation, Cross -Complainant, v. RICHARD C. COLYEAR, an 25 individual, 26 27 28 Cross -Defendant. CASE NO. YC 005965 PETITIONER AND PLAINTIFF RICHARD COLYEAR'S FIRST DEMAND FOR PRODUCTION, INSPECTION AND COPYING OF DOCUMENTS PROPOUNDED TO DEFENDANT AND CROSS - COMPLAINANT CITY OF ROLLING HILLS Trial Date: Discovery Cutoff: Motion Cutoff: None None None -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROPOUNDING PARTY: RESPONDING PARTY: Petitioner, Plaintiff and Cross -Defendant Richard C. Colyear ("Colyear") Respondent, Defendant and Cross - Complainant City of Rolling Hills ("The City") SET NO.: One (1) Pursuant to the provisions of C.C.P. § 2031, petitioner and plaintiff Richard C. Colyear demands that defendant and cross - complainant City of Rolling Hills produce the documents described herein, for inspection and copying on December 27, 1991, at the offices of Sheppard, Mullin, Richter & Hampton, located at 333 South Hope Street, 48th Floor, Los Angeles, California 90071. DEFINITIONS 1. As used herein, the term "COMPLAINT" means and refers to Case No. YC005965, entitled Richard C. Colyear v. City of Rolling Hills, a Political Subdivision of the State of California acting and by and through its City Council, Planning Commission, Agencies, Departments, Officials; Rollinci Hills City Council, et al., filed in the Los Angeles Superior Court on or about May 22, 1991. 2. As used herein, the term "YOU" or "YOUR" means and includes The City of Rolling Hills acting by and through its City -2- • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Council, Planning Commission, agencies, departments and/or officials and/or the Rolling Hills City Council and any of its present or former attorneys, servants, agents or representatives and all accountants, auditors and other persons acting or purporting to act on behalf of or under The City of Rolling Hills' and/or the Rolling Hills City Council's or its attorneys' authorization, employment, direction or control. 3. The term "DOCUMENT" shall mean and include all writings as defined in California Evidence Code § 250, including all versions, whether formal, informal or otherwise, as well as all copies which differ in any way from the original, in the actual or constructive possession, custody, care or control of YOU. 4. The term "COMMUNICATIONS" shall mean and include all written, oral, telephonic or other inquiries, discussions, conversations, negotiations, agreements, understandings, meetings, letters, notes, telegrams, advertisements and interviews. 5. The term "FACT" includes all circumstances, events and evidence pertaining to, relating to or touching upon the item in question. INSTRUCTIONS 1. Colyear requests that, in answering the following document requests, you quote each request for each response. -3- • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Colyear further requests that you indicate, with respect to each document or category of documents produced, the number of the document request to which it is responsive. 2. With respect to any document responsive to these requests that you contend that you are not required to produce because of a claim of privilege (which you are not presently prepared to waive), describe each document withheld from the production as follows: (a) Provide the date of each such document; (b) Identify each person who wrote, signed, initialled, dictated, or otherwise participated in the creation of the document; (c) Identify each person who was present when it was prepared; (d) Identify each person to whom the original copy of the document was sent; (e) Identify each person who has seen the document; (f) Identify each person who has custody of the original or a copy of the document; -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (g) Identify every document that refers, discusses, analyzes or comments upon it in whole or in part, or which contains any or all of the document's contents; and (h) State the privilege asserted (e.g., lawyer - client, self-incrimination) and any statute which you contend supports your assertion of such privilege. DOCUMENTS REQUESTED REQUEST FOR PRODUCTION NO. 1: A copy of The City's Sanitary Sewer Feasibility Study prepared by ASL Consulting Engineers, as referenced in Resolution No. 635 of the City of Rolling Hills. REQUEST FOR PRODUCTION NO. 2: Any and all DOCUMENTS, including, but not limited to, memoranda, minutes, resolutions and notes, which refer to, concern or relate to the adjacent parcels of real property located at 35 Crest Road West, City of Rolling Hills, owned by Richard C. Colyear. REQUEST FOR PRODUCTION NO. 3: Any and all DOCUMENTS, including, but not limited to, memoranda, minutes, resolutions and notes, which refer to, concern or relate to applications, requests, approvals, or denials of lot -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 line adjustments for the two adjacent parcels of real property located at 35 Crest Road West, owned by Richard C. Colyear. REQUEST FOR PRODUCTION NO. 4: All DOCUMENTS, including but not limited to files, notes, memoranda, prepared or maintained by Lola Ungar and which refer to, concern or relate to Richard C. Colyear or the two adjacent parcels owned by him located at 35 Crest Road West. REQUEST FOR PRODUCTION NO. 5: Any and all DOCUMENTS, including but not limited to, files, notes, memoranda, prepared or maintained by Ray Hamada, Ginny Leeuwenburgh, Betty Volkert, Terry Belanger, Allen Roberts, Thomas F. Heinsheimer, Godfrey Pernell, Jody Murdock, Gordana Swanson, Craig Nealis, Ann Palatino, Kevin Ennis, Lucille Rogers and Mr./Mrs. Sawyer which refer to, concern or relate to Richard C. Colyear or the two adjacent parcels owned by him and located at 35 Crest Road West. REQUEST FOR PRODUCTION NO. 6: Any and all DOCUMENTS, including, but not limited to, memoranda, notes and minutes which refer to, concern or relate to Resolution No. 635 of the City Council of the City of Rolling Hilts, including but not limited to those prepared by or maintained by Lola Ungar, Ray Hamada, Ginny Leeuwenburgh, Betty Volkert, Terry Belanger, Allen Roberts, Thomas F.''Beinsheimer, Godfrey Pernell, Jody Murdock, -6- • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Gordana Swanson, Craig Nealis, Ann Palatino, Kevin Ennis, Lucille Rogers and Mr./Mrs. Sawyer. REQUEST FOR PRODUCTION NO. 7: Any and all DOCUMENTS, including, but not limited to, memoranda, notes and minutes which refer to, concern or relate to the February 13, 1991, hearing of the City Council of the City of Rolling Hills concerning the two adjacent parcels located at 35 Crest Road West, Zoning Case No. 414, including but not limited to those prepared by or maintained by Lola Ungar, Ray Hamada, Ginny Leeuwenburgh, Betty Volkert, Terry Belanger, Allen Roberts, Thomas F. Heinsheimer, Godfrey Pernell, Jody Murdock, Gordana Swanson, Craig Nealis, Ann Palatino, Kevin Ennis, Lucille Rogers and Mr Mrs. Sawyer. 16 REQUEST FOR PRODUCTION NO. 8: 17 Any and all DOCUMENTS which refer to, concern or relate 18 to any COMMUNICATIONS between Peggy Minor and The City through any 19 of its representatives, including but not limited to Lola Ungar, 20 Ray Hamada, Ginny Leeuwenburgh, Betty Volkert, Terry Belanger, 21 Allen Roberts, Thomas F. Heinsheimer, Godfrey Pernell, 22 Jody Murdock, Gordana Swanson, Craig Nealis, Ann Palatino, 23 Kevin Ennis, Lucille Rogers and Mr./Mrs. Sawyer which concern in 24 any manner Richard C. Colyear or the two adjacent parcels owned by 25 him and located at 35 Crest Road West. 26 27 28 -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST FOR PRODUCTION NO. 9: Any and all DOCUMENTS disseminated by any third party to the City of Rolling Hills, the City Council or the City of Rolling Hilts Planning Commission, which refer to, concern or relate to Richard C. Colyear or the two adjacent parcels owned by him and located at 35 Crest Road West. REQUEST FOR PRODUCTION NO. 10: Any and all DOCUMENTS disseminated by any City of Rolling Hilts employee, agent or representative, including but not limited to Lola Ungar, Ray Hamada, Ginny Leeuwenburgh, Betty Volkert, Terry Belanger, Allen Roberts, Thomas F. Heinsheimer, Godfrey Pernell, Jody Murdock, Gordana Swanson, Craig Nealis, Ann Palatino, Kevin Ennis, Lucille Rogers and Mr./Mrs. Sawyer to any person which refers to, concerns or relates to Richard C. Colyear or the two adjacent parcels owned by him and located at 35 Crest Road West. REQUEST FOR PRODUCTION NO. 11: Any and all DOCUMENTS including, but not limited to, memoranda, minutes and notes, which refer to, concern or relate to the January 16, 1990, February 20, 1990, and/or March 20, 1990, hearings of the City of Rolling Hills' Planning Commission on Zoning Case No. 414. REQUEST FOR PRODUCTION NO. 12: Any and all DOCUMENTS including, but not limited to, memoranda, minutes and notes, which refer to, concern or relate to -8- • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the site review conducted on January 6, 1990, at Mr. Colyear's property. REQUEST FOR PRODUCTION NO. 13: Any and all DOCUMENTS which evidence, relate to, refer to or in any manner concern the allegations of paragraph 12 of YOUR answer to the COMPLAINT that "the City avers that the Planning Commission adopted Resolution 635 denying petitioner's application on April 7, 1990." REQUEST FOR PRODUCTION NO. 14: Any and all DOCUMENTS which evidence, relate to, refer to or in any manner concern the allegations of paragraph 23 of YOUR answer to the COMPLAINT that "the City denies that it conditioned approval of petitioner's lot line adjustment upon the grant of an easement. The City avers that it conditioned the adjustment upon the recordation of an easement." REQUEST FOR PRODUCTION NO. 15: Any and all DOCUMENTS which evidence, relate to, refer to or in any manner concern the allegations of paragraph 35 of YOUR answer to the COMPLAINT that "the City avers that the requirement that the petitioner dedicate an easement for several purposes was imposed upon petitioner in 1970 as a condition of subdivision . . . • -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST FOR PRODUCTION NO. 16: Any andall documents which evidence, relate to, refer to or in any manner concern the allegations of paragraph 47 of YOUR answer to the COMPLAINT that "in conjunction with the subdivision of the property, the petitioner falsely promised to the City that he would dedicate and record the Original Easements." REOUEST FOR PRODUCTION NO. 17: Any and all DOCUMENTS which evidence, relate to, refer to or in any manner concern the allegations of paragraph 6 of YOUR cross -complaint that "on or about October 25, 1970, pursuant to the Subdivision Map Act (Government Code § 66410, et seq.) in the City Municipal Code the City Council of Rolling Hills ("City Council") approved the tract map but subject to terms and conditions requiring, among other things ten foot easements along specified lot lines of the to -be -created parcels for bridle trails, and public utilities to be reserved in documents subsequent to recordation of the subdivision map . REQUEST FOR PRODUCTION NO. 18: Any and all DOCUMENTS which evidence, relate to, refer to or in any manner concern the allegations of paragraph 9 of YOUR cross -complaint that "while fully accepting the benefits of the subdivision approved, said cross -defendant did not record, and in fact has never recorded, the original easements imposed." -10- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST FOR PRODUCTION NO. 19: Any and all DOCUMENTS which evidence, relate to, refer to or in any manner concern the allegations of paragraph 11 of YOUR cross -complaint that "on or about May 16, 1989, the Planning Commission of the City of Rolling Hills ("Planning Commission") denied the application based on the existence of an illegal guest house with kitchen facilities on parcel No. 2 . . REQUEST FOR PRODUCTION NO. 20: Any and all DOCUMENTS which evidence, relate to, refer to or in any manner concern the allegations of paragraph 14 of YOUR cross -complaint that "the City Council approved the lot line adjustment but only upon the condition that, in permitting an adjustment of the original lot line approved, cross -defendant Colyear correct his failure to record the Original Easements imposed." REQUEST FOR PRODUCTION NO. 21: Any and all DOCUMENTS which evidence, relate to, refer to or in any manner concern the allegations of paragraph 17 of YOUR cross -complaint that "in approving the subdivision map requested by cross -defendant Colyear, the City Council imposed conditions of approval requiring ten -foot easements along specified lot lines of the to -be -created parcels for bridle trails, roads and public utilities, but permitted their recordation subsequent to recordation of the final tract map." -11- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST FOR PRODUCTION NO. 22: Any and all DOCUMENTS which evidence, relate to, refer to, or in any manner concern the allegations of paragraph 25 of YOUR cross -complaint that "in requesting approval of Tract No. 29408, cross -defendant Colyear fraudulently misrepresented that he would provide"tYre..original easements denoted on his final subdivision map \d never intended to provide such easements." DATED: November 26, 1991 SHEPPARD, MULLIN, RICHTER & HAMPTON By Richard L. Stone Attorneys for Plaintiff and Cross -Defendant RICHARD C. COLYEAR W3\S\P0240C24.LC8 -12- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF PERSONAL SERVICE I, Barbara Clark, say that I am and was at all times herein mentioned, a citizen of the United States and a resident of the County of Los Angeles, over the age of eighteen, and not a party to the within action or proceeding; that my business address is 333 South Hope Street, 48th Floor, Los Angeles, California 90071. That on November 27, 1991, I served the within PETITIONER AND PLAINTIFF RICHARD COLYEAR'S FIRST DEMAND FOR PRODUCTION, INSPECTION AND COPYING OF DOCUMENTS PROPOUNDED TO DEFENDANT AND CROSS -COMPLAINANT CITY OF ROLLING HILLS on the parties in said action or proceeding by personally delivering a true copy thereof to the attorney of record for said party at the office address of said attorney, as follows: Person Served: Michael Jenkins RICHARDS, WATSON & GERSHON 333 S. Hope St., 38th Fl. Los Angeles, California 90071 I declare under penalty of perjury that the foregoing is true and correct. Executed at Los Angeles, California on November 27, 1991 Barbara Clark -2- • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW RICHARDS, WATSON & GERSHON A Professional Corporation 333 South Hope Street, 38th Floor Los Angeles, California 90071-1469 (213) 626-8484 Attorneys for the City of Rolling Hills SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES RICHARD C. COLYEAR, an individual, ) Case No. YC005965 Petitioner and Plaintiff, ) RECORD OF ADMINISTRATIVE PROCEEDINGS v. ) ) CITY OF ROLLING HILLS, etc., et ) al., ) Respondent and Defendant. ) CITY OF ROLLING HILLS, a municipal ) corporation, ) Cross -Complainant, ) ) ) v• ) ) RICHARD C. COLYEAR, an individual, ) ) Cross -Defendant. ) ) 1120076 • INDEX TO ADMINISTRATIVE RECORD OF PROCEEDINGS RE CASE YC005965 Item Date Description 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW 1. 10/14/70 Letter to the Planning Commission/City of Rolling Hills re Planning Advisory Agency review of the map Tentative Tract No. 29408. 2. 10/20/70 Minutes of the Regular Meeting of the Planning Commission of the City of Rolling Hills, California. 3. 10/25/70 City Council Meeting re conversation which took place after the meeting in which Mr. Colyear conveyed to Councilman Fay it was not his intention to ever divide the remaining parcel. 4. 06/14/71 City Council Meeting re Final Map approval of Tract 29408, Richard Colyear, 37 Crest Road West. 5. 05/08/72 City Council Meeting re Underground Utilities - Richard Colyear. Mayor Pearson held the matter on agenda until easement could be clarified by the Association. 6. 05/22/72 City Council Meeting re Underground Utilities - Richard Colyear, Tract 29408. Mayor Pearson held the matter on agenda until problem of easement had been resolved in the Association. 7. 07/24/72 City Council Meeting re Underground Utilities - Richard Colyear. Board of Directors' letter to Mr. Colyear that he contact the Association to establish trails on his property, and complying with requirements for completing his subdivision. 8. 08/14/72 City Council Meeting re Underground Utilities - Richard Colyear, Tract 29408. The council voted to bring the matter to a conclusion by proceeding with installation of underground utilities on the tract. (Mr. Colyear declined to reinstate a letter of credit in the amount of $6,500.) 9. 06/30/80 Letter to Board of Directors from Thomas G. Styskal with enclosure/copy of the License Agreement. 10. 04/06/81 Letter to Board of Directors from Thomas G. Styskal with enclosure/copy of the Settlement Agreement executed by Colyear and his attorney. 911105 mr 0 1120076 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW 11. 06/11/81 Letter to Board of Directors from Thomas G. Styskal with enclosure/original License Agreement executed by Colyear and recorded with the Los Angeles County Recorder's office. 12. 03/11/87 Letter to Board of Directors from Richard C. Colyear amending original permit request (requesting permission to use easement area). 13. 01/14/91 Transmittal to Richards, Watson & Gershon from the City of Rolling Hilis: Vicinity Map; Map of Tract No. 29408 surveyed by South Bay Engineering Corp.; Plat Map, IACA Map; and Proposed Grading Plan for Lot 1. 14. 02/28/89 Certificate of Compliance, Request for Certificate of Compliance, City of Rolling Hills executed by Richard C. Colyear. 15. 03/03/89 Transmittal to City Hall, Rolling Hills from South Bay Engineering Corp.: address labels and City of Rolling Hills Zoning Case/Certified Property Owners' List Affidavit of John E. Rempert/lot line adjustment. 16. 03/04/89 Published in Rolling Hilis Herald and Palos Verdes Peninsula News "Notice of Public Hearing Before The Planning Commission of the City of Rolling Hills." 16. 03/04/89 Proof of Publication of "Notice of Public Hearing Before The Planning Commission of the City of Rolling Hills." 17. 03/06/89 Letter to the Planning Commission of the City of Rolling Hills from Richard E. Krauthamer, M.D. re his opposition to request for lot line adjustment in zone case Number 387. 18. 03/14/89 Minutes of Public Hearing re Zone Case No. 387, Richard Colyear, 35 Crest Road West. Matter would be continued until next meeting, March 21. 19. 03/21/89 Minutes of Public Hearing re Zone Case No. 387, Richard Colyear, 35 Crest Road West. South Bay Engineering reported and the matter was continued for additional information. 20. 05/16/89 Minutes of Public Hearing re Zone Case No. 387, Richard Colyear, 35 Crest Road West. Request for Certification of Compliance was denied. 911105 mr 0 1120076 • • 12 1 2 3 4 5 6 7 8 9 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW 21. 06/12/89 Minutes of Public Hearing re Zone Case No. 387, Richard Colyear, 35 Crest Road West. The Planning Commission adopted a Resolution of Denial and the Council accepted the denial for file. 22. 06/12/89 A Resolution of the Planning Commission of the City of Rolling Hills Denying a Certificate of Compliance for Lot Line Adjustment in Zoning Case No. 387 (draft). 23. 12/06/89 Agenda Memorandum of the Planning Commission. Applicant has removed illegal condition on property and requests the Commission to rehear matter on lot line adjustment. State Subdivision Map Act attached. 24.. ? Notice of Public Hearing Before The Planning Commission of the City of Rolling Hills, California. Input is requested: Subject - Request for a Certificate of Compliance for Lot imp Adjustment -Zoning Case No. 414. Hearing ` (e, I�,mp Tuesday, Jan. 16, 1990. 25. 01/05/90 Staff Report to Planning Commission. Commission is requested to consider City Attorney's opinion. Request is recommended for approval should the application comply with requirements set forth in Municipal Code and State Subdivision Map Act. 26. 01/16/90 Letter to Chairman Roberts and Members of the Planning Commission from Kevin G. Ennis of Richards, Watson and Gershon re Opinion. 27. 03/01/90 Letter to Mayor Ginny Leeuwenburgh from Douglas K. McHattie of South Bay Engineering Corp. re Zoning Case No. 414 requesting that the City Council take jurisdiction of this case due to Planning Commission's inaction. 28. 03/30/90 Letter to Terry Belanger (City Manager), City Council and Kevin Ennis of Richards, Watson & Gershon from Martin R. Fischer of Sheppard, Mullin, Richter & Hampton. Mr. Colyear appeals the Council's decision to deny his application for a lot line-djustment. 29. 04/07/90 Resolution No. Planning Commission denies a Certificati f- ompliance for lot line adjustment. 911105 mr 0 - 4 - 1120076 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW 30. 04/16/90 Letter to City Clerk from Martin R. Fischer of Sheppard, Mullin, Richter & Hampton informing the City that Colyear appeals the denial of his application and that the City should reverse the Planning Commission's decision and refund the $3,500 fee. 31. 05/18/90 Letter to City Clerk from Martin R. Fischer of Sheppard, Mullin, Richter & Hampton re constituting a claim for monetary damages/$3,500 appeal fee. 32. 05/29/90 Minutes of an Adjourned Meeting of the City Council. Claimed filed by Richard Colyear. Staff rejects the claim. 33. 06/08/90 Letter to Martin R. Fischer of Sheppard, Mullin, Richter & Hampton from Kevin Ennis of Richards, Watson & Gershon re telephone conversation of June 6, 1990. Enclosing copy of Planning Commission's Resolution Denying a Certificate of Compliance for Lot Line Adjustment in Zoning Case No. 414. 34. 07/31/90 Letter to Martin R. Fischer of Sheppard, Mullin, Richter & Hampton from Kevin Ennis of Richards, Watson & Gershon re Mr. Ennis' request for additional data or whether the Council should proceed with the appeal using the 4/18/90 letter as the response to its request. 35. 08/08/90 Letter to Kevin Ennis of Richards, Watson & Gershon from Frank Simpson of Sheppard, Mullin, Richter & Hampton re their intention to respond to letter to 7/31/90. 36. 11/13/90 Memorandum to Peggy Minor (Manager) from Craig Nealis (City Manager)/Rolling Hills Community Association re their authorization and approval of the use of its easement by Colyear for private driveway access. 37. 12/07/90 Letter to Richard L. Stone of Sheppard, Mullin, Richter & Hampton from Kevin Ennis of Richards, Watson & Gershon re request for remaining documents or information; consent to an extension of time for filing a cause of action and waive the applicable statute of limitation; and confirmed a continued public hearing on the appeal for 12/17/90. 38. 12/08/90 Notice of Public Hearing set for 12/17/90 re Appeal of Planning Commission's Denial of Zoning Case No. 414. 911105 mr 0 - 5 - 1120076 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW 39. 12/13/90 Memorandum to the Mayor and Members of the City Council from Kevin Ennis of Richards, Watson & Gershon re his recommendation that the City Council adopt the attached Resolution approving the proposed lot line adjustment subject to conditions. 40. 12/14/90 Letter to Craig Nealis (City Manager) from Kevin Ennis of Richards, Watson & Gershon re enclosure of Memorandum to the Mayor and Members of. the City Council from Kevin Ennis of Richards, Watson & Gershon re his recommendation that the City Council adopt the attached Resolution approving the proposed lot line adjustment subject to conditions for City Council's agenda packet. 41. 12/17/90 Memorandum to the Mayor and City Council from Craig Nealis (City Manager) re enclosure of Memorandum to the Mayor and Members of the City Council from Kevin Ennis of Richards, Watson & Gershon re his recommendation that the City Council adopt the attached Resolution approving the proposed lot line adjustment subject to conditions and Colyear's Lot Line Adjustment Map. subject to public hearing. 42. 12/19/90 Letter to Lisa Popovich of Sheppard, Mullin, Richter & Hampton from Kevin Ennis of Richards, Watson & Gershon re 12/17/90 public hearing and continuance to 1/14/91 to allow applicant and our office to review issues raised by Mr. Ghormley (parents residence); consent to an extension of time for filing a cause of action and waive the applicable statute of limitation to 1/15/91. 43. 01/04/91 Notice of Special Meeting of the Rolling Hills City Council re Appeal of Planning Commission's Denial of Zoning Case No. 414 on 1/12/91. 44. 01/09/91 Letter to Kevin Ennis of Richards, Watson & Gershon from Martin R. Fischer of Sheppard, Mullin, Richter & Hampton. Response to Ennis' letter of 12/19/90 re issues raised by Mr. Ghormley. Enclosures, copy of Final Judgment of Colvear v. Rolling Hills Community Assoc. of Rancho Palos Verdes filed 11/13/81; and letter to City Clerk from Martin R. Fischer of Sheppard, Mullin, Richter & Hampton. 911105 mr 0 - 6 - 1120076 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW 45. 01/10/91 Letter to Mayor and City Council from Kevin Ennis of Richards, Watson & Gershon. Recommendation is to approve lot line adjustment with a strong disclaimer to the effect it does not constitute any representation that the lot is able to be developed within established zoning standards and does not limit or impair the City's application of the Site Plan Review Ordinance at such time as an application is made for development. 46. 01/10/91 Letter to Kevin Ennis of Richards, Watson & Gershon from Lisa Popovich of Sheppard, Mullin, Richter & Hampton re draft minutes of the City Council meeting of 12/14/90 which have not been received as agreed. 47. 01/10/91 Letter to Lisa Popovich of Sheppard, Mullin, Richter & Hampton from Kevin Ennis of Richards, Watson & Gershon re request of draft minutes of the City Council meeting of 12/14/90 (enclosed copy) . 48. 01/10/91 Agenda/Special Meeting of City Council on 1/12/91 re Appeal of Planning Commission's Denial of Zoning Case No. 414 on 1/12/91 with attachments. 49. 01/12/91 Minutes of an Adjourned Meeting of the City Council. Mr. McHattie was requested to prepare a composite plan which showed the Colyears' property and those property owners surrounding 35 Crest Road West with any known easements. 50. 01/14/91 Minutes of a Regular Meeting of the City Council. Staff was directed to obtain comments from the Community Assoc. regarding perimeter easements. Public hearing would be held open until 1/28/91 Council meeting. 51. 01/15/91 Memorandum to Peggy Minor (Manager) from Craig Nealis (City Manager)/Rolling Hills Community Association re appreciation of the City's cooperation in bringing the Colyear property into conformance by dedication of easements on all of the exterior boundaries of the two lots involved in the lot line adjustment and be maintained for any future development. 52. 01/16/91 Letter to City Council from Richard C. Colyear re claim for a refund of a $3,500 Appeal Fee. States he never authorized anyone to make any such offer of withdrawing his suit to recover the fee. Filed suit on 1/15/91. 911105 mr 0 - 7 - 1120076 • • 53. 01/16/91 Letter to Dr. Saks from Richard C. Colyear re his intention to deed to the vacant lot an easement and will seem to needlessly inconvenience Dr. Saks which will be heard 1/28/91 by City Council. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW 54. 01/22/91 Letter to Colyear from Tom Ghormley informing him that his appearance at the City Council meetings was to inform City Council of the continuing litigation between them. 55. 01/28/91 Letter to Mike Jenkins of Richards, Watson & Gershon from Richard L. Stone of Sheppard, Mullin, Richter & Hampton re Jenkins' recommendation for a continuance of hearing scheduled on 1/28/91, and if City Council can make a decision one way or the other with respect to the lot line adjustment on 2/11/91 they would have no objection to a continuance until then. 56. 02/06/91 Letter to Peggy Minor (General Manager)/Rolling Hills Community Assoc. from Kevin Ennis of Richards, Watson & Gershon re attached proposed Resolution of the City Council. 57. 02/13/91 Resolution No. 635 authorizing the issuance of a Certificate of Compliance for Lot Line Adjustment in Zoning Case No. 414. DATED: November 5, 1991 911105 mr 0 RICHARDS, WATSON & GERSHON A Professional Corporation By: Steven H. Kaufmann Attorneys for the City of Rolling Hills - 8 - 1120076 191 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name anaActresS): RICHARD L. STONE SHEPPARD, MULLIN, RICHTER & HAMPTON 333 S. HOPE ST., 48TH FL. LOS ANGELES, CA 90071 ATTORNEY FOR (Name): Plaintiff and Cross -Defendant SUPERIORNCOURTIOFTTHE STATEIOF CALIFORNIA SOUTHWEST TELEPHONE NO: (213) 620-1780 SHORT TITLE OF CASE: COLYEAR v. CITY OF ROLLING HILLS, et al . FORM INTERROGATORIES Asking Party: Plaintiff Richard C. Colyear Answering Party: Defendant City of Rolling Hills set No.: One (1) CASE NUMBER: YC 005965 Sec. 1. Instructions to All Parties (a) These are general instructions. For time limitations, requirements for service on other parties, and other details see Code of Civil Procedure section 2030 and the cases construing it (b) These interrogatories do not change existing law relating to interrogatories nor do they affect an answering party's right to assert any privilege or objection. Sec. 2. Instructions to the Asking Party (a) These interrogatories are designed for optional use in the superior courts only. A separate set of interrogatories, Form Interrogatories —Economic Litigation, which have no subparts, are designed for optional use in municipal and justice courts. However, they also may be used in superior courts. See Code of Civil Procedure section 94. (b) Check the box next to each interrogatory that you want the answering party to answer. Use care in choosing those interrogatories that are applicable to the case. (c) The interrogatories in section 16.0, Defendant's Contentions —Personal Injury, should not be used until the defendant has had a reasonable opportunity to conduct an investigation or discovery of plaintiff's injuries and damages. (d) Additional interrogatories may be attached. Sec. 3. Instructions to the Answering Party (a) In superior court actions, an answer or other ap- propriate response must be given to each interrogatory checked by the asking party. (b) As a general rule, within 30 days after you are served with these interrogatories, you must serve your responses on the asking party and serve copies of your responses on all other parties to the action who have appeared. See Code of Civil Procedure section 2030 for details. (c) Each answer must be as complete and straight- forward as the information reasonably available to you per - Form Approved by the Judicial Council of California FI-120 (Rev. July 1, 1987) mits. If an interrogatory cannot be answered completely, answer it to the extent possible. (d) If you do not have enough personal knowledge to fully answer an interrogatory, say so, but make a reasonable and good faith effort to get the information by asking other persons or organizations, unless the information is equally available to the asking party. (e) Whenever an interrogatory may be answered by re- ferring to a document, the document may be attached as as exhibit to the response and referred to in the response. If the document has more than one page, refer to the page and section where the answer to the interrogatory can be found. (f) Whenever an address and telephone number for the same person are requested in more than one interrogatory, you are required to furnish them in answering only the first interrogatory asking for that information. (g) Your answers to these interrogatories must be verified, dated, and signed. You may wish to use the follow- ing form at the end of your answer;: 1 declare under penalty of perjury under the laws of the State of California that the foregoing answers are true and correct. (DATE) (SIGNATURE) Sec. 4. Definitions Words in BOLDFACE CAPITALS in these interrogatories are defined as follows: (a) INCIDENT includes the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding. (b) YOU OR ANYONE ACTING ON YOUR BEHALF includes you, your agents, your employees, your insurance companies, their agents, their employees, your attorneys, your accountants, your investigators, and anyone else act- ing on your behalf. (Continued) Page 1 of 8 FORM INTERROGATORIES CCP 2030, 2033.5 (c) PERSON includes natuuperson, firm, association, organization, partnership, business, trust, corporation, or public entity. (d) DOCUMENT means a writing, as defined in Evidence Code section 250, and includes the original or a copy of handwriting, typewriting, printing, photostating, photo- graphing, and every other means of recording upon any tangible thing and form of communicating or representa- tion, including letters, words, pictures, sounds, or symbols, or combinations of them. (e) HEALTH CARE PROVIDER includes any PER- SON referred to in Code of Civil Procedure section 667.7(e)(3). (f) ADDRESS means the street address, including the city, state, and zip code. Sec. 5. Interrogatories The following interrogatories have been approved by the Judicial Council under section 2033.5 of the Code of Civil Procedure: CONTENTS 1.0 Identity of Persons Answering These Interrogatories 2.0 General Background Information - Individual 3.0 General Background Information - Business Entity 4.0 Insurance 5.0 (Reserved] 6.0 Physical, Mental, or Emotional Injuries 7.0 Property Damage 8.0 Loss of Income or Earning Capacity 9.0 Other Damages 10.0 Medical History 11.0 Other Claims and Previous Claims 12.0 Investigation - General 13.0 Investigation - Surveillance 14.0 Statutory or Regulatory Violations 15.0 Special or Affirmative Defenses 16.0 Defendant's Contentions - Personal Injury 17.0 Responses to Request for Admissions 18.0 (Reserved) 19.0 [Reserved] 20.0 How The Incident Occurred - Motor Vehicle 25.0 (Reserved] 30.0 (Reserved) 40.0. (Reserved] 50.0 Contract 60.0 (Reserved) 70.0 Unlawful Detainer (See separate form FI-128) 101.0 Economic Litigation (See separate form FI-129] 1.0 Identity of Persons Answering These Interrogatories ® 1.1 State the name, ADDRESS, telephone number, and relationship to you of each PERSON who prepared or assisted in the preparation of the responses to these interrogatories: (Do not identify anyone who simply typed or reproduced the responses.) FI-120 (Rev. Jury 1, 1987) 2.0 General Background Information - Individual 2.1 State: (a) your name: (b) every name you have used in the past (c) the dates you used each name E3 2.2 State the date and place of your birth 2.3 At the time of the INCIDENT, did you have a driver's license? If so, state: • (a) the state or other issuing entity; (b) the license number and type; (c) the date of issuance; (d) all restrictions. 2.4 At the time of the INCIDENT, did you have any other permit or license for the operation of a motor vehicle? If so, state: (a) the state or other issuing entity; (b) the license number and type; (c) the date of issuance; (d) all restrictions. 2.5 State: (a) your present residence ADDRESS; (b) your residence ADDRESSES for the last five years; (c) the dates you lived at each ADDRESS. (] 2.6 State: (a) the name, ADDRESS, and telephone number of your present employer or place of self-employment; (b) the name, ADDRESS, dates of employment, job title, and nature of work for each employer or self- employment you have had from five years before the INCIDENT until today. 2.7 State: (a) the name and ADDRESS of each school or other academic or vocational institution you have attended beginning with high school; (b) the dates you attended; (c) the highest grade level you have completed; (d) the degrees received. 2.8 Have you ever been convicted of a felony? If so, for each conviction state: (a) the city and state where you were convicted; (b) the date of conviction; (c) the offense; (d) the court and case number. 2.9 Can you speak English with ease? If not, what language and dialect do you normally use? I:71 2.10 Can you read and write English with ease? If not, what language and dialect do you normally use? 2.11 At the time of the INCIDENT were you acting as an agent or employee for any PERSON? If so, state: (a) The name, ADDRESS, and telephone number of that PERSON; (b) a description of your duties. 2.12 At the time of the INCIDENT did you or any other person have any physical, emotional, or mental disabil- ity or condition that may have contributed to the occur- rence of the INCIDENT? If so, for each person state: (a) the name, ADDRESS, and telephone number; (Continued) Page 2 of 8 (b) the nature of the disability or condition; (c) the manner in which the disability or condition con- tributed to the occurrence of the INCIDENT. Q2.13 Within 24 hours before the INCIDENT did you or any person involved in the INCIDENT use or take any of the following substances: alcoholic beverage, mari- juana, or other drug or medication of any kind (prescrip- tion or not)? If so, for each person state: (a) the name, ADDRESS, and telephone number; (b) the nature or description of each substance; (c) the quantity of each substance used or taken; (d) the date and time of day when each substance was used or taken; (e) the ADDRESS where each substance was used or taken; (f) the name, ADDRESS, and telephone number of each person who was present when each substance was used or taken; (g) the name, ADDRESS, and telephone number of any HEALTH CARE PROVIDER that prescribed or fur- nished the substance and the condition for which it was prescribed or furnished. 3.0 General Background Information — Business Entity Q 3.1 (a) (b) (c) (d) (e) Q 3.2 (a) (b) (c) (d) (e) =3.3 (a) (b) (c) (d) =3.4 (a) (b) (c) Are you a corporation? If so, state: the name stated in the current articles of in- corporation; all other names used by the corporation during the past ten years and the dates each was used; the date and place of incorporation; the ADDRESS of the principal place of business; whether you are qualified to do business in California. Are you a partnership? If so, state: the current partnership name; all other names used by the partnership during the past ten years and the dates each was used; whether you are a limited partnership and, if so, under the laws of what jurisdiction; the name and ADDRESS of each general partner; the ADDRESS of the principal place of business. Are you a joint venture? If so, state: the current joint venture name; all other names used by the joint venture during the past ten years and the dates each was used; the name and ADDRESS of each joint venturer; the ADDRESS of the principal place of business. Are you an unincorporated association? If so, state: the current unincorporated association name; all other names used by the unincorporated associa- tion during the past ten years and the dates each was used; the ADDRESS of the principal place of business. Q3.5 Have you done business under a fictitious name during the past ten years? If so, for each fictitious name state: (a) the name; (b) the dates each was used; (c) the state and county of each fictitious (d) the ADDRESS of the principal place of name filing; business. Q3.6 Within the past five years has any public entity registered or licensed your businesses? If so, for each license or registration: (a) identify the license or registration; (b) state the name of the public entity; (c) state the dates of issuance and expiration. 4.0 Insurance 4.1 At the time of the INCIDENT, was . there in effect any policy of insurance through which you were or might be insured in any manner (for example, primary, pro -rata, or excess liability coverage or medical expense coverage) for the damages, claims, or actions that have arisen out of the INCIDENT? If so, for each policy state: (a) the kind of coverage; (b) the name and ADDRESS of the insurance company; (c) the name, ADDRESS, and telephone number of each named insured; (d) the policy number (e) the limits of coverage for each type of coverage contained in the policy; (f) whether any reservation of rights or controversy or coverage dispute exists between you and the in- surance company; the name, ADDRESS, and telephone number of the custodian of the policy. (g) Q 4.2 Are you self -insured under any statute for the damages, claims, or actions that have arisen out of the INCIDENT? If so, specify the statute. 5.0 (Reserved) 6.0 Physical, Mental, or Emotional Injuries Q 6.1 Do you attribute any physical, mental, or emotional injuries to the INCIDENT? If your answer is -no," do not answer interrogatories 6.2 through 6.7. Q6.2 Identify each injury you attribute to the INCIDENT and the area of your body affected. Q 6.3 Do you still have any complaints that you attribute to the INCIDENT ? If so, for each complaint state: (a) a description; (b) whether the complaint is subsiding, remaining the same, or becoming worse; (c) the frequency and duration. Q 6.4 Did you receive any consultation or examination (except from expert witnesses covered by Code of Civil Procedure, li 2034) or treatment from a HEALTH CARE PROVIDER for any injury you attribute to the INCIDENT? If so, for each HEALTH CARE PROVIDER state: (a) the name, ADDRESS, and telephone number; (b) the type of consultation, examination, or treatment provided; FI-120 [Rev. July 1, 19871 (Continued) Page 3 of 8 (c) the dates you receivSonsultation, examination, or treatment; (d) the charges to date. =6.5 Have you taken any medication, prescribed or not, as a result of injuries that you attribute to the INCI— DENT? If so, for each medication state: (a) the name; (b) the PERSON who prescribed or furnished it; (c) the date prescribed or furnished; (d) the dates you began and stopped taking it; (e) the cost to date. Q6.6 Are there any other medical services not previously listed (for example, ambulance, nursing, prosthetics)? If so, for each service state: (a) the nature; (b) the date; (c) the cost; (d) the name, ADDRESS, and telephone number of each provider. C)6.7 Has any HEALTH CARE PROVIDER advised that you may require future or additional treatment for any injuries that you attribute to the INCIDENT? If so, for each injury state: (a) the name and ADDRESS of each HEALTH CARE PROVIDER; (b) the complaints for which the treatment was advised; (c) the nature, duration, and estimated cost of the treatment. 7.0 Property Damage 7.1 Do you attribute any loss of or damage to a vehicle or other property to the INCIDENT? If so, for each item of property: (a) describe the property; (b) describe the nature and location of the damage to the property; (c) state the amount of damage you are claiming for each item of property and how the amount was calculated; (d) if the property was sold, state the name, ADDRESS, and telephone number of the seller, the date of sale, and the sale price. = 7.2 Has a written estimate or evaluation been made for any item of property referred to in your answer to the preceding interrogatory? If so, for each estimate or evaluation state: (a) the name, ADDRESS, and telephone number of the PERSON who prepared it and the date prepared; (b) the name, ADDRESS, and telephone number of each PERSON who has a copy; (c) the amount of damage stated. 07.3 Has any item of property referred to in your answer to the interrogatory 7.1 been repaired? If so, for each item state: (a) the date repaired; (b) a description of the repair; (c) the repair cost; FI-120 [Rev. July 1, 19871 (d) th•me, ADDRESS, and PERSON who repaired it; (e) the name, ADDRESS, and PERSON who paid for the telephone number of the telephone number of the repair. 8.0 Loss of Income or Earning Capacity = 8.1 Do you attribute any loss of income or capacity to the INCIDENT? If your answer is not answer interrogatories 8.2 through 8.8. !] 8.2 State: (a) the nature of your work; (b) your job title at the time of the INCIDENT; (c) the date your employment began. = 8.3 State the last date before the INCIDENT that you worked for compensation. earning -no; do 08.4 State your monthly income at the time of the IN CIDENT and how the amount was calculated. !] 8.5 State the date you returned to work at each place of employment following the INCIDENT. I] 8.6 State the dates you did not work and for which you lost income. = 8.7 State the total income you have lost to date as a result of the INCIDENT and how the amount was calculated. 0 8.8 Will you lose income in the future as a result of the INCIDENT? If so, state: (a) the facts upon which you base this contention; (b) an estimate of the amount; (c) an estimate of how long you will be unable to work; (d) how the claim for future income is calculated. 9.0 Other Damages 9.1 Are there any other damages that you attribute to the INCIDENT? If so, for each item of damage state: (a) the nature; (b) the date it occurred; (c) the amount; (d) the name, ADDRESS, and telephone number of each PERSON to whom an obligation was incurred. = 9.2 Do any DOCUMENTS support the existence or amount of any item of damages claimed in interrogatory 9.1? if so, state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT. 10.0 Medical History 10.1 At any time before the INCIDENT did you have complaints or injuries that involved the same part of your body claimed to have been injured in the INCIDENT? If so, for each state: (a) a description; (b) the dates it began and ended; (c) the name, ADDRESS, and telephone number of each HEALTH CARE PROVIDER whom you con- sulted or who examined or treated you. (Continued) Page 4 of 8 = 10.2 List all physical, mental, and emotional disabilities you had immediately before the INCIDENT. (You may omit mental or emotional disabilities unless you attribute any mental or emotional injury to the INCIDENT.) C[ 10.3 At any time after the INCIDENT, did you sustain injuries of the kind for which you are now claiming damages. If so, for each incident state: (a) the date and the place it occurred; (b) the name, ADDRESS, and telephone number of any other PERSON involved; (c) the nature of any injuries you sustained; (d) the name, ADDRESS, and telephone number of each HEALTH CARE PROVIDER that you consulted or who examined or treated you; (e) the nature of the treatment and its duration. 11.0 Other Claims and Previous Claims 011.1 Except for this action, in the last ten years have you filed an action or made a written claim or demand for compensation for your personal injuries? If so, for each action, claim, or demand state: (a) the date, time, and place and location of the INCI- DENT (closest street ADDRESS or intersection); (b) the name, ADDRESS, and telephone number of each PERSON against whom the claim was made or action filed; (c) the court, names of the parties, and case number of any action filed; (d) the name, ADDRESS, and telephone number of any attorney representing you; whether the claim or action has been resolved or is pending. [3 11.2 In the last ten years have you made a written claim or demand for worker's compensation benefits? If so, for each claim or demand state: (a) the date, time, and place of the INCIDENT giving rise to the claim; (b) the name, ADDRESS, and telephone number of your employer at the time of the injury; (c) the name, ADDRESS, and telephone number of the worker's compensation insurer and the claim number; (d) the period of time during which you received worker's compensation benefits;_ (e) a description of the injury; (f) the name, ADDRESS, and telephone number of any HEALTH CARE PROVIDER that provided services; (g) the case number at the Worker's Compensation Ap- peals Board. (e) 12.0 Investigation - General Q 12.1 State the name, ADDRESS, and telephone number of each individual: (a) who witnessed the INCIDENT or the' events occur- ring immediately before or after the INCIDENT; • (b) who made any statement at the scene of the INCIDENT; (c) who heard any statements made about the INCI- DENT by any individual at the scene; FI-120 [Rev. July 1, 1987) (Continued) (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Pro- cedure, § 2034). p 12.2 Have YOU OR ANYONE ACTING ON YOUR BEHALF interviewed any individual concerning the IN- CIDENT? If so, for each individual state: (a) the name, ADDRESS, and telephone number of the individual interviewed; (b) the date of the interview; (c) the name, ADDRESS, and telephone number of the PERSON who conducted the interview. =12.3 Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded statement from any individual concerning the INCIDENT? If so, for each statement state: (a) the name, ADDRESS, and telephone number of the individual from whom the statement was obtained; (b) the name, ADDRESS, and telephone number of the individual who obtained the statement; (c) the date the statement was obtained; (d) the name, ADDRESS, and telephone number of each PERSON who has the - original statement or a copy. p 12.4 Do YOU OR ANYONE ACTING ON YOUR BEHALF know of any photographs, films, or videotapes depic- ting any place, object, - or individual concerning the IN- CIDENT or plaintiff's injuries? If so, state: (a) the number of photographs or feet of film or videotape; • (b) the places, objects, or persons photographed, film- ed, or videotaped; (c) thetaken; date the photographs, films, or videotapes were (d) the name, ADDRESS, and telephone number of the individual taking the photographs, films, or videotapes; (e) the name, ADDRESS, and telephone number of each PERSON who has the original or a copy. =12.5 Do YOU OR ANYONE ACTING ON YOUR BEHALF know of any diagram, reproduction, or model of any place or thing (except for items developed by expert witnesses covered by Code of Civil Procedure, § 2034) concerning the INCIDENT? If so, for each item state: (a) the type (i.e., diagram, reproduction, or model); (b) the subject matter; (c) the name, ADDRESS, and telephone number of each PERSON who has it. = 12.6 Was a report made by any PERSON concerning the INCIDENT? If so, state: (a) the name, title, identification number, and employer of the PERSON who made the report; (b) the date and type of report made; (c) the name, ADDRESS, and telephone number of the PERSON for whom the report was made. =12.7 Have YOU OR ANYONE ACTING ON YOUR BEHALF inspected the scene of the INCIDENT? If so, for each inspection state: Page 5 of 8 (a) the name, ADDRESS, *telephone number of the individual making the inspection (except for expert witnesses covered by Code of Civil Procedure, § 2034); (b) the date of the inspection. 13.0 Investigation - Surveillance =13.1 Have YOU OR ANYONE ACTING ON YOUR BEHALF conducted surveillance of any individual in- volved in the INCIDENT or any party to this action? If so, for each surveillance state: (a) the name, ADDRESS, and telephone number of the individual or party: (b) the time, date, and place of the surveillance; (c) the name, ADDRESS, and telephone number of the individual who conducted the surveillance. 013.2 Has a written report been prepared on the surveillance? If so, for each written report state: (a) the title; (b) the date; (c) the name, ADDRESS, and telephone number of the individual who prepared the report; (d) the name, ADDRESS, and telephone number of each PERSON who has the original or a copy. 14.0 Statutory or Regulatory Violations =14.1 Do YOU OR ANYONE ACTING ON YOUR BEHALF contend that any person involved in the INCIDENT violated any statute, ordinance, or regulation and that the violation was a legal (proximate) cause of the INCIDENT? If so, identify each PERSON and the statute, ordinance, or regulation. =14.2 Was any PERSON cited or charged with a viola- tion of any statute, ordinance, or regulation as a result of this INCIDENT? If so, for each PERSON state: (a) the name, ADDRESS, and telephone number of the PERSON; (b) the statute, ordinance, or regulation allegedly violated; (c) whether the PERSON entered a plea in response to the citation or charge and, if so, the plea entered; (d) the name and ADDRESS of the court or ad- ministrative agency, names of the parties, and case number. 15.0 Special or Affirmative Defenses ®15.1 Identify each denial of a material allegation and each special or affirmative defense in your pleadings and for each: (a) state all facts upon which you base the denial or special or affirmative defense; (b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; (c) identify all DOCUMENTS and other tangible things which support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each document. 16.0 DefeIP n nt's Contentions — Personal Injury (See Instruction 2(c)) 16.1 Do you contend that any PERSON, other than you or plaintiff, contributed to the occurrence of the INCI- DENT or the injuries or damages claimed by plaintiff? If so, for each PERSON: (a) state the name, ADDRESS, and telephone number of the person. (b) state all facts upon which you base your contention; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts; (d) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. = 16.2 Do you contend that plaintiff was not injured in the INCIDENT? If so: (a) state all facts upon which you base your contention; (b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts; (c) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. = 16.3 Do you contend that the injuries or the extent of the injuries claimed by plaintiff as disclosed in discovery proceedings thus far in this case were not caused by the INCIDENT? If so, for each injury: (a) identify it; (b) state all facts upon which you base your contention; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts; (d) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. 016.4 Do you contend that any of the services furnished by any HEALTH CARE PROVIDER claimed by plaintiff in discovery proceedings thus far in this case were not due to the INCIDENT? If so: (a) identify each service; (b) state all facts upon which you base your contention; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts; (d) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. 016.5 Do you contend that any of the costs of services furnished by any HEALTH CARE PROVIDER claimed as damages by plaintiff in discovery proceedings thus far in this case were unreasonable? If so: (a) identify each cost; FI-120 [Rev. July 1, 1987] (Continued) Page 6 of 8 (b) state all facts upon which you base our contention; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts; (d) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. _] 16.6 Do you contend that any part of the loss of earn- ing or income claimed by plaintiff in discovery pro- ceedings thus far in this case was unreasonable or was not caused by the INCIDENT? If so: (a) identify each part of the loss; (b) state all facts upon which you base your contention; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts; (d) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. =16.7 Do you contend that any of the property damage claimed by plaintiff in discovery proceedings thus far in this case was not caused by the INCIDENT? If SO: (a) identify each item of property damage; (b) state all facts upon which you base your contention; (c) state the names, ADDRESSES, and telephone numbers •of all PERSONS who have knowledge of the facts; (d) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. =16.8 Do you contend that any of the costs of repairing the property damage claimed by plaintiff in discovery proceedings thus far in this case were unreasonable? If SO: (a) identify each cost item; (b) state all facts upon which you base your contention; (c) state the names, ADDRESSES, and telephone numbers of alt PERSONS who have knowledge of the facts; (d) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. =16.9 Do YOU OR ANYONE ACTING ON YOUR BEHALF have any DOCUMENT (for example, insurance bureau index reports) concerning claims for personal injuries made before or after the INCIDENT by a plaintiff in this case? If so, for each plaintiff state: (a) the source of each DOCUMENT: (b) the date each claim arose; (c) the nature of each claim; (d) the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT. FI-120 (Rev. Juy 1, 1987) =16.10 Do YOU OR ANYONE ACTING ON YOUR BEHALF have any DOCUMENT concerning the past or present physical, mental, or emotional condition of any plaintiff in this case from a HEALTH CARE PROVIDER not previously identified (except for expert witnesses covered by Code of Civil Procedure, § 2034)? If so, for each plaintiff state: (a) the name, ADDRESS, and telephone number of each HEALTH CARE PROVIDER; (b) a description of each DOCUMENT; (c) the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT. 17.0 Responses to Request for Admissions 017.1 Is your response to each request for admission served with these interrogatories an unqualified admis- sion? If not, for each response that is not an unqualified admission: (a) state the number of the request; (b) state all facts upon which you base your response; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; (d) identify all DOCUMENTS and other tangible things that support your responses and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. 20.0 How the Incident Occurred - Motor Vehicle =j20.1 State the date, time, and place of the INCIDENT (closest street ADDRESS or intersection). =20.2 For each vehicle involved in the INCIDENT, state: (a) the year, make, model, and license number; (b) the name, ADDRESS, and telephone number of the driver; (c) the name, ADDRESS, and telephone number of each occupant other than the driver; (d) the name, ADDRESS, each registered owner; (e) the name, ADDRESS, each lessee; (f) the name, ADDRESS, and telephone number of and telephone number of and telephone number of each owner other than the registered owner or lien holder; (g) the name of each owner who gave permission or consent to the driver to operate the vehicle. =20.3 State the ADDRESS and location where your trip began, and the ADDRESS and location of your destination. =20.4 Describe the route that you followed from the beginning of your trip to the location of the INCIDENT, and state the location of each stop, other than routine traffic stops, during the trip leading up to the INCIDENT. =20.5 State the name of the street or roadway, the lane of travel, and the direction of travel of each vehicle in- volved in the INCIDENT for the 500 feet of travel before the INCIDENT. (Confirmed) Page 7 of 8 =20.6 Did the INCIDENT occuian intersection? If so, describe all traffic control devices, signals, or signs at the intersection. =20.7 Was there a traffic signal facing you at the time of the INCIDENT? If so, state: (a) your location when you first saw it; (b) the color; (c) the number of seconds it had been that color; (d) whether the color changed between the time you first saw it and the INCIDENT. =20.8 State how the INCIDENT occurred, giving the speed, direction, and location of each vehicle involved: (a) just before the INCIDENT; (b) at the time of the INCIDENT; (c) just after the INCIDENT. =20.9 Do you have information that a malfunction or defect in a vehicle caused the INCIDENT? If so: (a) identify the vehicle; (b) identify each malfunction or defect; (c) state the name, ADDRESS, and telephone number of each PERSON who is a witness to or has infor- mation about each malfunction or defect; (d) state the name, ADDRESS, and telephone number of each PERSON who has custody -of each defec- tive part. =20.10 Do you have information that any malfunction or defect in a vehicle contributed to the injuries sustained in the incident? If so: (a) identify the vehicle; (b) identify each malfunction or defect; .(c) state the name, ADDRESS, and telephone number of each PERSON who is a witness to or has infor- mation about each malfunction or defect; (d) state the name, ADDRESS, and telephone number of each PERSON who has custody of each defec- tive part. =20.11 State the name, ADDRESS, and telephone number of each owner and each PERSON who has had possession since the INCIDENT of each vehicle involv- ed in the INCIDENT. November 22, 1991 50.0 =50.1 For each agreement alleged in the pleadings: (a) identify all DOCUMENTS that are part of the agree- ment and for each state the name, ADDRESS, and telephone number of each PERSON who has the DOCUMENT; (b) state eachpart of the agreement not in writing, the name, ADDRESS, and telephone number of each PERSON agreeing to that provision, and the date that part of the agreement was made; (c) identify all DOCUMENTS that evidence each part of the agreement not in writing and for each state the name, ADDRESS, and telephone number of each PERSON who has the document; (d) identify all DOCUMENTS that are part of each modification to the agreement, and for each state the name, ADDRESS, and telephone number of each PERSON who has the DOCUMENT; (e) state each modification not in writing, the date, and the name, ADDRESS, and telephone number of each PERSON agreeing to the modification, and the date the modification was made; (f) identify all DOCUMENTS that evidence each modification of the agreement not in writing and for each state the name, ADDRESS, and telephone number of each PERSON who has the DOCUMENT. = 50.2 Was there a breach of any agreement alleged in the pleadings? If so, for each breach describe and give the date of every act or omission that you claim is the breach of the agreement. =50.3 Was performance of any agreement alleged in the pleadings excused? If so, identify each agreement ex- cused and state why performance was excused. = 50.4 Was any agreement alleged in the pleadings ter- minated by mutual agreement, release, accord and satisfaction, or novation? If so, identify each agreement terminated and state why it was terminated including dates. = 50.5 Is any agreement alleged in the pleading unen- forceable? If so, identify each unenforceable agreement and state why it is unenforceable. = 50.6 Is any agreement alleged in the pleading am- biguous? If so, identify each ambiguous agreement and state why it is ambiguous. SHEPPARD, MULLIN, RICHTER & HAMPTON ozJi By Richard L. Stone Attorney for Plaintiff FI-120 [Rev. July 1, 1987] (End) Page 8 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF PERSONAL SERVICE I, Barbara Clark, say that I am and was at all times herein mentioned, a citizen of the United States and a resident of the County of Los Angeles, over the age of eighteen, and not a party to the within action or proceeding; that my business address is 333 South Hope Street, 48th Floor, Los Angeles, California 90071. That on November 27, 1991, I served the within FORM INTERROGATORIES (to Defendant City of Rolling Hills), Set 1 on the parties in said action or proceeding by personally delivering a true copy thereof to the attorney of record for said party at the office address of said attorney, as follows: Person Served: Michael Jenkins RICHARDS, WATSON & GERSHON 333 S. Hope St., 38th F1. Los Angeles, California 90071 I declare under penalty of perjury that the foregoing is true and correct. Executed at Los Angeles, California on November 27, 1991 Barbara Clark -1- RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A PROFESSIONAL CORPORATION GLENN R. WATBON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS. W. ARGUE MARKL LAMKEN ARNOLD SIMON ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER ALLEN E. RENNET? STEVEN L DORSEY WILLIAM L STRAUSZ ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WILLIAM B. RUDELL DAVID L COHEN QUINN M. BARROW CAROL W. LYNCH COLEMAN J. WAL.SH. JR. JOHN A. BELCMER JEFFREY A. RABIN GREGORY M. KUNERT SCOTT WEIBLE THOMAS M. JIMBO MICHELE BEAL BAGNERIB AMANDA F. BUSSKIND ROBERT C. CECCON SAYRE WEAVER WILLIAM K KRAMER STEVEN H. KAUFMANN MARSHA JONES MOUTRIE GARY E. GANG WILLIAM E. MATBUMURA KEVIN G. ENNIB ROBIN D. HARRIS MICHAEL ESTRADA LAURENCE B. WIENER DAVID P. WAITE CHRISTI HOGIN STEVEN R. ORR DEBORAH R. HAKMAN SCOTT K. SHINTANI MICHAEL G. COLANTUONO JACK 8. SNOLKOFF B. TILDEN KIM DARYL T. TESHIMA RUBIN D. WEINER BASKIA T. ASAMURA ADAM F. STREISAND TAYLOR L FTTZMAURICE DAVID M. FLEIBHMAN KAYSER O. BUME STEVEN L HOLCOMB CRAIG A. STEELE ROBERT M. MAHLOWITZ KURTISS L GROSSMAN MICHELLE A. CURTIS DAWN R. ANDREWS June 30 Members of the City Council City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 1993 Iac,�VN1 VVV RICHARD RICHARDS (1916-1988) THIRTY-EIGHTH FLOOR 333 8O4 11-4 HOPE STREET LOS ANGELES, CALIFORNIA 90071-1469 (213) 626-8484 TELECOPIER (213) 626-0078 .JUL0 1 1993 • CITY OF ROLLING HILLS Vl�d- Re: Colyear v. City of Rolling Hills Dear Members of the City Council: OF COUNSEL RICHARD H. DINEL 0563831 OUR FILE NUMBER R6980-00001 I am pleased to inform you that yesterday morning Judge Hollingsworth, in the Torrance Superior Court denied the writ being sought by Mr. Colyear in connection with the sewer easement which was imposed on his lot line adjustment. From all indications, it would appear that Mr. Colyear intends to appeal. We are very pleased with this outcome and believe it unlikely that the Court of Appeal would reverse this decision. We will keep you informed of developments. As you know, Mr. Colyear has another suit pending against the City, challenging the appeal fee. At the upcoming status conference, we intend to renew the Council -approved settlement offer from last year, in order to attempt to dispose of the case. Given Mr. Colyear's attitude toward the City, I doubt he will agree to any settlement. RICHARDS, WATSON & GERSHON 10( Members of the City Council City of Rolling Hills June 30, 1993 Page 2 The writ action was ably handled by Steve Kaufmann, of this office. my yours, Jenkins MJ:alr cc: Craig Nealis, City Manager 0563831 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A PROFESSIONAL CORPORATION GLENN R. WATSON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARKL LAMKEN ARNOLD SIMON ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER ALLEN E. RENNETT STEVEN L DORSEY WILUAM L STRAUSZ ROBERT M. GOLDFRIED ANTHONY 8. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. STEPANICICH ROCHELLE BROWNE MICHAEL JENKINS WILUAM B. RUDELL DAVID L COHEN OUINN M. BARROW CAROL W. LYNCH COLEMAN J. WALSH, JR. JOHN A BELCHER JEFFREY A. RABIN GREGORY M. KUNERT SCOTT WEIBLE THOMAS M. JIMBO MICHELE BEAL BAGNERIS AMANDA F. SUSSKIND ROBERT C. CECCON SAYRE WEAVER WILLIAM K. KRAMER STEVEN H. KAUFMANN MARSHA JONES MOUTRIE WILLIAM E. MATSUMURA KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA LAURENCE S. WIENER DAVID P. WAITE CHRISTI HOGIN STEVEN R. ORR DEBORAH R. HAKMAN SCOTT K. SHINTANI MICHAEL G. COLANTUONO JACK S. SHOLKOFF B. TILDEN KIM DARYL T. TESHIMA RUBIN D. WEINER SASKIA T. ASAMURA ADAM F. STREISAND TAYLOR L FITZMAURICE DAVID M. FLEISHMAN KAYSER O. SUME STEVEN L HOLCOMB CRAIG A. STEELE ROBERT M. MAHLOWTTZ KURTISS L GROSSMAN MICHELLE A. CURTIS DAWN R. ANDREWS April 21 199 a Ms. Lola Ungar Principal Planner City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 Reference: Dear Lola: APR 22 1993 RICHARD RICHARDS (1916-1988) THIRTY-EIGHTH FLOOR 333 SOUTH HOPE STREET OS ANGELES, CAUFORNIA 90071-1469 (213) 628-8484 TELECOPIER (213) 626-0078 OF COUNSEL RICHARD H. DINEL 1681202 OUR FILE NUMBER CITY OF ROLLING HILLS R6980-00303 Water Efficient Landscape Ordinance. I have reviewed the latest draft of the City's proposed Water Efficient Landscape Ordinance (Ordinance No. 240). As you recall, this Ordinance was continued from the Planning Commission's last meeting because of Craig's concern about the wording of the paragraph regarding applicability of its requirements. As you know, the state model ordinance provides that the water efficient landscaping requirements apply to "developer installed landscaping" but not to "homeowner installed landscaping". We do not have to follow that requirement, and as currently drafted, we will only be requiring developer installed or homeowner installed landscaping to comply with these requirements if the Planning Commission deems it appropriate as part of a Site Plan Review Approval of a project. To clarify that intent, I recommend that Paragraph A of Section 17.27.020 be revised to read as follows: "A. APPLICABILITY 1. The provisions of this Section shall apply to: a. New or rehabilitated landscaping for institutions, parks, public recreational areas, and public facility common areas; and RICHARDS, WATSON & GERSHON Ms. Lola Ungar April 21, 1993 Page 2 b. New and rehabilitated landscaping for single- family residential projects if those projects are (i) subject to Site Plan Review under this title, and (ii) the Planning Commission or City Council requires compliance with this Section as a condition of that approval. 2. The provisions of this Section shall not apply to: a. New or rehabilitated landscaping for single- family projects that are not subject to Site Plan Review Approval or which are subject to Site Plan Review Approval but the Planning Commission or City Council does not require compliance with this Section as a condition of that approval; and b. Ecological restoration projects that do not require a permanent irrigation system. 3. The City Manager may grant exceptions to any of the design and improvement standards in this Section. Such exemptions may be granted if the City Manager finds the proposed design and improvement is in substantial compliance with the purpose and intent of this Section." If you feel that subpart 2 (a) is unnecessary because of the wording of subpart 1 (a), then it can be deleted. I repeated without change the broad wording in subparagraph 3 relating to the authority of the City Manager to grant exemptions. In addition, you may want to delete the last clause of subparagraph e (Soils Test) of part 2 (contents of landscape plan) of Paragraph C (Landscape Plan Required). That clause relates to the requirement of having to do a soils test if substantial amounts of soil are imported. I know that the City is concerned when these ordinances imply authorization for something that is not normally allowed. Therefore, you and Craig may want to delete the clause: "provided, however, a soils test shall be required if substantial amounts of soil are imported to the property." I would revise the third line of paragraph F (Bond) on page 5 to end the first sentence after the words building permit. I would then start a new sentence with: "The bond shall be retained with the City . . . ." RICHARDS, WATSON & GERSHON Ms. Lola Ungar April 21, 1993 Page 3 If you have any questions regarding these comments, please do not hesitate to contact me. Very truly yours, Kevin G. Ennis Assistant City Attorney cc: Craig Nealis, City Manager Michael Jenkins, City Attorney KGE:kge 1681202 21355280078-4 131.0377'.12_88rc4 2 I _ >F S; WAT$ON & 3 PSH ON MEMORANDUM Lola In a : . a. Enn 4 l 23, 1993 r 'iv' _: } - Con.di n 23 y'3 Ref_.qu1:ion 93-11 rAd 'ins of -de-sac bulb &hNI1 w':3 -1l be fi i , , i. tn.a i o.i of -r,_i%S.s:� � _ _ .. - �p.y +,'yam }T 5 e_4!. *i _,.:_ �-_l J �r? ��C.DJ4. irhiiK.L 1 s } l r at. 16 Pine wrFie Lans (Lot -i ? r.. 'lx b -: o ' y sr P br b ' 1 locate. on tl.vi ;r s" perty e ad;rt extension and " to th- x the(nonAtr. ne fy mow\! .' . ourrounal ti A of tha _, Tac w '1y ext.onsion p : -wt''y° constrI,Iction id, C, in 4n agreement ent .r This pr,.4 v ovdation and ��sg9a� t �S.d:ect V.:i}� terms ling and '-hi a tA r:eq - it ?-;, `dam°,. construct -Ac =i' a f ='_ed in _d'ha rPltL cant; -ales! owner of o, b n ; on thereof, b a'Se' lct oht m._ i; otd i of d estimate of the work to .jfjx d in Paractraph (a) of this th � _ „—truction of he improvements ! o y�� cfmditi,ony�/� by:the applicant owner i r r t �-" i ;At 16 Pine Tr A Lane , or by a hereo , e within a 1 aasofab e period of time but not. than s the data this Tentative Map is approved; one ear ��f: i � A,39M-OM 16812% SEN kV 4-23-93 _��' 2136200076 13103777266; RICHARDS, MAZSON & GE -Rai -ION MEMORANDUM Lola Ungar e'gaa April 23, 1993 Page 2 I6980-00303 1681204 yes= rty located -. .. i sting '"Mr tc`.oi on of the { yi t s o..�. please_ SENT BY; - • 4 -21-93 ; 5 02PM 2136260078-+ 1 13103"?7288« 2 AttNN R WATWIN 14061ATO. AIVIIP&T HAPPY L O116141ON DOUG W W. AADvt ammic AAIIOI0 w N EWAN L ADIJl1 • A O. PiIPIR R NITER ALLEN L ANNUM "mom 4. DORIIY MALAIAM L ITPAUss A1w?OMILL 1. ASOOTT TNMOTMYL N luALO IIOrtRI P. our met* AREOORV W. ETtPANKVOA AOGNt+.LE sI.OWNI DONNA irePep JOON. W▪ ILUAM L 06/CALL DAVID L O0NIN 041NN M. DARI.DVY WADI. W. LYNCH COLaAMN J. WNJN. JII. 00664 A. 1LGIiR JIMMY A, MAIM 0Rt00AY AL RTJNQI T *COTT YI111M: Th10MA$ M. J4MO0 1WOi1tLe 6IAL SACW6K8 MAMMA P.OUIIroNO /Acadia 0. 01000N OAYRQ WEAVER W ILIAM K KIWorA OMAN M.iNWPL WN AA I IIA J0 IA M0 / I W W$ -M E. MATT IALAA lavltV O. INNM RUM D. P4APIA* MIC:NAL eITAAOA LAUAIN0e3. WIENER DAVID P. WARS QE601WiA IMKAUW S001T K ItYNTANI MIONA .O.01KANTLOND JACK O. 4MOLICOPP O. TIL IN KM DAIIYL T. TENIIMA MANN b.witMell WIOA T. AaN11VPlA ADAM P. 3TIeeIIAeiD TAKOA L PITlMikUNbt DAVID M. RIJIIMMAN KAYW O. AMA ammo 0 A. IT nor 3 RO6IAT M. MAmLOWITI G1tLLa`A twang Ow" R MOMSI RICHARDS, WATSON & GERSHON ATT'ORNE'YS AT LAW A MIDP13661061AL 001MOIMT1CM April 21, 1993 Ms. Lola Ungar Principal Planner City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 Reference: Dear Lola: f g10KAPO ROHM= Th#RTY. 3 TM PLOOR 303 SOON MOPE STAEV f LASANOSLES. CALIFORNIA 90011.14111 164N$4 TT9A00PIQR (1ia) /1I-0011 OP 000041, RIONAPO M. 0000. 16=102 OUR AS NUMMI R6980-00303 1 have reviewed the latest draft of the City's proposed Water Efficient Landscape Ordinance (Ordinance No. 240). As you recall, this Ordinance was continued from the Planning Commission's last meeting because of Craig's concern about the wording of the paragraph regarding applicability of its requirements. As you know, the state model ordinance provides that the water efficient landscaping requirements apply to "developer installed landscaping" but not to "homeowner installed landscaping". We do not have to follow that requirement, and as currently drafted, we will only be requiring developer installed or homeowner installed landscaping to comply with these requirements if the Planning Commission deems it appropriate as part of a Site Plan Review Approval of a project. To clarify that intent, I recommend that Paragraph A of ,Section 17.27.020 be revised to read as follows: 11A. APPLICABILITY . 1. The provisions of this Section shall apply to: a. New or rehabilitated landscaping for institutions, parks, public recreational areas, and public facility common areas; and SENT BY. RICHAROS, WATSON & OERSHON 4-21-3 ; 5:02PM 2136260079-, 13103777288;« Ms. Lola Ungar April 21, 1993 Page 2 b. New and rehabilitated landscaping for single- family residential projects if those projects are (i) subject to Site Plan Review under this title, and (ii) the Planning Commission or City Council requires compliance with this Section as a condition of that approval. 2. The provisions of this Section shall not apply to: a. New or rehabilitated landscaping for single- family projects that are not subject to Site Plan Review Approval or which are subject to Site Plan Review Approval but the Planning Commission or City Council does not require compliance with this Section as a condition. of that approval; and b. Ecological restoration projects that do not require a permanent irrigation system. 3. The City Manager may grant exceptions to any of the design and improvement standards in this section. Such exemptions may be granted if the City Manager finds the proposed design and improvement is in substantial compliance with the purpose and intent of this Section." If you feel that subpart 2 (a) is unnecessary because of the wording of subpart 1 (a), then it can be deleted. I repeated without change the broad wording in subparagraph 3 relating to the authority of the City Manager to grant exemptions. In addition, you may want t delete the last clause of subparagraph e (Soils Test) of part 2 is of landscape plan) of Paragraph C (Landscape Plan Required). That clause relates to the requirement of having to do a soils test if substantial amounts of soil are imported. I know that the City is concerned when these ordinances imply authorization for something that is not normally allowed.; Therefore, you and Craig may want to delete the clause: "provided, however, a soils test shall be required if substantial amounts of soil are imported to the property." I would revise the third line of paragraph F (Bond) on Ni page 5 to end the first sentence after the words building permit. I would then start a new sentence with: "The bond shall be retained with the City . . • • SENT BY: ; 4-21-23 ; 5;03P&1 ; 2 1 6260076-+ 131037772.66;4. 4 • • RICHARD8, WATSON & QER8HON Ms. Lola Ungar April 21, 1993 Page 3 If you have any questions regarding these comments, please do not hesitate to contact me. Very truly yours, i0:1•014; r/ Kevin G. Ennis Assistant City Attorney cc: Craig Nealis, City Manager Michael Jenkins, City Attorney KGE:kge 1'$I202 • MANATT, PHELPS & PHILLIPia 11355 West Olympic Boulevard Los Angeles, California 90064 Telephone: (310) 312-4000 TIME IN: DATE: March 16, 1993 FROM: MARTIN E. STEERE CLIENT NUMBER: gee r 03e 7 '93 MAR 16 P3:15 FAX f: (310) 312-4224 Please deliver the following.. pages (which inclu s h4,cover sE6411V/ letter) to: y NAME: MS. LOLA T1N AR MAR 1 6 1993 FAX N#: (310) 377-728( EinftWRO CONFIRMATION I: (310)_277-1521 -LINO H IF YOU DO NOT RECEIVE ALL OF THE PAGES, PLEASE CALL (310) 312-4203 AS SOON AS POSSIBLE. THANK YOU. COMMENTS: ** FOR OPERATOR USE ONLY ** MANATT, PHELPS & PHILLIPS OPERATOR NAME: TIME TRANSMISSION COMPLETED: OPERATOR COMMENTS: a.m. p.m. THIS Mti1SAOE is WENDED ONLY FOR THE vsg OP TIM RJONU tIAL OR ENTITY TO WHIN IT IS ADDPEMBD, AHD MAY CONTAIN INFORMATION THAT IS pRIVII.8OED, CONFIDENTIAL AND SMUT FROM DISCLASVP. E UNDER APPL1CAELR LAW. IF THE READER OP TIM MPSSAOF >: NOT THR tstTE iDED RECI?IN . OR THE EMPLOYEE OR AGENT RESPONS aLY pOR DEL[YSALYO THR M.(P.ssAGE TO THE MtEtDED RECRIEHT, YOU ARE IffiRSEY NOTIFIED THAT ANY DISSEMINATION, DISTR3VTION OR COPYING OP THIS COMMUNICATION IS STRICTLY PROHIEITED. W YOU HAVB LECfi&VED THIS COplFdLNICATION LN P_WRO& PLEASE NOTIFY VS IMMEDIATELY EY TELEPHONE AND RETURN THE ORIONAL Mp,9SAGE TO US AT THE AI OVB ADDRESS VIA THE U. S. POSTAL SERVtCB. THANK YOU. FAX -5 1-93 Recycled & Recyclable Paper • MANATT, PHELPS & PHILLIPS A PAITMEAIDO NCL1i01MO PROffa110NA1 COAPORAT10N1 ATTORNEYS AT LAW MARTIN E. STEIN DIRECT DIAL 1410) 3124110 Y CSIlJE Ms. Lola Ungar Principal Planner City of Rolling Hills No. 2 Portuguese Bend Road Rolling Hills, California 90274 Re: Dear Ms. Ungar: 11355 WEST OLYMPIC BOULEVARD LOS ANGELES, CALIFORNIA 90064.1114 TELEPHONE 13101 3124000 FAX 1310) 3124224 March 16, 1993 p o1utiQn o.93-11 soldtj WASHINGTON. O.C. MICE 1200 NEW HAMPSHIRE AVE. M.W. WASH l N O TON. O.C. 20031.1111 TELEPHONE 1202) •134300 FAX {202) 4034304 I am enclosing a draft form of Agreement re Grant of Easement that I have prepared and propose be attached to the draft resolution. This document has not yet been signed by any of the parties, and I am awaiting comments from Dr. Cukingnan's attorney. However, I did want you to have this document in advance of the hearing tonight. If you have any questions regarding the enclosed, please do not hesitate to call. Very truly yours, MES:cb Enclosure Martin E. Steere Manatt, Phelps & Phillips . • AGREEMENT RE GRANT OF EASEMENT This Agreement re Grant of Easement is entered into as of the 16th day of March, 1993 by and among William Hassoldt and Judith Hassoldt (collectively, the "Hassoldts"), Ray Cukingnan and Bernadette Cukingnan (collectively, the "Cukingnans"), and Robert A. Smith and Paula Smith (collectively, the "Smiths"). A. The Hassoldts are the owners of that certain real property commonly known as 10 Pine Tree Lane, Rolling Hills, California and more particularly described on Bthibit A attached hereto (the "Hassoldt Property"). The Cukingnans are the owners of that certain real property commonly known as 16 Pine Tree Lane, Rolling Hills, California and more particularly described on Exhibit B attached hereto (the "Cukingnan Property"). The Smiths are the owners of that certain real property commonly known as - Pine Tree Lane, Rolling Hills, California and more particularly described on Exhibit_C attached hereto (the "Smith Property"). B. The Hassoldts desire to subdivide the Hassoldt Property into three lots, the Cukingnans desire to subdivide the Cukingnan Property into two lots and the Smiths desire to subdivide the Smith property into two lots. The City of Rolling Hills requires, as a condition to any one or all of such subdivisions, the construction of a cul-de-sac bulb near the northerly terminus of Pine Tree Lane. C. The Hassoldts have proposed to construct the required cul-de-sac bulb entirely on the Hassoldt Property. The Cukingnans and Smiths have proposed, as an alternative, an extension of Pine Tree Lane along the northerly edge of the Hassoldt Property and the southerly edge of the Culdngnan Property and a construction of a cul-de-sac bulb located entirely on the Cukingnan Property. In order to accomplish such alternate roadway extension and cul-de-sac bulb, it would be necessary for the Hassoldts to grant an easement across a portion of the Hassoldt Property for grading purposes. D. The Hassoldts are willing to grant an easement in order to enable the construction of the alternate roadway and cul-de-sac bulb subject to the terms and conditions set forth in this Agreement. • HASSOLDT-CI K1NONANiAGT.1 1 AL = NOW, THEREFORE, the parties agree as follows: 1. bees aration of Recitals. The foregoing recitals are incorporated into this Agreement in their entirety. 2. Conn of A lte_*n to Roadway And [`vl .-cu_ Promptly following execution of this Agreement, the Cukngnans shall exert their best efforts to obtain consents for the construction of the alternate roadway and cul-de-sac bulb from all governmental and quasi -governmental entities having jurisdiction over the same, including, without limitation, the City of Rolling Hills and the Rolling Hills Community Association. The Cukingnans shall bear all expenses in connection with the seeking and obtaining of such consent, and the Hassoldts shall be at no expense in connection with the same. Following receipt of such consents, and provided that the Hassoldts shall not have commenced grading for the construction of the original cul-de-sac bulb on the Hassoldts Property, the Cukingnans shall deposit with the Rolling Hills Community Association an amount of money sufficient to pay in full the cost of the roadway extension and alternate cul-de-sac bulb, and shall, promptly and with all due diligence, cause to have the alternate roadway and cul-de-sac bulb constructed in accordance with the terms of this Agreement and at the sole expense of the Cukingnans. 3. Brant of Easement. Provided that the Cukingnans shall have obtained all necessary consents for the construction of the alternate roadway and cul-de-sac bulb and shall have deposited the amount necessary to pay the full cost of construction of the same in accordance with the provisions of paragraph 2, above, and the same shall have occurred prior to the date on which grading shall commence for the construction of the cul-de-sac bulb on the Hassoldt property, the Hassoldts shall execute and cause to be recorded in the Official Records of Los Angeles County, California a Grant of Easement in the form attached hereto as Exhibit D. 4. & belay. The parties hereto acknowledge that the agreement of the Hassoldts to record the Grant of Easement in order to facilitate the construction of the alternate roadway and the cul-de-sac bulb shall not in any way delay or otherwise interfere with or increase the cost of the completion of the Hassoldt subdivision. In the event the • efforts of the Cukingnans to obtain consents for, and/or to cause construction of, the alternate roadway and cul-de-sac bulb do, in fact, delay, interfere or otherwise interfere with or increase the cost to the Hassoldts of the Hassoldt subdivision, the Hassoldts shall, immediately and without the necessity for further notice, be relieved of all obligations pursuant to this Agreement or otherwise with respect to the Grant of Easement. Further, in such event, the Cukingnans shall immediately reimburse the Hassoldts for any and all loss, cost or liability arising out of or relating to such delay or increase in cost. HASSOLDT CUXINoNAN,AOT.1 2 • S S. Caging jtestricdons. Notwithstanding any other provision to the contrary in this Agreement, the Cukingnans shall conduct -no grading on the Hassoldt property that shall, in any way, (a) damage existing mature trees on the Hassoldt Property, (b) undermine or in any way interfere with the lateral stability of the Hassoldt Property, and (c) interfere with or limit the extent to which that portion of the Hassoldt Property on which the grading is conducted may be developed, including, without limiting the foregoing, reduce the size and/or location of the building pad to be constructed on such portion of the Hassoldt Property, THE PARTIES HERETO ACKNOWLEDGE THAT THE LOSS SUFFERED BY THE HASSOLDTS IN THE EVENT OF THE DAMAGE OR DESTRUCTION OF ONE OR MORE TREES ON THE HASSOLDT PROPERTY OCCURRING AS A RESULT OF THE CONSTRUCTION, USE OR MAINTENANCE OF THE ROADWAY EXTENSION AND ALTERNATE CUL-DE-SAC BULB, INCLUDING, WITHOUT LIMITATION, THE GRADING OF THE HASSOLDT PROPERTY, WOULD BE DIFFICULT TO ASCERTAIN. THEREFORE, THE PARTIES AGREE THAT, IN THE EVENT ANY TREE ON THE HASSOLDT PROPERTY IS SO DAMAGED OR DESTROYED, THE CUKINGNANS SHALL PAY TO THE HASSOLDTS THE SUM OF $100,000 PER DAMAGED OR DESTROYED TREE, WHICH SUM THE PARTIES AGREE IS A REASONABLE ESTIMATE OF THE LOSS TO BE SUFFERED BY THE HASSOLDTS IN CONNECTION WITH SUCH DAMAGE OR DESTRUCTION. THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING PROVISION AND BY THEIR INITIALS BELOW ACKNOWLEDGE THEIR AGREEMENT WITH THE SAME. Hassoldts Cukingnans Smiths 6. Indemni ladon. The Cukingnans and the Smiths hereby indemnify hold the Hassoldts harmless from and against any and all loss, cost or liability arising from d or related to the construction, use and maintenance of the alternate roadway extension and the cul-de-sac bulb. Without limiting the foregoing, the Cukingnans and Smiths shall not cause or suffer any liens to be placed upon the Hassoldt Property in connection with the construction use and maintenance of the roadway extension and alternate cul-de-sac bulb, and, should any such lien be recorded, the Cukingnans and Smiths shall, immediately and without the necessity for notice, pay and/or cause the same to be removed of record, In the event the Hassoldts or any subsequent owner of the portion of the Hassoldt Property on which the roadway extension Is located shall become subject to a lawsuit, arbitration or other proceeding related to the construction, use, maintenance or existence of the roadway extension on the Hassoldt Property, the Cukingnans and Smiths shall cause the same to be defended by counsel of the Ilassoldts' choice and shall pay and/or discharge any judgement or other ruling rendered in connection with such proceeding. Further, without limiting the foregoing, the Cukingnans and Smiths shall pay any and all court costs, attorneys' fees and other expenses incurred by the Hassoldts by virtue of any claims made in connection with the construction, use, maintenance and/or existence of the roadway extension on the Hassoldt Property. xassor nr-cvxnvoNANAOr.1 3 Cenuiliudgnigua 7. R . The parties acknowledge that, in order to complete subdivision of their respective properties, certain improvements must be made to Pine Tree Lane from its juncture with Portuguese Bend Road to its northerly terminus. In the first instance, the Hassoldts intend to perform or cause to be performed such roadway improvements. However, should the Cukingnans and/or the Smiths be successful in their efforts to subdivide their respective with the recordation of the tentative tract m �e properties, each shall, concurrently reimburse the Hassoldts an amount equal toone-half of the sums to their rexpended properties,espective the Hassoldts in connection with such roadway improvement.. The Hassoldts shall, as reasonably requested from time to time by the Cukingnans and the Smiths, provide to the Cukingnans and the Smiths a summary of the sums expended in connection with such roadway improvements. 8. SeggesserundAzign This Agreement shall bind, and inure to the benefit of, the respective heirs, successors and assigns of each of the parties hereto. 9. AtIorIeys' Fees. In the event of any litigation or other judicial or arbitration proceeding involving the Agreement and concerning any this controversy or claim regarding � � this Agreement, the prevailing party shall be entitled to recover from the other party or parties all costs and expenses incurred in such proceeding, including all attorneys' fees. 10. Entire Agreement. This Agreement is intended by the parties as a final expression and a complete and exclusive statement of the entire agreement of the parties with respect to the subject matter hereof, and, as such, this Agreement supersedes all prior understandings and agreements, whether oral or in writing, among the parties respectin the subject matter of this Agreement. No modification of this g in writing signed by all parties hereto. Agreement will be effective unless 11. Tlme of the atria. 'Time shall be of the essence as to all dates and times of performance set forth in this Agreement. 12. EurthrLAdati. Each party agrees to execute such further documents and to take such further actions as may be necessary or desirable to effectuate the intents and purposes of this Agreement. 13. Coantmati. This Agreement may be executed in counterparts, of which when executed shall be an original and all of which together shall constitute one each and the same Agreement. HA9sOLDT CUKINONAN/AGT,1 4 • 14. C ruction_ Choice of Law. This Agreement shall be construed fairly and equally as to the parties hereto and without regard to which party drafted the same. All exhibits to which reference is made in this Agreement are deemed incorporated in this Agreement, whether or not actually attached. Section headings contained in this Agreement are for the purposes of reference and convenience only and shall not limit or otherwise affect the meaning hereof. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California. 15. Meamadunisf r . Following the execution of this Agreement by all parties hereto, any party to this Agreement may, without further notice to or consent of the other parties, cause to be recorded in the Official Records of Los Angeles County, California a memorandum of this Agreement in the form attached hereto as Exhibit E. IN WITNESS WHEREOF, this Agreement has been executed as of the date first above written. "Hassoldts": William Hassoldt Judith Hassoldt "Cukingnans" Ray Cukingnan Bernadette Cukingnan "Smiths" Robert A. Smith Paula Smith RASsoLDT cuKTNGNAN/ACYr.l 5 • GLENN R. WATSON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER ALLEN E. RENNET, - STEVEN L DORSEY WILLIAM L STRAUSZ ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WILLIAM B. RUDELL DAVID L COHEN QUINN M. BARROW CAROL W. LYNCH COLEMAN J. WALSH, JR. JOHN A. BELCHER JEFFREY A. RABIN GREGORY M. KUNERT SCOTT WEIBLE THOMAS M. JUMBO MICHELE BEAL BAGNERIS WIWAM K. KRAMER CURTIS L COLEMAN STEVEN H. KAUFMANN MARSHA JONES MOUTRIE AMANDA F. SUSSKIND WILLIAM E. MATSUMURA ROBERT C. CECCON PAMELA A. ALBERS SAYRE WEAVER .KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA LAURENCE 8. WIENER DAVID P. WAITE CHRIST HOGIN STEVEN R. ORR DEBORAH R. HAKMAN SCOTT K. SHINTANI MICHAEL G. COLANTUONO JACK S. SHOLKOFF B. TILDEN KIM DARYL T. TESHIMA S. ALAN RAY RUBIN D. WEINER SASKIA T. ASAMURA ADAM F. STREISAND TAYLOR L FITZMAURICE DAVID M. FLEISHMAN KAYSER O. SUME STEVEN L HOLCOMB CRAIG A. STEELE ROBERT M. MAHLOWITZ KURTISS L GROSSMAN MICHELLE A. CURTIS DAWN R. ANDREWS RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A PROFESSIONAL CORPORATION January 8, 1993 Mr. Craig Nealis City Manager City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 JAN 1 1 1993 CITY. OE ROLLING HILLS RICHARD RICHARDS By THIRTY-EIGHTH FLOOR 333 SOUTH HOPE STREET LOS ANGELES. CAUFORNIA 90071-1469 (213) 626-8484 TELECOPIER (213) 626-0078 Re: A.B. 3101: New Time Limits for Consideration of Building Permit Applications OF COUNSEL RICHARD H. DINEL 0563414 OUR FILE NUMBER R6980-00001 Dear Craig: I write to inform you of the provisions of A.B. 3101, which imposes new limits on the time during which the City may consider building permit applications. A.B. 3101 amends Section 17960.1 of the Health and Safety Code and adds a new Section 19837 of that Code. The new time limits will take effect on January 1, 1993. As you know, existing law provides thatwhen there is "excessive delay" in checking plans and specifications submitted as part of an application for a building permit, the City is required to employ an outside entity to perform those functions. Currently, the law declares that "excessive delay" has occurred when the City has either:. 1. Taken more than 50 days to complete the plan -checking process; or 2. Taken more than 60 days, including the time allotted to review of the initial plans, to complete checks of plans resubmitted and corrected at:the City's direction. The new bill has two principal impacts. First, it provides shorter time limits for the purposes of checking residential building permit applications. The new limits will be RICHARDS, WATSON & GERS• Mr. Craig Nealis January 8, 1993 Page 2 30 days for original plans and 45 days, inclusive, for corrected and resubmitted plans. In the case of building permits for projects which require discretionary review by planning staff, the Commission or Council, those time limits commence after CEQA compliance is completed, i.e., after either the certification of the project EIR, the adoption of a negative declaration for the project or the City's determination that the project is exempt from CEQA. In addition, the Legislature has imposed upon cities and counties similar plan -checking responsibilities and time limits with regard to non-residential, non -hotel or motel building permit applications. The new Health and Safety Code Section 19837 defines "excessive delay" in this context as taking more than 50 days of original consideration and more than 60 days, inclusive, to consider resubmitted or corrected plans. In sum, as of January 1, 1993, the City must observe these shorter limits to avoid being required to employ outside plan -checking entities. Please do not hesitate to call me if I can provide any further information on this subject. truly yours, • Michael Jen s MJ:alr 0563414 User No. 6250 RICHARDS, WATSON & GERSHON Attorneys at Law A Professional Corporation 333 South Hope Street, 38th Floor Los Angeles, CA 90071-1469 Switchboard: (213) 626-8484 Telecopier: (213) 626-0078 DATE: April 16, 1993 TO: Craig Nealis FIRM: City of Rolling Hills RECEIVING TELECOPY NO: (310) 377-7288 FROM: Michael G. Colantuono OUR FILE NO: R6980.00001 TOTAL PAGES (including this cover sheet): 3 (If you have difficulty receiving any pages, please telephone our services center at (213) 253-0420.) DOCUMENT(S): Draft Memo to City Council Regarding TDM Ordinance REMARKS: Please review the attached and let me know what you think. If you are content with it, please distribute it to the Council. Attention Fax Operator and Other Recipients This fax contain& privileged and confidential information intended only for the use of the intended recipient named above. If you are not the intended recipient, you are hereby notified that any copying of this fax or dissemination of it or its contents to anyone other than the intended recipient is strictly prohibited. If you have received this fax in error, please immediately notify us by telephone to arrange its return to us et our expense. Xerox Models 7020 7021. (compatible with most Group 2 & 3 telecopy machines) Time Sent: Operator: A. CON ! I D E N T I A,- RICHARDS, WATSON & GERSHON MEMORANDUM TO: Honorable Mayor and Members of the City Council FROM: Michael G. Colantuon DATL: April 16, 1993 SUBJECT: Adoption of a Transportation Demand Management Ordinance Michael Jenkins has asked me to briefly advise you of the consequences of refusing to adopt a Transportation Demand Management (TDM) ordinance. Government Code Sections 65088-65096.6 authorize a Congestion Management Agency in each of the state's urbanized counties to prepare an annual Congestion Management Plan (CMP). The Los Angeles County Metropolitan Transportation Agency (MTA) bears this responsibility for Los Angeles County. Section 65089.3(a) provides that the MTA must annually determine if the count and " compliance" y its 88 cities are "in with the various requirements of the CMP, including, "the adoption and implementation of a trip reduction and travel demand ordinance," Under Section 65089.4, if the MTA determines, after a noticed public hearing and a 90 -day opportunity to achieve compliance, that a local government is not complying with the CMP, the MTA must inform the State Controller. The Controller must then withhold that portion of the locality's gas tax revenues attributable to the passage of Proposition 111 in 1990,. or more than 60t of those revenues. The local government can recoup the funds by coming into compliance with°the CMP within 12 months. Otherwise, the funds are allocated to the MTA for capital improvement projects. As we understand that Rolling Hills receives essentially no gas tax revenues, non-compliance with the requirement to adopt a TDM ordinance may have no fiscal impact on the City. The City may, however, wish to avoid a public dispute with the MTA over this matter. Such a dispute could have a fiscal dimension if the City subsequently seeks discretionary (as opposed to entitlement) funds under programs controlled by the MTA, such as those adopted by Propositions A and C. We think the City has essentially three options: (1) Do nothing and allow the MTA to find the City out of compliance as described above. MGC:mgc R6980-00001 1911462 AEI CONFIDENTIAL THIS MATERIAL IS sUBJE.OT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIviLEGES. •DCTNFIDENTIALI RICHARDS, WATSON & GERSHON arm MEMORANDUM Honorable Mayor and Members of the City Council April 16, 1993 Page 2 (2) Adopt a TOM ordinance appropriate in light of the. city's homogeneously residential character and submit it to the MTA for review pursuant to the CMP. This will have two potential advantages. First, adopting an ordinance will demonstrate that the City is attempting to meet the goals of the statute in a manner appropriate'to its unique circumstances rather then flatly refusing to comply with the statute. Second, the MTA will not be able to find the City out of compliance with the CMP without first reviewing the City's ordinance. That review may enlighten the MTA as to the City's concerns. If the MTA finds that the City's ordinance does not comply with the CMP, it may find it necessary to defend the apparently senseless application of the model TOM ordinance to the City and it could reconsider its position as a result. (3) Work with MTA staff to identify other mutually acceptable means to satisfy the TOM requirement. Although we understand that City staff have attempted to pursue this option, a political approach to more senior officials may prove more fruitful. Essentially, some resolution acceptable to the MTA and the City should be achieved unless the City is willing to be found out of compliance with the CMP. If you have any questions about the advice stated here,. please feel free to contact me or Michael. cc: Craig Nealis Michael Jenkins MCC:mgc 86980-00001 1911462 i _ CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRJVII =caper SENT BY:Xerox Telecopier 7021 ; 7-10-92 ;10:43AM ; 010 "2136260078-, • 1.3103777288;4 2 QLiNN 11 WAT&ON RODENT A. &SV&RLY 11ARRY L OIIAmnQN DOuDLAS W. M1AU& MARK L LAMK&N ARNOLD EIMON SRLMN E ADL.SR OAROLD D. PIEPER PRIMA. PaNOTSR ALLAN E_ ASNNOTT iTSVEPi L COROEY WILLIAM L STRAui2 Pa6SERT M. AOLOPRIEO AWNIDNY 0. O WMW MITBNE /. AS60TT TIMOINYL. Nruf6L6 RODSRr P. OE MQTER CARIDORT w. STSRANIOIOH ROOnIL72 BROWNE MONALD STERN LCKAEL JIINKIN6 WILLIAM &. AUDDLL DAVID L OOR&N. AWNN M. BARROW CAROL W. LYNOP COLEMAN J. WAL$H. JR. JOIN & SILCNER .I PfRW A. MEIN ASCOTTTw7Y.2 Magill? TTIOMA6 M. JIMdO MICNEL! SEAL MANORS WILLIAM K KRAMSR CURTI& L °DU MAN MINIM N.KAufr4ANN MAMMA JONS& MOLITI I AMANDA P. &US&KIND WILLIAM i. MATiuMLM Kg/1W O.O*OaeN PAMELA A. MAIM SAYRE WEAYSR KEVIN A. INNiS ROSIN O MARRI& MICNAR E&TRADA (PRAT M.000AN LAURENCE A. W1IN6R GAVID P. WAR& C+tRIOT N00IN orrevaN R. OAR OSLSORA21 R NAKMAN &OOrr K. ONINTANI MiONAEL A. OOI.AN?UON0 JACK O, OFIOLt00PP S T1LOIN KIM DARYL T. T&&nIMA ONRIOTINA R. MELT M OIRARA. HU80R Q ALAN PAY RUEIN O. WIiNER &A&IOAT. A&AMURA ADAM P. *TAM:BANS TM.'I.OR L PITJIMANRIO& DAVID M. PL&tSnMAN K'AY&&R O. SUMS &T&VSN L. POLCOMS RICHARDS, WATSON & GERSHON ATTORNE`fa AT LAW A PROPE&M)ONAL CORPORATION Ms. Lola Ungar Principal Planner City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 July 10, 1992 Reference: Zonina Case 448 - Mitigation Subdivision Dear Lola: RICHARD RIOMARDa (1&1&.1SSS) 7HIRTY4W.MN PLOOR • 333 SOON HOPS &TREAT LOS ANGELES. OALIPORNIA 00071.144a (&13) &20-&4$4 T&LEIOOPI&R (213) 620-0070 OP COUNSEL RIONARD N. DINEL 168095$ OUR PILE NUMBER R6980-00303 Measures for As a follow-up to our conversations, set forth below is suggested language for the biological assessment and cultural resources mitigation measures for the above mentioned project: "3. A biological assessment for each lot in the subdivision shall be prepared by a City approved qualified biologist prior to commencement of project grading or construction. The biological assessment shall include a description of all significant plant and animal life on the lot along with recommendations for preservation, mitigation or relocation of such resources. The developer shall incur the cost for preparation of the biological assessment and shall comply with mitigation measures recommended in the biological assessment as approved by the City." "5 In the event that subsurface material of an archeological, paleontological or other cultural resource is encountered during project grading or development, all grading and construction shall cease in the immediate area, and the find shall be left untouched until a qualified professional archaeologist or paleontologist, whichever is appropriate, is contacted and called in to evaluate the find and makes edtAtdations as to disposition, mitigation or SENT BY:Xer ox T e f ecopier 7021 ; 7-10-92 :10:44;,v 2136260078-4 13103777286» 3 • • RICHARDS, WATSON & GERSHON July 10, 1992 Page 2 salvage. The developer shall incur the cost of such professional investigation. The developer shall comply with the mitigation measures recommended and approved by the City for the disposition, mitigation or salvage of such material." I hope that this language proves helpful to you as you finalize the mitigated negative declaration for this project. Very truly yours, Kevin G. Ennis Assistant City Attorney KGE:kge 16809S8 GLENN R. WATSON ROBERT G. BEVERLY HARRY L. GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER ALLEN E. SENNETT STEVEN L DORSEY WILLIAM L STRAUSZ ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WILLAM B. RUDEU. DAVID L COHEN T=RESA R. TRACY QUINN M. BARROW CAROL W. LYNCH COLEMAN J. WALSH. JR JOHN A. BELCHER JEFFREY A. RABIN GREGORY M. KUNERT SCOTT WEIBLE THOMAS M. JIMBO MICHELE BEAL BAGNERIS WILLIAM K KRAMER CURTIS L COLEMAN STEVEN H. KAUFMANN MARSHA JONES MOUTWE AMANDA F. SUSSKIND WILLIAM E. MATSUMURA ROBERT C. CECCON PAMELA A. ALBERS SAYRE WEAVER KEVIN G. ENNIS ROBIN D. HARRS MICHAEL ESTRADA EFRAT M. COGAN LAURENCE S. WIENER DAVID P. WARE CHRISTI HOGIN STEVEN R. ORR DEBORAH R ► AIOAAN SCOTT K. SHINTANI MICHAEL G. COLANTUONO JACK S. SHOLKOFF B. TLDEN KIM DARYL T. TESHIMA CHRISTINA R MELTZER BIRGIT A. HUBER S. ALAN RAY ROBIN D. WEINER SASKIA T. ASAMURA ADAM F. STREISAND TAYLOR L FR9MAURCE DAVID M. FLEISHMAN KAYSER O. SUME STEVEN L HOLCOMB RICHARDS. WATSON & GERSHO Lola Ungar Planning Director City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, CA 90274 ATTORNEYS AT LAW A PROFESEVONAL CORPORATION June 9, 1992 JUN .0 4.4. HARDS (1916-1988) art OF LKY;OgTH HOPE LOS ANGELES, CALJFORNIA 9Q47i=1489 �...r.�v!oa!"1/1S) 628.x84 TELECOPIER (213) 628-0078 OF COUNSEL RICHARD H. DINEL 1100320 OUR PILE NUMBER 1 980-00001 1 WFtITER'S DIRECT DIAL NUMBER kk 9 !t / Re: Permit Application Requirements (1991 Stats., ch. 1183) Dear Ms. Ungar: I am writing to alert you to a recent change in state law regarding the issuance of non-residential development permits,including building pe mits. Previously, the City's application form for a non-residential building was. required to ask the applicant to indicate whether the applicant or a future building occupant was subject to any of the following requirements regarding the use of hazardous or acutely hazardous material: 1) The requirement to submit a business plan and inventory form to the County pursuant to Health and Safety Code Section 25505. 2) The requirement to file an acutely hazardous materials registration form with the County pursuant to Health and Safety Code Section 25533. 3) The requirement to prepare and submit a risk management and prevention program (RMPP) pursuant to Health and Safety Code Section 25534. 4) The requirements for a permit for construction or modification from the South Coast Air Quality Management District (SCAQMD). RICHARDS, WATSON & GERSHON Ungar June 9, 1992 Page 2 In addition to these requirements, the City must now require permit applicants to certify whether or not the proposed project will handle) acutely hazardous material in excess of stated thresholds,) or will generate hazardous air emissions, as determined by the State Air Resources Board or the SCAQMD. Government Code Section 65850.2(a)(2). If a project requires a development. permit other than a building permit, the City is now required to include in its application for such a development permit a place for the applicant to indicate whether the project is subject to the requirements listed above. Government Code Section 65850.2(a). The City was previously prohibited from issuing a final. certificate of occupancy unless the applicant had met or was meeting the applicable Health and Safety Code requirements. The City also could not issue a final certificate of occupancy unless the applicant had met the requirements for a.permit from the SCAQMD or had provided proof from the District that the permit requirements did not apply to the project. Under the new statute, the City is prohibited from issuing a final certificate of occupancy, or its substantial equivalent, unless the County verifies that the applicant has met, oris meeting, the applicable Health and Safety Code requirements. Government Code Section 65850.2(c). If the applicant certifies that acutely hazardous material will be handled in a quantity exceeding the stated thresholds, the City may not approve a permit application until the applicant obtains from the County a notice of requirement to comply with, or determination of exemption from,the requirement to prepare and submit an RMPP. In addition, the City may not find an application "complete" until such a notice or determination is obtained. Government Code Section 65850.2(b). As you know, the time limits for the approval or disapproval of J "Handle" is defined to mean "use, generate, process, produce, package, treat, store, emit, discharge, or dispose of a hazardous material in any fashion" and includes "the use or potential for use of a quantity of hazardous material by the connection of any marine vessel, tank vehicle, tank car, or container to a system or process for any purpose other than the immediate transfer to or from an approved atmospheric tank or approved portable tank." Health and Safety Code Sections 25501(i), 25501.3. J These thresholds are listed in 40 Code of Federal Regulations § 355, Appendix A, a copy of which is enclosed. RICHARDS, WATSON & GERSHOI. Lola Ungar June 9, 1992 Page 3 an application under the Permit Streamlining Act do not begin to run until an application is found (or deemed) to be complete. The County's RMPP notice must indicate if any of the acutely hazardous. material to be handled at the site would create a risk of an accident that could threaten schools, residential areas, health care facilities, or day care facilities. If the County identifies such a risk, no permit shall be issued for 90 days or until the County has verified that the requirement for an RMPP is being substantially met, whichever comes first._ If the County does not identify such a risk, the City may issue a permit when all other permit conditions have been met. Ineithercase, the City may not issue a certificate of occupancy prior to submittal by the applicant to the County of an RMPP. Government Code Section 65850.2(b). As before, the City must consider the recommendations of the County and SCAQMD in deciding whether, and under what conditions, to allow construction. Government Code Section 65850.2(d). The City retains authority to adopt a schedule of fees for applications in order to recover the costs of carrying out the above requirements. Government Code Section 65850.2(f). It will be necessary to amend each of the City's development apltcatons, including its bui i permit application, to comply with this new statute. Please call me or Michael if you have any, questions about how to do so. In addition, you may wish to contact us in the event a building or planning application is filed which involves hazardous materials. As this letter suggests, regulation of such uses is complex, and our advice may be helpful to you. Very truly yours, Rubin Weiner RDW:amr Enclosure cc: Michael Jenkins, Esq. 1100320 2 The City may also require the applicant to submit a certification from the SCAQMD that the applicant has disclosed information regarding air contaminants required by the SCAQMD pursuant to Health and Safety Code Section 42303. The statute does not specifically require the City to condition issuance of a certificate of occupancy upon submittal of such a certification, however. *355.50 Ing the information indicated in para- graph (WO) to the 911 operator, or in the absence of a 911 emergency tele- phone number, to the operator. For purposes of this paragraph, a trans- portation -related release means a re- lease during transportation, or storage Incident to transportation if the stored substance is moving under active ship- ping papers and has not reached the ulUmete consignee. (Approved Ly the Office of Management and Budget under control numbers 2060- 0044 and 2060-00931 162 PR 13305, Apr. 22, 1007. as amended at 64 FR 22643, May 24, 1949: 65 PR 30195, ary 24, m ei 356.60 PenslUes, (a) Civil penalties. Any person who falls to comply with the requirements of 1355.40 shall be subject to civil pen- altles of up to $25,000 for each viola- tlon in accordance with section 325(b)(l) of the Act. 40 CFR Ch. 1 (7-1-91 Edition) (b) Civil penalties for continuin0 violations. Any person who fails to comply with the requirements of 1355.40 shall be subject to civil penal- ties of up to 825.000 for each day during which the violation continues, In accordance with section 325(b)(2) of the Act.. In the case of a second or sub- sequent violation. any such person may be subject to civil penalties of up to $75,000 for each day the violation continues. In accordance with section 325(bX2) of the Act. (c) Criminal penalties. Any person who knowingly and willfully fails to provide notice In accordance with 1355.40 shall, upon conviction, be fined not more than $25,000 or impris- oned for not more than two (2) years, or both (or. in the case of a second or subsequent conviction, shall be fined not more than $50,000 or Imprisoned for not more than five (5) years, or both) in accordance with section 325(bX4) of the Act, APPENDIX A TO PART 355 -THE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIES Ihereb•9od ()reed CAS Na Clhr•h0d nb•1• Nam Rporl•1M 61.10.0' {pounds) TN•Mald Promo 4/44107/ (pounds) • 76.14-5 Means Cyrn11ydnos 10 1,000 1762-30-3 Ao bte TN'-•.c•Asf la • 1 1,000/10000 107-024 Aaaan 1 600 79 -es -I Acs140402o AaiIOIMB. 0.1 5.000 1000/10000 107-1}I a I 100 10,000 AD/MOM/16i 614-294 6, 11 100 AAperlr9•....... _...._ .-. 11146-3 •.1 '. . 1,000 116-06.3 Atic• 6.......__.........._.._.._ c 100/10000 306-00-3 NAin __• d 500/10,000 107-195 AM Alcohol. 100 - 1,000. 107-11-6 A•ytr•ns • 500 30561-73-• Aun•.1u. Aho ply b 100 500 64-12.8 Munopl.nn a a '500/10000 76.634 Mlilon ... • 500 3734-97-2 MNOn QWsle...._......_ • low 10.000 7694-41-7 Morass „. 1 100 600 30042-6 Arph.1••in• .. • • 1,000 •2-53-3 Mans 0.1 5.000 1,000 29-05-I A/W.•, 2.4A-Tr•.IIy4 • 500 770-70-3 Ansl•ci1y PwI s sd, • • 500 1307-640 Mlwgtln A c. • 1,000/10000 66.55✓ AMU .___„__..._...» 100 600/ 10,000 1303-36.2 Ammo p.I•arad•.___._ d 100/10.000 1327-53-3 Amnou.e coda ao 100/10.000 1754-34-1 Manaus •ICI1lrhde d 500 7164.43-I A,.m. .. . ,- • 100 1542-714 Aam,pho.-ES, 4 _ • 100/10,000 16.600 M1phm#1•bgl 10/10,000 es-er-3 Omni CNords d 6,000 600 80 -Is -6 Ossnos rr, 3{Ti tmoM41• • 500 100-144 ar1..• . 1.1011o.•a.,LK/ltrs • - 600/10.000 352 Environmental Protection Agency Pt. 355,. App. A APPENDIX A TO PART 355 -THE LIST OF EXTREMELY HAZARDOUS,�,� St/BSI/ACES AND THEIR THRESHOLD PLANNING QUAN111IES-CO(111nU6d 140406441 010•11 CAS No 96-05-5 3615-21-2 98-07-7 100-44-7 140-26-4 16271-41-7 534-074 404446-9 10294-34-5 7(137-07-2 353-42.4 29772-56-7 7728-55-8 1306-19-0 2223-93-0 7775-44-1 •001-35-2 56-25-7 51-63-2 24415-73-8 1583.08-2 75-15-0 7.6-18-4 57-74-e 470-00 77.2-60-5 24934-91-8 •9491-5 79-11-6 107-07-3 627-11-2 e7-86-3 542 9-1 107-30-2 3501-35-9 1962-47-4 21923-23-9 10025-73-7 92207-78-5 102,0.44-1 84 -•s -e 58-72-4 5636.29-3 95-46-7 535-69-7 4]70-30-3 123-73-9 506-68-3 506-78-S 2934-26-2 115-14-9 96-61-9 109-91-9 11702-41-9 .1955-45-3 pis -66.9 10311 J49 16247-45-7 111-44-4 149.74-6 92-73-7 141441-2 Chemical name 6.nnimearw .c Acid 8ru7mdatoN, 4,5•DicNoro'2.(TIAhmwm•Ihs1)...... Bauou,cNo/w . . . 8•nryI Cygnets .. ..,...., &cyclol2 2 111teplan••2 Cabonb,la, 5•CNao•6- II(1M•1hylam.noIC000 MIO■0Nn.no)., II. II alplw, 2.8-.1•, 4• alpha, 5 alpha. 6E11 8..(CNrom.lhyl) Simone e,lo•can.I. .. ... Scion Tnche/mo• . . , . .. Sown Tritium/1s scion Tnluond. Compound WIN . . .... M.u1y1 EON h.ry... fkomikkalons .. ..... .. . .. 8mn.n. C•om,um o.id• .. . . .. .......... .. ... . . ..___.... Caam..m Slwab .. . . Calcium arsenals . . . . . .. Crwhrdn .. ... .. . C•mwal CNciid.. . _ .. .. .... .... ... .. ..... ... . . .............. Crbwnic Aced. Mary!-, 011(2,4•Dmteury4l, 3•Dnl.oNn-2• 711MaUbylsns)Anrd)- Caton Dw.6,a• ...... ....... . .... . ..... ..... CNbrda» Chlod.nnnlos . ... . ._. ... ....... CNcin. .. CNamKnd- CNo,maqusl CNono• CNawlnrrol .. . .. . GMo,o. hy1 CNaobam•I• CNo,olam CNaom.myl .10w CNo,onwlnM n.•8ry4.e.• . . . CNoropMc.an. . . .. CNcio.Von - .. ... .. . . Cdo.s.op os CNOm.0 Gnor M. . . . . . .. .. . .. . Caoah, 112,2'•11.2•Ethanwinnb. (N,•ion.•1hyl.al•nq)8,•(6Fbloro- Pm,.nob101N2.1.N,N',O.0 Colct.c.w .. . . . .. Cosa/whoa . .. . ... .. . . .. . ... .... .. C',wnate•ayl ..... .. . .. .. ... ...... . . . . _. Grimm. • . Cs atonal/1,110o . ... .. Coolo ualdahyd•. IEI• ... . . .. ... ... . . Cya.pan aroma* .... . . _.. .. Cysnopld. .... Cyr.mc FM.oms'........... . Cycloh...nas Cycioha.ylamna . D•c•boranki4) .. .... Damian. S•M.,g4...... 0,•Idci _.. . . .. ... Gborar .. . . . . . 0.cNro.mp.•mw . . . .. ..... ... ... .. . . .... . .. ... . . ..... DrE1•rom•aMPhrMNaw . .. . . . .. ...... ... .. .. D.cr.onw . ...... . . ... . .. .. • .. D000100 00 .. ... 353 Note. 0▪ ,9 d d •, h • • • • • • • • I • c.• 0 d • • • • d • • •. h • • ant dill s.d • • •. II • • •. h ., h a • • • • • •, 1 • • • • • a • A.porlabl• TM•.hoa p,.anry' plan/sag quantity (pounds) .. . (pouna•) 10 100 t0 100 10 10 10 10 1,000 1 100 100 1.000 10/10,000 500/10,000 500 500 500 500/10,000 10/10,000 500/10,000 500 600 1,000 100/114000 500 100/10,000 1,000/10,000 500/10.000 500/10.000 100/10.000 500/10,000 100/10,000 10/10,000 10,000 500 1,000 500 100 500 100/10,000 100/10.400 500 1,000 10,000 100 100 100/10,(00 500/10.(00 500 1/10,(00 100/10(00 10/10,0130 10/10,000 100/10,000 500/10.000 1.000/10.000 100/10,000 1,000 1,000 500/10.000 1,000/ 10,000 1,000• 100 100/10.000 10,000 500/10,000 500 500 100/ 10,000 100 10,000 1.000 1,000 100 Pt. 3SS, App. A 40 CR Ch. 1 (7-1-91 Edition) APPENDIX A TO PART 355 -THE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIES-COntMN10d IApyWa•c•1 Otdsrl CAS No. Chr.nl n.•0, Now Vrr1rp'• Wounds! 1464-63-6 •14-46-3 *043-54-2 Onpogadm• - p•dgt CPi . as •, h • 10 o oho am (sII* .ew>•1. GUM 71434 -6 2236-07 dun...... E•nr Q • 300.3046-6 116-36-1 Du o� ».. Masks' • I. A 60-01-6 Dtnn•to•M • 262•-03-0 0•/1•0451 • • 10 1 77-76.1 Omar* .rM•M 0 100 71-711.6 OwnnylorJoorO•••r1• 1.11 1 57-14-7 Dr•••ry•tybaaw•. .0 10 45-/06 Draml~hroplairmlemane • 1 644.04-4 D•h•Wn . • 1 634-S2-1 Orilmamol ._ 10 664S-7 1.30-07-1 Onos•b Drtotrb ' 1,000 75-34-3 _ Dos•oron ,»,_ _.... S o 6206 162-16 Opl•cinon. .,.. Opla•pha.w0a1 _._..... OL1YtIMly6-.»..,._...._......_...._. 100 .......................« 1116-04-4 OwIM010n.................«..«. _-.,,__....,._..._..«.._ 614-73-0 Oldram In• 1.010•...._.._ • 451-63.7 Ot•sob•••1 100 316-42-7 Em•.u, OhydradikaMi. . 114.11 116.20-7 E. osm i,._..._.._. ..-..._.»..._ - 6Wo••on.._.._...,».._, 317004-3 • _...»..._,.........._,«..«.».. E. .,...»_, ....,.....» ...__».. t...._,_... 72-204 10606 1104-04-6 E1PM.1.•I •.1 160 10-144 Er$oo•ks.o1 • 1.20.7114 5-0 E"°n""' T•04000 ElhonsmdlorM CM.ldo 3431601•-...._._.._ ... ..._...._«......._._,....... . • • 1014107-1 Ehrml 1.2-0310•.►• A0• • 0_ • • 6.3-11-1 E•ron............ ____ ..........«_«_._....... .».._-.--.._.. ..._ 10 1115.66-4 Etlopr•pina 13001-0 371-034 •••d 44411 • •� •••"•••••_ • c h 1 1 1 16-11-0 107-143 161-601 Etrylrn mods Ellryh o rn: n••n Etrywrwrr 11.1 41 • 10 5,0000 52-60{ E•ly4• ocyrn5 • !7x1441-6 F.wtpto• - • 112-144 F.yo•mn ...., • 116.602 F.wM0•r.L 0 h 4301-602 Hummel • • 7762-41-4 Fluorine . It 10 50.16-/ 144-40-0 Flu.ommlina0•..„. . Fb.••0a•c Am/ I • 100 366-064 11-314 Fluorcmosis4 F•orrourmI CI•orY• c,• .544-22-0 Poeoba .. • • /0-000 F.w.Oatryd• 01 100 107-1/-4 F.re•w• yd. Cyanohyd w I. h 23422-63-• Foml•wWs►lpdr•1/6.t4a •,N 2640434 Formo•son _..- . • 17102-67-7 F.mp•r•n.e • 31646-72-3 Fos•sw.n . • 3675-16-1 Fr4.s••aol• • 110-00• Futon O•l.., hWtlonj• 100 13460-•0.3 • Nwo•.ocyclop.tltl.n Hs.•n• y0WrWy M, N. OL.00- nry1. 77-47-4 4136-11-4 •h 1 0 $ 302-01-2 0016•r• • 1 14404 Hybocy.rc Acid • 10 757-01-0 Hydrogen Monde 61a•.Ig6 •,1 6,000 7514-3►,3 ►lydroo r1 x#6.100 100 354 TN•Mtold Montano quanlay 500 600 100/10,000 100/10,000 1,000 10/10,000 500 500/10,000 600 600 600 1,000 10/10,000 600/10,000 10/105X40 100/10,000 600/10,060 600 10/10000 100 600 600/10,060 100/10,000 1/10000 10/10500 600/10,000 500/10,000 1,000 100/10,000 1,000/10,000 600/10500 600 1,000 1,000 1,000 500 10 1,000 10000 600 10000 10/10000 600 600 100/10,000 600 100/10,000 10/10500 10 600/10000 600 S00 1,000 600/10,000 100 100/10,000 500 100/10000 600 600/10000 100 500 1,000 100 600 100 Environmental Protection Agency Pt. 355, App. A APPENDIX A TO PART 355 -THE LIST OF EXTREMELY HAZARDOUS SUBS' ANCES AND THEIR THRESHOLD PLANNING DUANTI1IES-Continued 1Mp•tab•Ytal 3.0•/) CAS No. Chemical n.rl. Now Roportable Th••Itold quanay pl•n.np quintal/ Wounds) (040404-1) 7722.24-1 Hydogrt Pro d• 1Conc .52%) . ...... .. _. 7763-07-5 Hyaop.t S.MrW .... .... .. _ 7763-06-4 Hydlopen 5ulA1•.......... ... .. . . .. 123-31-0 Hydopwtons... ... ....... ... .. 13463-40-0 Iron. P•nl•c•/bon 4' 267-16-6 I600•n:•n 75-02-0 I•obulyrawM 102-36-3 laocync Acid, 3,4•DrcNorop.nyl Eater 455-73-0 1.0-46/1 .. 65-/1-4 Hothrorph•1• .. . . . 4006-7I-/ Nopnaon• DNocyan.• . ... 106-23-4 Isopropyl GdololonMM 116-36-0 1.sploplynl•Mrylpin•10Iy1 Gm•Nylcalb•m•M 76-51-7 LaclonIrM........ 2160060-6 L•plopho•.... 611-25-3 Lamed* S•-05-6 Lrwrr. .. . . 7600-67.6 Lnlrrn Hydride. ... .. . 100-77-3 M•lorwrwM. . . ... . . . . 1210013-3 Marpsn•a•, Tnurbonyt Mathylcyclopenladmrryl 51-76-2 M.cNot•tllantin 660-10-7 Mpin•Iolsn . .... . .,.. 150027-7 Mercuric Adele 1457-5-7 Mercuric Crawl* 3110053-2 Mrcuc 0.0. .. 10176-65-• M•IMar•+1 Wce4N..... ...... 700-63-0 Mrh•aybc AMyrds 120-66-7 M•OI•cryb/i05. .. •20-46.7 M••Isaybyl Chords ... 30514-10-7 M•Slaaybyboy51y11a0ganal• 10265-624 M•thanrdopnoa 651-26-• Msthans IIIonyl Fluade . . 550-37-0 M.0alml on 2032-65-7 04••.0(65 15162-77-6 MWgmyl . . .. 161-36-2 M.111Ory0Nlsrc c Amide • 1063-7 M.•tyl 2Cnloroaaylats..... 7413-5 Methyl Brand. .. . .... . 71-22-1 Methyl CNaolaman 60-34-4 Methyl Hydrstrn . .. 62443-9 Methyl IsOCyanal• 556-01-6 M.• $ NOO.oCysnan.... 74-03-1 Methyl M.cyMan . .. .... 3136-23-7 6MMy1 Ptw•aplon 676-67-1 Meth* Phosphoric DCNaae 656-04-0 Methyl Throcy.n.n 70-04-4 602-344 75-76-6 1120-41-6 7116-34-7 315-11-4 50-01-7 0023-22-4 176314-4 605-00-2 13113-30-3 64-11-6 65-30-5 7447-37-2 10102-43-0 06-05-3 1122-60-7 10102-44-0 62-76-1 111-42-4 Methyl yl Vrryl Kaorn ....,. M•thyNnrci c DCyn.M•... M.NyIYKhloro•/.n Mrdcrb . .. . ... Mirecifththl MMac•lWN .. Maroaolopho• .. . .. ....,. Muecrnol. MWWd 645 Nchr carbonyl . Nc0lrt. •idle*. 14MG Aad P4MG Orals FarobrU.n N.oCyclohMsan• Fa•O0r1 Orono. F/Mo.odnl.•ryNn.m .. .... Nrbamd. 355 •, I • • • •, h • b, • • • • c.•,N 0 b. • 0,.h c. • • • • • • • N • •. N • • • • • 1 d. N b.• • b. • • • 4- • d • 100 1,000 1,000 10 100 1 1 1.000 1,000 10 10 1,000 10 1,000 10 100 100 1,000 10 1,000 10 10 1,000 10 500 500/ 10,000 100 100/10,000 1.000 500/10,000 100/10,000 100 100 1,000 500 1,000 500/10,000 10 1.000/10,000 100 500/10,000 100 10 600 600/10.000 500/10,000 500/10,000 1,000 500 500 100' 100 100/ 10,0(0 1,000 500/10.000 500/10.000 500/10,0(0 500/10,000 500 1,000 500 500 S00 S60 500 500 100 10,000 10 600/10,000 S00 /00/10000 500 600/10.000 500/10.000 10/10.000 600/10,000 SOO 1 100 100/10,000 1,000 100 10.000 500 100 1,000 100/10500 Pt. 355, App. A 40 CFR Ch. 1 (7-1-91 Edition) APPENDIX A TO PART 355 -THE LIST Of EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING OUANTITIES--COIUiOUOO lAlphobeecal Order) CAS Pb. Chews•) mere Rolm Repor40N mainety• 004454.1 ThW oId planning cow (pounds) 06�#0 Q� 'l5 Compile (MN -02-1.71 - • C. • 1 10/10C I 100/10C 83135-22-0 O.•my1.. _.. • 1 100/10. 76-71-7 Omer.. 3, 10• 1 • 600 2457-071 O.'0siIos n •, h - 1 600 10026-16•� Osons. • 1 100 1610-42-1 Pressed 1 • I 10/10C 2074-50-2 Prequel M••nrr6N• • 1 10/10,0 56-06-2 Prsseerr CA 10 100 26•-00-0 Psuas°o-MU61M C 100 100/10C 12002-034 Parr Green d 1 600/10,0 16124-22-7 Psnl•bpny . • I 500 1 2670-26-6 Penumec urine • 1 100/10,0 76-21-0 P•rece•c Aar?. • 1 600 604-43-11 100 600 106.54-2 Phenol 1,000 600/10. 4416-•64 54-001 Phenol. 2,2•.ThroOr(4Chlbro.LW6y4), Phenol, S(1 Phs ourane, • 100/10, 06-304 11110-20-41 • h 600/10,0 10,10'Oa * Phenyl OlWros,56 1616-1 Phon hpbYry Hydr0d4o de • 1,000/ 10, 62-36-4 Phen7bm o1f7 Awakes 100 500/10,0 2010-16-0 P1rny,r ssn• S. N 100/10. 103 6-1 P11•ruyl•eolrsl6 10• 100/10, 206.02-2 Philter 10 10 4104-14-7 Pno5.0.•s • 1 100/10, 047.02-4 71.44-/ Phodol•n • 10 1 100/10. 732-114 Moores • 10/10, 13111-214 Phosphsadon 7603-/1-2 Ph0•ptry 100 600 1703-13-I Phosphsn5sbC Awl. MWry4, O•E6h1 044-CUe Wro)PIwM) • 600 Ear. 60762464 Phoap.ono, C A016, WM*, S -12-1160146x., 4s.lylyVlrno)Em64 • 100 OEnp EsW 2506-367 PMsptrw•ro1C Aa•, UsS* 4-, Oi4-14 O•PNsa 4 EON • 600 323413-6 Phosphoric Aot O•s O 1 HbIMMM•01 Phone Eery • 500 2517-604 wnwnaonsac Mat O.OM.m 4-$4244Mry61uol Eny1 EM r c, ., a 600 7723-144 POoephons b, h 100 10025.67-3 Phosphorus Onyc*5ads 0 1,000 500 10036-131 P1lo1plonm P•msf/6s16s b, • 500 1314-66-3 Phosphorus Penland*.... b, • 10 771612-2 Phosphorus TrosIds 6s 1,000 1,000 67.474 Physoea erns - • . 100/10.0 17-4-7 PNpossylsre. 11464406 0:1) • 100/10,0 134114 Praolonrl • 600110.0 110-N-0 /*pews.. Prsulo44m14 • 1,000 2360541-1 • 10124-60-2 0 500/10,0 151-601 0 10 100 Pokers Sera C16 sd, 106114 b 1 500 3631-374 Rom•trb 0 0.h 1 600/10,0 10606-7 Prepares' Mosses • • 1 10 67-67-6 , • 600 107-111 Propr*Is Pr•prre••s. 3Ol 10 600 641.74-7 1,000 1,000 ,*. Roplop.s on., 4 -Awns. 70.666 •. e 1 100/10,0 10041-6 Ropy, C eolotoru Rops%n Ores • 1 600 161•-6 I 100 10.000 s ►ropyWrrnl•. 71-661 d 1 10,000 22761114 Proem's* • 1 100/10,0 136-00-0 Peen•'... c c 5.000 1,000/10,0 140-76-1 Pynbr. 2•MW1y41M•0$ • I 600 604-244 Preens. 4.Anrlo h h 1.000 - 500/10.0 1124-33-0 PynAr4. 44•ru, 16346 • 1 600/10,0 136611-21-I Pywsnd • •, h 1 100/10.0 • 000 00 000 000 000 000 00 Goo 00 000 000 000 000 000 00 356 Environmentol Protection Agency Pt. 355, App. A APPENDIX A TO PART 355 -THE LIST Of EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING OUANTITIES-COOUOuOG IAprwrw Odsl CAS No. t�l•.ucs& n.m. Now 11 l .„rbio (pounds) 7.167-16-1 SakOm• • 1 107-44-6 Senn •, h 1 7153.00.4 7751-23-3 Sears, Aad.. . u Srsrn OrycNd o, .. . • • 10 I 563.41-7 Suns• t.zd• Nydrochlora•'... 3037-72-7 Seen.14-A^1r Mm Nae6wry•6ry4 • • , 10.31-10-2 Sedum M••n•4 ... . .. . . .. 0 0 1,000 7754-465 Swum rare d d 1 26626-22-6 Sedum Aar% (Na1N:111.......... 0 0 9,000 12445-2 Sod.,. gr41 C•Co • . .... .. • • I 143-31-6 62-741 Sodsrn Cysrw• IN.ICNII . ... 0 10 13410-01-0 nu So n FWO•t•144..._. . .... .. m Socu Seisms' • • 10 1 10102-150 10102-20-2 Sods" Sol•nl•.. . ... . .. . . au So n Tediums . ... .. ... . ...... .... .. h h 100 1 600-66-• 57-24-1 W S n•n•, Apbrylnph•nyl..... .. . •, 0 1 60-41-3 Slrychn e. .,.. ... c c 10 3506-24-5 SYyGrr4 •J44 - • • 10 SuMa4p.... 100 3566-51-/ &Maude, 3Cfrm0prdpyl 00)1• Sulfur OrouW. • 1 744600-5 • 1713-00-0 Sum• Ts•M+aW • • 1 1446-11-6 7664-63-6 Shcu Tolosa, Sus /WO d b b, • I 1,000 77111 Tabu) C C. •, h 1 13411440-5 -6 7763 0-4 1'Arun, T••unl w (00000 645 • s •. k 1. 1 107-463 13011-766 IEPP - Tort/o• • •, h 10 1 75-00-2 Twmievem ) c, d 10 507.4-6 Term/yon. - C. • I 15-74-1 T•rm snmshy5e•d C. •, 1 1 506-14-6 T•r. on..uw 10 10031-661 Th.s.rn 6.11414 h 100 6531.731 Thera• Croons' c, h 100 1701-12-0 2757-164 Tlrsour CNrd• Ham Hamm Melons% c, 0 c, e, h 100 t 744616.6 Th•5our 6.1414 100 2231-57-4 Thocr0.210•.. . . . ... . • 1 16156-11-4 ihla•non 100 267-67-2 Thorium .. . ... T luaphslol 100 10654-5 100 . . ..... ............. ......... 16161 u 1hOssrs r0atla• . 100 5344-62-1 Thour•a 12CNaoplrtyp. 100 614-751 Rearm, 12454 O pls'oy0• • 1 7550-45-0 As w T aum T •chwrar . . ., • 1 55444-6 Toluene 2A.Drsogens4 . . . . 100 61-067 blurs' 2.6-Du•ocys4% . . . . .. . .. .... . .. Trs4-1,4•I 100 110-574 • 1031.471 • leol7-47-6 urtaoa . .. • • 75-02-6 TrrJra0•cs7 CNond• .. • • 115-21-5 TnclrarosuNise•n• . .. .. .. .. . ...... •, 11 321-66-0 IncNrones' . .... . .. . . • •, A 5613-6 Tna4oroprryhrW4 . . . . . . . . . •, h 1561-264 Tn0ioo(CNorom. ,,l)Ses... • • 1713746-6 TrICNr11MunkraprnyllSdans ... . .... .. .. . . . . • 650-30.1 Tn•Ihorys,len• . . .. .... . .. .. • . ... .. . .. . • • 75-77-4 oI T .MM W .. lcnwro n• . . . • • • • • • 1124-11-3 Trrrrrlybprop.n• P$w.phl• e, 11 1066-461 Trrn.dlyln peed• .. . .. .... . ... • 63654-7 TrprnyM CNo,d. . .. .. ... ...... . .... .. ...... . ... .. .... .. • 655.77-1 Trr(2GMor0.OMWnru .. .... . . .. .. .... . . • •, h 3001-56-6 VaMrnrycn .. .. ... _ .. . . . ... ..... t. • 1314-62-1 Vsrorrn P5040.4. . . . . . . ... .. . . .. ... .. ..... . ... ..... .. ... 1.000 106-06.4 Wry' Ace44 Monomer . . .. .... ... ..... . . .... .., d t 5.000 357 Th•soM Monrong eey (pounds) 500/10,000 10 1.000/10.000 500 1.000/10000 1,000 1,000/10,000 300/10.000 500 100/10,000 100 10/10.000 100/10,000 100/10,000 500/10.000 500/10,000 100/10,000 100/10,000 600 500 500 100 100 1.000 10 500/10,000 100 100 100 100 100 100 600 100/10.000 100/10.000 100/10,000 100/10,000 100/10,000 1.000/10.000 100/10.000 600 500 100/10,000 100/10,000 500/10,000 100 500 100 500 500/10,000 500 500 600 500 100 500 500 1,000 100/10,000 600/10.000 500/10,000 100 1,000/10000 100/10,000 1.000 f Pt. 35.1, App.' 40 CFR 011.1 (7-1-91 Edition) APPENDIX A TO PART 355 -THE LIST Of EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIES-CORW111ed IAp11•b•1o04 Order/ CAS /I6 Cnw Romulus od name Noise Smoke Thom®Id p•mp v1ry 5141-3 126-06-• 26347-13-6 10270 54 .4 1314 -7 Wotan Work® modswm *Aisne D ahkeld• 290' .... 4.4 - MmY1'S1(11MM11'1e11111oi . M • • b 100 100 1 . I 100 600/10,000 100/10.000 100/10,000 100/10000 500 Zinc 'O . 51.1n•o'y a •m•I RO C dnwlol.�Fraay man •danr•mf ••• 40 CPR TOW 302.4 cheseacal Mem b TTNe M dole a MOW W gomoil M TM TPO MI 0110A plena Ns TPO is b 110,000 pound* la e The arcuated TPO clamped Mier Isehrma meow as Moat® In Po Isdr•cd appal doat mwmL 5mO6mr4 amen soem•on limossod I Indcasse OM Po RO m m Alsol N crape abm Ma nee oat of poONd carcinogenicity end/a miter lodmiq le • SI•aaay rpal•tle aw55Y kw M pour..I•palsppy�posss /a6•clion un10r wei4 ldsoo''ySAARRAssect 304(a)(2�)u�sd 1 New chamois Mad Mawr* rot penquomom M wens, a 102 o6M pemop a N • NM*nMnsWnp act® Newsy TPO besud on nm a m►a•euaed I0 p dam I TPO •'55.50 N •1 c•kulMed gems ate One not Chimp doe N I•dnlcsl rss4 55 N proposed we. TM TPO wr 0106110 10/161160110•11 AN 10 Woman errorI Lwow* Menu oa tiered dteneaOS angneial• a n do noi "tea mildly -75-71• Bo b.ebecausea llqr NO productionproductionvoe On wens ono recognized dmSminiC•b`1. (62 PR 13306. Apr. 22. 1907. 53 PR 16321, 16412. Apr. 28. 1087: 62 FR 46013-46074, Dec. 17. 1087: 53 PR 6676, Feb. 25. 161111; 64 PR 43106. Oct. 30, 1080; 66 PR 63083. Dec. 37. 1900: 55 PR 6548, Feb. 16. 18001 APPENDIX B TO PART 355 -THE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIES (CAS Numbs, Onkel CAS No. Comics+ nom Now Wolr 1 penning (wow (Da=ds) 0 10-00-0 OIOsnot od,wm Comps 04NN42-147).._...... FawWeMtids _......._-.,.». .................. • 1 10/10,000 50-074 Wbmyt•, C XI t 0 500 60-144 Erpoc•klacl d 1 10 000/10,000 61-214 FW'asacd G• 1 1.000/10,000 I 61-76-2 • s 1 600/10.000 5143-2 MWdOrsdanee _,,,.-. md Cmrb•d odmd• c. • I 10 64-114 Nkomo • S I 100/10,000 54424 A. s,05n a 100 600 66„614 bate'• • t 600/10,000 .55-36-7 CadanlM c 100 100 11-35-2 Ps, uon • 1 100/10,000 CA 10 100 16-72-4 57-14-7 Cq•rmspinca..................».»...» OwM'M.6•ale._..-...... 10 100/10,000 57-144 d 10 1,000 .... -...... -_....... - 11-474 f5yolmYa _ O 10 100/10,000 57-674 5744-7 Phesoelegoen• a PI esy. ... - • 100/10,000 600 17-744 Physosigmee , Stlo7bla (1:1) Qdadea • 100/10,000 5/1-211-411 1.000 5m-55-•" . 1010,0.1.0 L • 600/1 0,000 ha'ry0mydnarmallyerdsapm a 1,000/ 10,000 f646-1 • 1,000/10.000 IICI- 10 500 10.431-3 $S entwe •fie a 10 100/10,000 50414 DswMmb Maio 10 500/10,000 V4� �mwaay . A I 100 6.000 500/10,000 1.000 358 Environmental Protection Agency Pt. 355, App. d APPENDIX B TO PART 355 -THE LIST Of EXTREMELY HAZARDOUS SUB,;TANCES AND THEIR THRESHOLD PLANNING QUANTITIES -Continued (CAS Nunbe, 010«1 CAS •10. C1temr•ca'ann• Nam thiportette 41-7=141 62-73-7 DmcNavo• .. 10 02-144 Sodun Fluoro•o•ub . .. 10 62-76-6 /MmwoumWlYWrene. . _ .... . .. d,h 10 04-00-0 Phenol, 3-11•M•11see1 p1)' M•Oglw,o•m•1• • 1 04464 Coldoans • •, h 1 06-30.6 N.wWw wM•a.... .. ... .. . ,. • 100 1641-9 Cycloneinure......................._.. . . . . • • 1 07.56-3 Chtelolam 0 0.1 10 7045-1 Pwpaphemaa, 4•Amno-........ . . . .. • •, 0 I 71434 CN •1 C C, • 1 73-204 Endo .. .. / 7443-0 MedO)A bromide I 1,000 74-00-0 Hydrocyanic Acid 10 14-03-1 Ms514 Meupuen 1 100 75-16-0 Carbon Dash® I 100 75-214 EYrylwa Ovid• 01 10 7544-6 Phosgene. I I 10 15-664 Peopyls'aenms d 1 76-60-0 Psoppan• Dods Taunanyr.ed I 100 16-74-1 c 76-77-4 • I 76.76.1 Onanyldidraawn• • •, h 1 75-704 Mwrynrudorown• .... •, h 1 75-0-5 Aosson• CysnOhyrYn 10 71-024 Tnc$aoeosoayl Cheo'd• ► ssstlYaocyclop•n • 1 11-41-4 4 17-16-1 0 100 77-75-1 Ondr/1 SuNsa n 0 0 1 77414 Tabun c, •, h 1 71-00-2 T•WWIyd•W c c, 0 10 16-34-2 Qa•Nvon • 70-63.6 Mom • • 71-71-7 Os•tara y , 3.3.0 Daamadpl);.. . .. • 71-02-0 Isoou $saw4• a. h 75-54-4 M0504 Vrryl Xeane • 70-67-1 Laclolvud• ... .. . ... • 71-00-1 Aaylsnmds... . .... ... ................... . .. ......_. .. 0 0.1 5.000 70-114 Creceoa bc Aced u • 15-15-6 Throuencarband•. 100 70-21-0 Pse•c•bC Acd .. • 76-22-1 Way Clraotomaa 0 0.5 1,000 00.63-1 wino 2-a iromnaM• • • 5141-2 Walan 100 02464 l hson ns .. • 06-50-0 Arnpho••LI.6ry1 56.0-4 ANTU .. . . Mine 00 101-05-1 1645-7 Dino.®,4'bTermne6ryF . .... .......'......... ..... . • 1,000 111-0t1-7 Toluene $41-Ossoryaate 100 56-04-7 Geed. o .. ...... .... . ...... . . . . . . . .............. ... .... . . .. . Belremwsoouc Aced d d 1.000 11-05-6 • 1 ... .,. ...... 6•Iuancnorids - .. Tlrcl4oroplwrylNan• 55-07-7 0 10 16.13-6 a, h I . ... ..:em... . . . B nms. 3{Tedu.o,0adnyl)• 15-166 ' eUeaw • I 0nusl Cllads 554t•3 d 6.000 55 -Po 3 Nerobsnr•n• ... .. . .. . .. . . - 1 1.000 01,5-1 Omw6M9�nls^�me . . .. • I 100-u-, B•nasns, I.1Cdio onmatt y4•Ndro. .... . • I 100-444 B•ru:yl Chbrd•....... .. 0 0 100 102-3 3 1 Iso c Acd. 3.4•Qcfo/ophe N'ei Es .... ....... .. .. .. �... . . . . . gw • I 10346-S Ph•nylllvarea . .... .............. . .. . .. . . .. 100 105.04 EprtdooarfO n .. . . .. . . . . .. ... . . .. .... .. . , . .. 61 100 105-55-7 P,opapyl Steered. .... ...... :... . - . • 1 107-024 Auden . ... ....... . ... .. 1 107-07-3 CNaoa*meal ................. ..... .. ..... ... ....... . .. .. .... ...... . .. • 1 107-11-0 AMemwa . .... ....... .. • 1 359 TN•shold Minnow (pounds) 1,000 10/10,000 1.000 600/ 10.000 10/10,000 100/10,000 100/10,000 10,000 100/10,000 100/10.000 500/10,000 1,000 100 500 10,000 1,000 10 10,000 10,000 100 1.000 500 500 1,000 600 100 500 600 10 100 500 500 600 1,000 10 1,000 1.000/10,0W 100/10,0X1 100/10,0X1... 500 500 500 500/10,000 10/10.000 10/10.000 500/10,000' 500 100/10.000 100 1,000/10.000 10/10,0W 500 500 500 500 10.000 10/10,01)1 500/10.000 500 500/10.000 100/10.000 1.000 10 600 500 500 • GLENN R. WATSON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARK L. LAMKEN ARNOLD SIMON ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER ALLEN E. RENNETT STEVEN L DORSEY WILLIAM L STRAUSZ ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WILLIAM B. RUDELL DAVID L COHEN - TERESA R. TRACY GUINN M. BARROW CAROL W. LYNCH COLEMAN J. WALSH. JR. JOHN A. BELCHER JEFFREY A. RABIN GREGORY KLINERT SCOTT WEIBLE THOMAS M. JIMBO MICHELE BEAL BAGNERIS WILLIAM K. KRAMER CURTS L COLEMAN STEVEN H. KAUFMANN MARSHA JONES MOUTRIE AMANDA F. SUSSKIND WILLIAM E. MATSUMURA ROBERT C. CECCON PAMELA A. ALBERS SAYRE WEAVER KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA EFRAT M. COGAN LAURENCE S. WIENER DAVID P. WAITE STEVEN R. ORR DEBORAH R. HAKMAN SCOTT K. SHINTANI MICHAEL G. COLANTUONO JACKS. SHOLKOFF B. TILDEN KIM DARYL T. TESHIMA CHRISTINA R. MELTZER BIRGIT A. HUBER S. ALAN RAY RUBIN D. WEINER SASKIA T. ASAMURA ADAM F. STREISAND TAYLOR L FITZMAURICE DAVID M. FLEISHMAN KAYSER O. SUME STEVEN L HOLCOMB RICHARDS, WATSON & GERSHO Lola Ungar Planning Director City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, CA 90274 ATTORNEYS AT LAW A PROFESSIONAL CORPORATION June 9, 1992 Re: Permit Application Requirements Dear Ms. Ungar: JU N iRg4 is?PHARDS - (1916-1988) CITY :OF. 333 OL1i4IC-ntril71.�SR HOPE STREET LOS ANGELES, CALIFORNIA 9Q{ 1='1469 By,„,...... 1r23sdTr26-8484 TELECOPIER (213) 626-0078 OF COUNSEL RICHARD H. DINEL 1100320 OUR FILE NUMBER R6980-00001 WRITERS DIRECT DIAL NUMBER (1991 Stats., ch. 1183) I am writing to alert you to a recent change in state law. regarding the issuance of non-residential development permits, including building permits. Previously, the City's application form for a non-residential building was required to ask the applicant to indicate whether the applicant or a future building occupant was subject to any of the following requirements regarding the use of hazardous or acutely hazardous material: 1)• The requirement to -submit a business plan and inventory form to the County pursuant to Health and Safety Code Section 25505. 2) The requirement to file an acutely hazardous materials registration form with the County pursuant to Health and Safety Code Section 25533. 3) The requirement to prepare and submit a risk management and prevention program (RMPP) pursuant to Health and Safety Code Section 25534. 4) The requirements for a permit for construction or modification from the South Coast Air Quality Management District (SCAQMD). RICHARDS, WATSON & GERSHON Lola Ungar June 9, 1992 Page 2 In addition to these requirements, the City must now require permit applicants to certify whether or not the proposed project will handle -1/ acutely hazardous material in excess of stated thresholds,21 or will generate hazardous air emissions, as determined by the State Air Resources Board or the SCAQMD. Government Code Section 65850.2(a)(2). If a project requires a development permit other than a building permit, the City is now required to include in its application for such a development permit a place for the applicant to indicate whether the project is subject to the requirements listed above. Government Code Section 65850.2(a). The City was previously prohibited from issuing a final certificate of occupancy unless the applicant had met or was meeting the applicable Health and Safety Code requirements. The City also could not issue a final certificate of occupancy unless the applicant had met the requirements for a permit from the SCAQMD or had provided proof from the District that the permit requirements did not apply to the project. Under the new statute, the City is prohibited from issuing a final certificate of occupancy, orits substantial equivalent, unless the County verifies that the applicant has met, or is meeting, the applicable Health and Safety Code requirements. Government Code Section 65850.2(c). If the. applicant certifies that acutely hazardous material will be handled in a quantity exceeding the stated thresholds, the City may not approve a permit application until the applicant obtains from the County a notice of requirement to comply with, or determination of exemption from, the requirement to prepare and submit an RMPP. In addition, the City may not find an application "complete" until such a notice or determination is obtained. Government Code Section 65850.2(b). As you know, the time limits for the approval or disapproval of J "Handle" is defined to mean "use, generate, process, produce, package, treat, store, emit, discharge, or dispose of a hazardous material in any fashion" and includes "the use or potential for use of a quantity of hazardous material by the connection of any marine vessel, tank vehicle, tank car, or container to a system or process for any purpose other than the immediate transfer to or from an approved atmospheric tank or approved portable tank." Health and Safety Code Sections 25501(i), 25501.3. 2/ These thresholds are listed in 40 Code of Federal Regulations § 355, Appendix A, a copy of which is enclosed. RICHARDS, WATSON & GERSHON . Lola Ungar June 9, 1992 Page 3 an application under the Permit Streamlining Act do not begin to run until an application is found (or deemed) to be complete. The County's RMPP notice must indicate if any of the acutely hazardous material to be handled at the site would create a risk of an accident that could threaten schools, residential areas, health care facilities, or day care facilities. If the County identifies such a risk, no permit shall be issued for 90 days or until the County has verified that the requirement for an RMPP is being substantially met, whichever comes first. If the County does not identify such a risk, the City may issue a permit when all other permit conditions have been met. In either case, the City may not issue a certificate of occupancy prior to submittal by the applicant to the County of an RMPP. Government Code Section 65850.2(b). As before, the City must consider the recommendations of the County and SCAQMD in deciding whether, and under what conditions, to allow construction. Government Code Section 65850.2(d). The City retains authority to adopt a schedule of fees for applications in order to recover the costs of carrying out the above requirements. Government Code Section 65850.2(f). It will be necessary to amend each of the City's development applications, including its building permit application, to comply with this new statute. Please call me or Michael if you have any questions about how to do so. In addition, you may wish to contact us in the event a building or planning application is filed which involves hazardous materials. As this letter suggests, regulation of such uses is complex, and our advice may be helpful to you. Very truly yours, Rubin tS. Weiner RDW:amr Enclosure cc: Michael Jenkins, Esq. 1100320 J The City may also require the applicant to submit a certification from the SCAQMD that the applicant has disclosed information regarding air contaminants required by the SCAQMD pursuant to Health and Safety Code Section 42303. The statute does not specifically require the City to condition issuance of a certificate of occupancy uponsubmittal of such a certification, however. § 355.50 Ins the information indicated in para- graph (b)(2) to the 911 operator, or in the absence of a 911 emergency tele- phone number, to the operator. For purposes of this paragraph, a trans- portation -related release means a re- lease during transportation, or storage incident to transportation if the stored substance is moving under active ship- ping papers and has not reached the ultimate consignee. (Approved Ly the Office of Management and Budget under control numbers 2050- 0046 and 2050-0092) 152 FR 13395, Apr. 22, 1987, as amended at 54 FR 22543, May 24, 1919; 55 FR 30188, July 24, 1990) (1355.50 Penalties. (a) Civil penalties. Any person who falls to comply with the requirements off 355.40 shall be subject to civil pen- alties of up to $25,000 for each viola- tion in accordance with section 325(bX1) of the Act. 40 CM Ch. 1 (7-1-91 Edition) (b) Civil penalties for continuing violations. Any person who fails to comply with the requirements of 355.40 shall be subject to civil penal- ties of up to $25,000 for each day during which the violation continues, in accordance with section 325(b)(2) of the Act. In the case of a second or sub- sequent violation, any such person may be subject to civil penalties of up to $75,000 for each day the violation continues, in accordance with section 325(bX2) of the Act. (c) Criminal penalties. Any person who knowingly and willfully falls to provide notice in accordance with 355.40 shall, upon conviction, be fined not more than $25,000 or impris- oned for not more than two (2) years, or both (or, in the case of a second or subsequent conviction, shall be fined not more than $50,000 or imprisoned for not more than five (5) years, or both) in accordance with section 325(bX4) of the Act. APPENDIX A TO PART 355 -THE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIES IA1ph•beice- Order) GAS No. Chime* name Nolae Reportable quanWy- (pounds) Threshold piwwng gtwrtllly (pounds) • 75.86-5 Ac•Ian Cyanohydrn 10 1,000 1752-30-3 Acorn Tbbsampnb•sid• • 1 1,000/10,000 107-02-6 a Aoln 1 5.00 79-06-1 AayUnads d, 1 5,000 1.000/10,000 107-13-1 AayordrW d,1 100 10.000 814-68-8 Amyly1 CNaid• is, h 100 111.80-3 AdpaMre• •, 1 1.000 116-063 AMttcerb c 100/10,000 30600-2 Mein d 500/10,000 107-111-6 A•y1 Alcohol 100 1,000 107-11-0 AtlyWmirt• • 500 20850-73-8 AManih.n Phosphide b 100 500 54-32-4 Artntopao • 500/10,000 78-63-5 Andlon • 500 3734-97-2 Anon Onisss • 100/10,000 7664.41-7 Amnorw I 100 500 300-62-9 Anipltsta11Y1• • 1,000 82-53-3 Mhos d, I 5,000 1000 N-05-1 An.,..2,4.6Tlrn•610 • 500 7793-70-2 Antimony P•rhMuands • 500 1307-94-0 Arh•rrty in A c, • 1,000/10,000 88-88-4 ANTU 100 600/10.000 1303-28-2 Arsenic pahosd• d 100/10.000 1327-83-3 Arsenous odds d. h 100/10.000 7764-34-1 Ar••nhouS Ykhlorids d 500 7764-42-1 Ws _ • 100 2642-71-9 Alinplo•-E9g4 • 100/10,000 66-50-0 AdlpltwBMMM 10/10,000 96-47-3 B•nhY Chloride 0 5,000 500 68-1H Baru•nrwr. 3{T,Miacnw0lyi} • 500 100.14-1 Manna. l4QYomlosal 4•4-NWro • 600/10,000 352 Environmental Protection Agency Pt. 355, App. A APPENDIX A TO PART 355 -THE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIES -Continued 1Alpnab•bc.sl Order1 CAS No. 98-05-5 3615-21-2 98.07-7 100-44-7 140-29-4 15271-41-7 534-07-6 4044-65-9 10294-34-5 7637-07-2 353-42-4 28772-56-7 7726-95-6 1306-19-0 2223-93-0 7776-44-1 11001-35-2 56-25-7 51-03-2 26419-73-8 1563-66-2 75-15-0 766-19-6 57-74-9 470-90-6 7762-50-5 24934-91-8 999-61-S 79-11-8 107-07-3 627-11-2 67-66-3 542-08-1 107-30-2 3691-35-6 1982-t7-4 21923-23-9 10025-73-7 62207-76-5 10210.66-1 64-66-8 56-72-4 5536-29-3 95-48-7 535-09-7 4170-30-3 123-73-9 506-66-3 506-76-5 2636-26-2 675-14-9 66-81-9 106-91-5 11702-41-9 6065-44-3 919-06-6 10311.04.9 19287-45-7 111-44-4 149-74-6 62-73-7 141-66-2 Charmed norm• Benzenearsonc Ace _ . .... . B•nyrrndu0le, 4,5.Orcnla0.2•ITnlluorom•Ihyl•....... .... .. . . BMIOI/rchlor,O• .. B•ruyl Chlord•..... ................... ..... ..... . ... . . Benryl Cyanid* . . . .. _. .. . ... . . ................ ... .... ... .... . Brcyclol 2 2 1IHeptane-2-Caborelr•a, 5•Chloro-6- 1(11Mathylamno)Cubony$Osyllmino)•, Its-(1•atphw, 2 -beta, 4 - alpha, 5 -alpha, 6E)). Brs(CMaomethyl) Ketone Bnoscanate .. . .. ... ......... Boron Tr/chloride .. . . . .... .......... ...... . ...... . .. ... . Boron Trdluord• . . , .. Boron Tnhaende Compound With Methyl Ether (1:1) . .. BromadaWn• .. .._. .. .. Bromine .. . . . Cadmium Osd• . ... ..... ....... Cadman Steaats .... Calcium arsenals Campwchor Canthardn .... Carbachol Chio d•...... Carbonic Acid, Methyl•, 0-1(12,4•Dnwthyl-1, 3-ottholan-2- H)M•Ihyh•n•IAmno)-. Carboluan ... Carbon ()wilds Carbophsnouson Chlordane CNorl•nwnlos CNorn• . . CMormapfos.. . .. CNormagwt Chionds Clttoroaceoc Acid Chlao•Inardl Chlorosthyt C1Maolormat• Chorotorm ... .. Chloronwihyl •Iryr . . CNoromethyl methyl ether Chlorophecnorw Cnaosuron CMorOsophws Groner Chloride. . Cobalt. 1(2,2'•I1,2•Etnansdryids (NNrbrnetnyhdl•naIIBts(6Fluoro- phwn0l•o1112-)•N,M,O,OT-,. Cows Carbonyl Cotchcna Cawnaptas Cuunat•hatyl . Geed, o' Gotonad•Ityde GOtonldehyde, (E►- Cynog•n Bromide Cysrdp•n loads Cysnophos.... Cyrwnc Fluada Cycloh•snrde Cycehwsylamins Decatoranet l 4) . .. .. ...... . .. ..... D•nwon Datwton-S-Methyl DuMlol . . nboranw Orchtoro•thyl ether. . .... Qdeaonistnylphenylulan• Dtchorvoe Deroloph0e 353 Notes •, g d d •, h • • • • • • is, I • C. • d d • • • 1 • • • •, h • • d.1 6,d a • •. h • • I. h •, n • d • • • • • • , I • • • • • • Reportable Threshold quantity planning quanbly (pounds) (pounds) 10 100 10 100 10 10 10 10 10 1.000 100 100 1,000 10/10.000 500/10,000 500 500 500 500/10,000 10/10.000 500/10,000 500 500 1,000 100/10,000 500 100/10,000 1.000/10,000 500/10,000 500/10,000 100/10.000 500/10,000 100/10,000 10/10,000 10,000 500 1,000 500 100 500 100/10,000 100/10,(00 500 1,000 10,000 100 100 100/10,(00 500/ 10,100 500 1/10,100 100/10,000 10/10,000 10/10.000 100/ 10,000 500/10000 1,000/10,000 100/10,000 1,000 1.000 500/10,000 1.000/10.000 1,000 100 100/10.000 10.000 500/10,000 500 500 100/10.000 100 10,000 1,000 1,000 100 Pt. 355, App. A 40 CFR Ch. 1 (7-1-91 Edition) APPENDIX A TO PART 355 -THE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIES -Continued IAph•b1c•1 Order) CAS No. Ctwnc.I name Not*. Reportable quantify' uangourds) 1 plan 1454-53-5 D.poxybutare • n•p• p••p•— • n • • • ••• ••non• •�•p•}n a' ...¢•• • v - - - �P? 0 s v v• s 7 10 614-49-3 01101)4 CWdephoepal• 1 1542-54-2 01Mrylcarbnmatala GINN 1 71-63-6 D olun 2236-07-6 Dlglycdyl EMar 1 1 20630-75-6 Dgoon 1 115-21-4 DimNdt 1 60-5t-6 Dne6gau 10 2624-03-0 DM PhosihorodarldoSeal• mM I 77-76-1 01mWy1 MN•1• 100 75-711-5 Om•ml4dlchloroanre 1 57-14-7 t m. yMrydr•M11 10 1 99-66-9 Dneuan 1 644-64-4 1 DnYoaa•d 534-52-1 10 66-05-7 Or1oa•b 1,000 1420-07-1 Dnotrb 76-34-2 Dor•Wal 62-06.6 DiNcmon• 162-16-0 Oplo•p otw4d•, Od4rms8yy. 100 296-04 Doulto*on 614-734 019r•1.i#1. Iodld• 541-63.7 011hobiur6 100 31H2-7 Ermine. Deydrochlrtds 115-29-7 EndoalNan. 2771-04-3 EndoSlion 72-20.6 Eni n 106-60.6 Epldaord70611-.._.__..._ 100 1, 2104 4-6 EPN 60-1H Ergoalaerol 1 379-79.3 E/potarmn. Total* 11122.32-6 El ert..Jforyl C79rids. 2 O4oro- 1014047-1 663-12-2 Em. ol, 1.24Oid4oro•, Ambits,_ Dillon 10 I, t, 13164-46.4 631.07-0 Ethopropllo. E111s(2-C4loroIMM)A.liI. 1 t, 1 371-02-0 (m 4.n. Fluorolyrin 1 75-21.6 Ethylene code 10 1, 107-15-3 EY114.nsd,mna 5,000 10. 151-6H EtlyWlwnn• 542-90-6 E9yMrocy.reN 10, 22224-92-6 Fansmipho. 122-14-5 Frero9wn 116-90-2 F•nsullo9wn 430140-2 Fkaiwilel 7162-41-4 Flown* 10 640-16-7 Fkoro.c.4 nod. 100 144.46-0 F1ure•CMIG Aad 350.06-6 Fluoro.c6y1 040055 51-21-6 FMrorour.y 944-22-9 Fonob. 60-00-0 FonmaldMgd• 100 107-1H 23422-53-6 M Formaldehyde Cy4rohnydrn F0,man. Hyd ionde e rod 1, 2540-02-1 17702-57-7 Frmo6wnrl Formpr 1. 21541-32-3 3676-19-1 Fo•6N.isnszo Fdbe d l• 110-00-9 Furl 100 13450-10-3 Gallium TM:Wede 77-47-4 Nsr•d4orocydaprllabr s 10 4635-11-4 Nx I an11YMredirlYna,N,N'.plblAyl- 1 302-01-2 74-90-6 Hydnn• Hydrocyanic Aced 1 10 1, 7547-01-0 drW Hydrogen • (955 rMy) 5,000 54 76 -39-3 Hydrogen Fluoride 100 354 freehold quantity 500 500 100/10,000 100/10,000 000 10/10,000 500 500/11000 600 500 500 000 10/10000 500/10,000 10/10000 100/10,000 500/10090 600 10/10000 100 600 600/10,000 100/10,000 1/10,000 10/11000 600/10000 500/10000 000 100/10000 000/10000 500/10,000 500 000 000 000 500 10 000 000 500 000 10/10000 500 500 100/10,000 500 100/10000 10/10,000 10 500/10,000 500 500 000 500/10,000 100 100/11000 500 100/10,000 600 /11000 100 600 000 100 500 100 Environmental Protection Agency Pt. 355, App. A APPENDIX A TO PART 355 -THE LIST OF EXTREMELY HAZARDOUS SUBS' ANCES AND THEIR THRESHOLD PLANNING QUANTITIES -Continued (Apheb.tosl 010011 CAS No. 172244-1 7783-07-5 7763-06-4 123-31-9 13163-40-6 297-76-9 7842-0 102-36-3 465-73-6 55-91-4 4096-71-9 106-23-6 119-36-0 78-97-7 21609-90-5 541-25-3 56-09-9 7560-67-6 109-77-3 12106-13-3 51-75-2 950-10-7 1600-27-7 7467-94-7 21906-53-2 10476-95-6 760-93-0 126-96-7 920-46-7 30674-60-7 10265-92-6 556-25-6 950-37-0 2032-05-7 16752-77-5 161-311-2 60-03-7 74-63-9 79-22-1 60-34-4 62443-9 556-01-6 74-93-1 3735-23-7 676-97-1 556-64-9 78-94-4 602-39-6 75-79-6 112H1-5 7766-34-7 315-11-4 50-07-7 6923-22-4 2763-94-4 505-60-2 13463-39-3 54-11-5 65-30-5 7697-37-2 10102-43-9 90-95-3 1122-60-7 10102-44-0 52-75-9 991-42-4 Chemical name Nolos Hydrogen Peroxide (Cons -52%). Hydrogen SeNlwde Hydrogen Sultd• Hydogmdh. .. kon, P•nuc•rbonyl• Is004n2•n I,obutyromk4• Isocymc Acid. 3 4.D1cNoraphenyl Eats, hodrn Isoll orp at.. uopharon. Onsocyarule ... .. ........ ..... Isopropyl Chloroforms). I.oproplymet ylpyr•201y1 Dnmthylcarbamat• Lxlomk•• 159409 oe lewild Lrdan• Lithium Hydride M•l000nd 411 . Manganese, Tncartonyl M•mylcyclop•ntadanyl M•chlon•Oarwe M•phoslolan Slocum Ac•t.Ie Macunc cnhond. M.c nc Oxide . .. . ........... Aethaaoisn O11Cetat• M•thhatryl,c Anhydride.. 1MOutrybntrhe M4thecrybp Chloride M.thsoryloyb■ysl yl hsocyanate Mettunrdop os . . M.Ohan.sultanyl Fluoride M•Ihdadron M•ttrocnb M•ttomyl .. . M•thosyeltryehercunc Acosta Methyl 2t.Nao•cryul• Methyl Blond..... Methyl CNorolormae M•Ihyl Hyda2n. Methyl Isocyanata .. Molly* I•othoCyanae Wthy1 M01apen Methyl Phenkapton.......... Methyl Phosphomc Ddhord• Methyl TMayansle Methyl Vinyl Ketone M•thylmsla,nt Doya wmde M.thybnddoroWan• Melolcarb.. Mewphde Maacarbst. MMlomyan C Monoaotophos Muscmol Mustard Gas. N.LMe1 carbonyl Nicotine Nicotine White Ndnc Acid Nitric Oxide Nlkob.ru011... Nmocycloll.o•n Nitrogen 0001000 Ndosodrrr0yWrw11 Noto/nnde I, I • • • •, h • IL• • • • c. 4. h d b. • S. h C. • • • • • • • h • I, h • • 355 h • • d, h it. • • b, • • e • 1.111 • d • Reportable quanbly' Ipoundp 100 1,000 1,000 10 100 1,000 1.000 10 100 40 4,000 10 1 1.000 1 10 100 100 1.000 10 1,000 10 10 1 Tfreshold planning el 1,000 10 500 500/10,000 100 100/10,000 1.000 500/10,000 100/10.000 100 100 1,000 500 1.000 500/10,000 10 1,000/10,000 100 500/10.000 100 10 600 500/10,000 500/10,000 500/10,000 1,000 500 500 100 100 100/10,000 1,000 500/10,000 500/10,000 500/40,000 500/10,000 500 1,000 500 500 500 500 500 500 100 10,000 10 600/10.000 500 100/10,000 500 500/10.000 500/10.000 10/10.000 600/10,000 500 1 100 100/10,000 1.000 100 10,000 500 100 1,000 100/10100 Pt. 355, App. A 40 CFR Ch. 1 (7-1-91 Edition) APPENDIX A TO PART 355 —THE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIES—CORIInUAd (Alphabetical Order) CAS No. Chemical nano ids R•ponabM quantity' p 0 Oiganortlodern Complex OWN -112-1.7) • / 63040-4 Walton c, • 1 23135-22-0 Oxanyl • 1 76-71-7 Oxman*. 3.3.8rs(ChbronleMY0- 1 • 2467-074 Oaydoul$olon a, h 1 6- 1002 16-6 Ozone. . • 1 1610-42-5 Paraqu•1 • I 2074-50-2 P•r qua! Me61oau1NN • 1 56-36-2 Pane/von c.d 10 200-00-0 Praltron•M•0 4 c 100 12002-03-6 Pans Green d 1 19624-22-7 Pamaboran• • I 2670-26-S P•ntad•cyl•nwt• 6 1 70.21-0 Praunc Aad • 1 664-42-3 Plechloremeithlmsrcaptan 100 106-95-2 Phenol 1.000 4416.46-0 Phenol. 2,2'•Thobn(4CMoro-6M•6y4)- • 64-064 Phenol, 3-(1-M•6ry1•Yryq•. M•hylcaArolrN • 56-36.6 Pllrwrrsine.10,t0'-Oxyrk- • 606-26fi Phenyl Drd4norarl• d. h 59-66-1 Ph•nylhydr•nns Hydr0cnbmd• • 62-36-4 Phan 0 a,cuy ACMal. 100 2007-19-0 PM^YIWYan• •, h 103-65.5 Ph•nyl6xorrma 106 200-02-2 Phoral• 10 4104-14-7 Prlos.c.6m . 1 947-02-4 l Ptodan • 1 75-44-5 Phosgene I 10 732-114 PhamM • 13171-214 Plto•pll. radon • 7.00-51-2 Phoapwr 100 2703-13-1 Pho•pforo9rplc A. MMhy1•, O-EIhyl a/iM.hyl6liolPhrM) • Eater. 50762!0.9 Pno•p(ono6xpc Add, Methyl-, S(2-(Bi•(1•MWr)MMM)Amiro)Ehyl • O•Eryl Ester 2666-30-7 Pho•phonoirorc Aced. Mrlyl, O-(4-PWopb.ry) (3 -Phenyl EOM • • 325443-5 Phosplanc Aad. Cim.Oyl 4.(Mwyl0ro) Phenyl Ester • 2567-004 Phoaphoroarolc Acid. 0.0- i. ly(•S-(2•uemO ro) E9yl Estee C. 1. 9 7723-14-0 Phosphorus b. h 1002647-3 Phosphorus Oxydrorid. d 1.000 10026-134 Phosphors P•nhadilo d. b, • 1314-56.3 Phosphorus P•nbwds.... b. • 7719-12-2 Phoeplorw Tmiddorld. 1,000 57-474 Phy.o•rgnrl. • 57-04-7 Phyos.pnwl., SOWN. (1:1) • 124474 Plaosoom • 11040-4 Poen * • 23506-41-1 Pernlos-EOM • 10124-50-2 Polonium mama* d 151-566 Pohamann Cyanide 0 10 506414 Pola•aum Sew Oyrad• b 1 2631-37-0 Plomr.ca,b• a,h I 106-96-7 67-674 P opolacIons, B•1•• • 107-12-0 Pr(pionrl s Propwwd•, 3CNoro- 10 642-76-7 1,000 Propeophl.non., 4•An* - 7046-9 0,g 1 109.41-6 Pro Chlo,Mo,ma. Pros* • 1 75-50.9 Propylene Oxide 1 100 76-564 Propylwwlwl. d 1 2275-16.6 Pedigo.* • 1 129-00-0 Pyr•ne . c 5.000 110-761 Praline. 2.14•11154-6-11M54- • 1 604-24-6 Pyrrdne, 4•Arwlo- Proton.. 4.11614o 1 0• h h 1,000 1124-33-0 • 1 -1.0006o-, Plerww 63666-261 I. h 1 356 Threshold quantity (Pounds) 10/10.000 100/10.000 100/10,000 600 600 100 10/10,000 10/10,000 100 100/10.000 500/10.000 500 100/10,000 500 500 600/10,000 100/10,000 500/10.000 500/10,000 500 1.000/10,000 500/10,000 100/10,000 100/10,000 10 100/10,000 100/10.000 10 10/10,000 100 600 500 100 500 500 500 100 500 500 10 1.000 100/10,000 100/10,000 500/10.000 1,000 1.000 500/10.000 100 500 600/10,000 10 600 500 1.000 100/10.000 500 0.000 0,000 100/10.000 1,000/10,000 500 500/10,000 500/10,000 100/10,000 Environmental Protection Agency Pt. 355, App. A APPENDIX A TO PART 355 —THE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIES—COntinUBd (A1pt1•b•tceu Order) CAS No. oem. Noq• l loppnable oJantity (Pounds) This pl•rrwK (Pot 14167-16-1 ;z.=s l- • 1 505 107-444 7763.004 e, h I 1( 10 1,00( 7791-23-3 • 1 50( 553-41-7 • 1 1.00( 3037-72-7 • 1 1,00( 7631-89-2 d 1,000 1,005 7701-46-5 d 1 50( 26626-22-6 b 1,000 50( 124-65-2 • 1 10( 143-33-9 0 10 10( 62-744 10 IC 13410-01-0 • 1 IOC 10102-16.6 h 100 100 10102-20-2 • 1 600 900-954 0.9 1 500 57-24-9 c 10 100 60-41-3 • 10 100 3869-21-5 100 500 3569-67-1 • 1 500 7446-09-S it, I 1 500 7763-00-0 • 1 100 7446-11-9 0.• • 100 I 7661-934 1.000 1.000 7741-4 c. •, h 1 10 -0 13404 0-9 • 1 500 7783-00-4 •. k 1 100 107-49-3 10 100 13071-79-9 a. h I 100 76-00-2 c, d 10 100 597-644 c. • 1 100 75-74-1 C. •, I 1 100 509-144 10 500 10031-59-1 h 100 100, 6533-73-9 C. h 100 100, 7791-12-0 c, h 100 1004 2757-164 6-0 744 16 c... h 1 1004 2231-57-4 3919616-1 297-97-2 • 10 100 1 100, 1 t,000, 500, 10696-S 100 500 7 9-194 100 500 534442-1 614-78-11 100 loo 1004 500, 7550-45-0 • 1 5004 564-84-9 • 91-06-7 100 100 1 100 500 100 110-574 1031-474 24017-47-6 76-02-8 500 500, 500 500 IIS-21-9 .0 500 327-96-0 .5 S00 96-13-5 155625-1 h 500 100 27137-66-5 600 99•-30-1 600 IS -77-1 1.000 024-11-3 .h 1001 1006-45-1 5004 639-567 sod/ 655-77-1 , 4 (03 2001-964 . • 1,000/ 1314-62-1 1.000 100/ 101-06-4 . 1 5.000 1.000 357 1quantity /10,000 /10000 /10.000 /10,000 /10,000 /10,000 /10,000 /10,000 /10,000 /10,000 /10,000 /10,000 /10,000 10,000 10.000 10.000 10.000 10.000 *0.000 10.000 10.000 10,000 10.000 10,000 10.000 10.000 10,000 10.000 10,00(1 10,000 Pt. 355, App. 1 40 CFR Ch. 1 (7-1-91 Edition) APPENDIX A TO PART 355 —THE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIES—CORUnued (Alphabeece Order] CAS No. Moraine nine Notes Reportable ( ) Threshold Wog q 61-61-2 129-06-1 26347-13-9 66270.01-6 Warfarin Warfarin sodium • Xp44rl• Dichloride Zinc. Olddoro(4,4.0 4 46(u(M•0N•rl7Ylo) Crinxwel13tH{-7 Phosphide ,f�}• •,h • • b 100 100 1 1 100 600/10.000 100/10,000 100/10,000 100/10,000 500 NI 6e eleaAay a held RO M dnoarrL For more Mnab an on, see 40 CFR Table 302.4 a This chemical doss not meet •n45 ]odoy allies. Ie TPO is we al 10,000 ponds. b TIN m1nU r e racism •060. The TPO doge not deleu11 a 10.000 pounds lot non -pouter, non -molten, non -solution lam. c T s Waisted TPO changed ale lsdv4cd mire es described in Ihs edracd support document cemplelod d Indicates Mal the HO is object to chines when Ill. absserrent d palmier carcinogenicity end/or other q,ddly is StMa�ay reportable ouqusn*de lot ppu, 01 nolecation under SARA sect 304(4)(2). I The New dial r added der wens not sQOriMy lot methyl isocyret msy be adjusted Ni Mum rubmal ng action. g Reseed TPO based on new or m•gv4 W �trdcitdate. crepe MI W 402 substances 1 TPO U reseed 40 its coexisted value and does not cheap due 40 Wine* meow as in propO•M rule. 07 The TPO was reseed after proposal due 10 cYaybon error. 1 Chemicals on to anginal tiM Mat do not met toxicity came but because 016145 high production vokrne and recognized ludq are orddend domicile d oano•rn ('"Ogle chemicals"). 152 FR 13395, Apr. 12. 1987; 52 FR 15321, 15412. Apr. 28, 1987; 52 FR 48073-48074, Dec. 17. 1987; 53 PR 6575, Feb. 25. 1988; 64 PR 43185. Oct. 30. 1989; 54 FR 53063, Dec. 27. 1989; 55 PR 5545. Peb. 15, 19901 APPENDIX 8 TO PART 355 —THE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIES (CAS Number Order) CAS CIl•rllkd retie Noes Reportable purnt# ' (pouch) Threshold Planning beans (pounds) 0 Caliper' (P554-12-117) • 1 10/10,000 50-00-0 60-07-0 frpanortiodiun onnedehyde (Yam C dl d 100 10 500 500/10,000 60-11-6 Ergocecilerol C,• 1 1,000/10,000 51-21-6 Fluor • • 1 500/10,000 61-76-2 M•dlor•elenrwe C. • 1 10 61-63-2 Carb•cg101 Merida • t 600/10,000 64-11-5 Heroine c 100 400 64-62-6 Annr,aplerM • 1 500/10,000 65-61-4 teo5uaphee C 100 100 68-25-7 C•nYendn • 1 100/10,000 18-36-2 Pr•tson co l0 100 66-72 Couveptlos 10 100/10,000 57-14-7 67-24-6 d to 1,000 mere 67-474 c c 10 100/10,000 57-67-6 Pry Bee- Plnyeo••pgrle, 9•ACylel• • • • 500/10.000 500 67-4--7 • 100/10.000 II:II 57-74-6 CNordre d 1,000 68-36-6 Phonoziersina. 10,10'QrydF • 500/10,000 68-89-9 Liners d 1.000/10900 f0-66-1 Phonyitedrann• HydrocNoncle • 1,000/10,000 60-34-4 Melle1Hydranne 10 500 60.44-3 6nydn•ereale • 10 100/10.000 60-61-5 pm.u*a 10 500/10,000 62-30.4 � 6y ADAM 100 500/10,000 62-63-3 d d 1 6.000 1.000 358 Environmental Protection Agency Pt. 355, App. d APPENDIX B TO PART 355 —THE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIES—COn11nU0d (CAS Number Order) CAS No. Chemical name Nolte Reportaryqble Threshold gWorxtd•) Moundspenning ) do 62-73-7 62-74-6 62-75-0 64-00.0 6446-A 65-30-5 6681-0 67-06-3 70-69-6 71-63-0 72-20-6 74-63-9 74-60-6 74-93-1 75-16-0 76-21-6 75-44-5 75-55-6 76-56-6 76-74-1 75-77-4 76-76-5 76-76-6 75-68-5 76-02-1 77-47-4 .77-76-1 77-76-1 77-•1-6 76-00-2 76-34-2 76-53-5 76-71-7 76-62-0 76-04-4 76-•7-7 76.06-1 70.11-6 76-19-6 79-21-0 76-22-1 60-63-7 61-61-2 82-66-6 66-50-0 66-86-4 66-05-1 66.85-7 01-06-7 95-48-7 00-05-5 66-07-7 06-13-5 66.16.6 06-67-3 08-95 3 oo-6•-0 100-14-1 loo -44-1 102-38-3 103-65-5 106-69-• 106-96-7 107-02-6 107-07-3 107-11-0 0ichlono• Sodium Fluoro•c•uw Naloweenetlyanwe Phenol, 3•(l-M•11eletlyl)-, hMmylcarb•m•t6 Colchicum Ncotnm sulfate CycloMsmde Chloroform Proprophonons, 4•Amtino- Endnn... Methyl bromide Hydrocyanic Arid M•myl Mraplan Carbon Disulfide Ethylene oxide Prapyl•neuwe Propylene Oxide T•V•rn•thyde•d Triminhylchloronlans Dneulyt6ddaoare McMyti cNor00an• Aalone Cyrahydrn TmXdoro.OMyl Chloride HeascNaocyaoprdaorw OrmOlyl sulfate Dm•dwl Sulfate Talon T•ba•thyesad Dauthen Amon Oxus, 3,3•0s4Chloronerryq-. ledbrdyrorrtnl• Methyl Vinyl Keane LaClonrd• AcrylearM Chloroac•aa Arid Tlro••nvcarb•sid• Peer -elm Acid Methyl CNorolormae Memyl 2-Cldaoaa)ee Wrlam aphacrare mambos -Methyl ANTU MWrnm, 2.4.6•Taret yl- Orhoesb Toluene 2,6.Os•ocyrele Cresol, o- Benyneersonc Acid BruoU,cfdoddm Tnclda0phrglWa• Benz•rnamne, 3{Trdluoromethyl) Donna Chloride Nitrobenzene Oinet)9Phsnyi•nodanwne .. B•nzere. 1 • (CNaom•thyl) •4 •N,ro- B•nzyl Chloride Isocysn.0 Acid, 3A•D,chloroptenyl Eater Ph•nylprooru Epcbl ohydon .... Prop•rpyl Bromide Actaeon O4oro•thrlol Aeylrrwle 359 d,h ..h • • d,l •• 9 0, • 4h d d c,•,h c, d • • •, h • • d, 4 • • dh • • • d • d •, h d • • • d,1 • • • 10 10 10 100 1 10 1 1 1 1,000 10 100 100 10 10 100 10 10 100 1 10 1 1 1 5,000 100 1 1.000 1 100 100 1 1,000 100 1.000 1 10 1 1 5.000 1,000 1 1 100 100 100 t t 1 1,000 10/10,000 1,000 600/10,C00 10/10,000 100/10,000 100/10,000 10,000 100/10.000 100/10,000 500/10,000 1,000 100 500 10.000 1,000 10 10.000 10.000 100 4.000 500 500 1,000 500 100 500 600 10 100 500 500 600 1,000 10 4.000 1,000110.0)0 100/10,000 100/10.0)0 500 500 500 500/10,000 10/10,000 10/10,000 500/10.000 500 100/10.000 100 1,000/70.000 10/ 10,000 500 500 500 500 10,000 10/10.000 500/10.000 500 500/40.000 100/10,000 1.000 10 500 500 500 GLENN R. WATSON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER ALLEN E. RENNETT STEVEN L DORSEY WILLIAM L STRAUSZ ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WILUAM B. RUDELL DAVID L COHEN TERESA R. TRACY QUINN M. BARROW CAROL W. LYNCH COLEMAN J. WALSH. JR. JOHN A. BELCHER JEFFREY A. RABIN GREGORY M. KUNERT SCOTT WEIBLE THOMAS M. JIMBO MICHELE BEAL BAGNERIS WILLIAM K. KRAMER CURTIS L COLEMAN STEVEN H. KAUFMANN MARSHA JONES MOUTRIE AMANDA F. SUSSKIND WILLIAM E. MATSUMURA ROBERT C. CECCON PAMELA A. ALBERS SAYRE WEAVER KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA EFRAT M. ("A".^ -.AN LAURENCE S. WIENER DAVID P. WAITE CHRISTI HOGIN STEVEN R. ORR DEBORAH R. HAKMAN SCOTT K. SHINTANI MICHAEL G. COLANTUONO JACK S. SHOLKOFF B. TLDEN KIM DARYL T. TESHIMA CHRISTINA R. MELTZER BIRGITA HUBER S. ALAN RAY ROBIN D. WEINER SASKIA T. ASAMURA ADAM F. STREISAND TAYLOR L FITZMAURICE DAVID M. FLEISHMAN KAYSER O. SUME STEVEN L HOLCOMB RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A PROFESSIONAL CORPORATION June 22, 1992 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Lola Ungar Director of Planning City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 Re: Amendments to the Local CEQA Guidelines Dear. Ms. Ungar: JUN 24.1992 CITY Of ROLLING HILLS RICHARD RICHARDS By (1916-1988) THIRTY-EIGHTH FLOOR 333 SOUTH HOPE STREET LOS ANGELES, CAUFORNIA 90071-1469 (213) 626-8484 TELECOPIER (213) 626-0078 OF COUNSEL RICHARD H. DINEL 1190115 OUR FILE NUMBER R6980-00001 As you know, local agencies are required to adopt guidelines for the evaluation of projects and the preparation of Environmental Impact Reports ("EIR's") and Negative Declarations pursuant to the California Environmental Quality Act, Public Resources Code, Sections 21000 et seq. ("CEQA"). Enclosed are updated local CEQA Guidelines which we have prepared to reflect changes in the law since the City's current guidelines were prepared. This letter is to inform you of those changes, and to explain how they have been reflected in the attached Guidelines. If you have questions or comments about these Guidelines, please call us. If you are content with this draft, please place the enclosed resolution on the agenda of the City Council for adoption. (1) The Local Guidelines have been amended to reflect the new requirements of Public Resources Code § 21089(b), regarding Fish and Game filing fees. The Department of Fish and Game collects filing fees in order to defray the cost of managing and protecting fish and wildlife resources. As you may already know, the Department of Fish and Game has adopted final regulations pursuant to Fish and Game Code. Section 711.4, which govern the payment of filing fees for projects subject to CEQA. These draft Local CEQA Guidelines now indicate when a fee will be due to the RICHARDS, WATSON & GERSHON CONFIDENTIAL Lola Ungar June 22, 1992 Page 2 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Department of Fish and Game, and in what amount, at Section I.F(5) . These. Guidelines also state the procedure for determining whether a particular project is entitled to the so-called "de minimis exemption" from the Fish and Game fees, at Section II.D. If the City finds that, considering the record as a whole, a project involves no potential for adverse effect, either individually or cumulatively, on wildlife, no fee is required. Appendix P provides a form for the Certificate of Fee Exemption. (2) As you know, your existing Guidelines do not authorize the City to accept a Draft EIR prepared by the applicant. We do not recommend that you change this practice. These Guidelines therefore do not include the following method which is permitted by Section 15084(d) of the State Guidelines: "Accepting a draft prepared by the applicant, a consultant retained by the applicant, or any other person." If. you would like the flexibility to accept a Draft EIR prepared by the applicant, it is not impermissible to do so, so long as the City independently reviews the draft and finds that the draft reflects the City's independent judgment. If you would like to include this option in the Guidelines, please let us know, and we will amend the Guidelines accordingly. In addition, as you know the Legislature enacted Government Code Section 87103.6, making it clear that when an applicant pays the cost of a consultant's services in preparing an EIR, the payments must be made to the City, and not directly to the consultant. You should continue to utilize our standard EIR agreements for this purpose. Further, the enclosed Guidelines reference this provision at Section IV.B.(3)(c), in order to clarify the state of the law regarding third party contracts and agreements. (3) Section 21092.5 of the Public Resources Code now requires the City to provide draft responses to timely comments made by a public agency at least ten days before the EIR is certified. This change has been reflected in the Guidelines at Section IV.D. Section 21092.5 also requires the City to notify any public agency which comments on a Negative Declaration ofthe time and place of any public hearings on the project for which the Negative Declaration was prepared. Since the City is already • RICHARDS, WATSON & GERSHON • CONFIDENTIAL Lola Ungar June 22, 1992 Page 3 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. required to issue a notice 21 days prior to the adoption of a Negative Declaration, this notice will satisfy the requirements of Section 21092.5 for public agencies that receive it. See Section III.E and Appendix H of these Guidelines. For agencies that comment on a Negative Declaration, but did not receive the 21 -day notice when it was originally distributed, the City can comply with Section 21092.5 by providing a copy of that notice to the agency upon receipt of its comments. This change has been reflected at III.E(1). The statute expressly provides that nothing in Section 21092.5 requires the City to respond to late comments, to reopen comment periods, or to delay acting on a Negative Declaration or EIR. (4) Certain state and local agencies are required to compile annual lists of sites on which hazardous wastes are known to exist and to provide this information to the state Secretary for Environmental Protection. Government. Code § 65962.5. Under Section 65962.5(e) of the Government Code, the Secretary is required to provide these lists, the so-called "Cortese lists", to each city and county in which such a site is located. Section 65962.5(f) of the Government Code, in conjunction with Section 21092.6 of the Public Resources Code, imposes a number of duties on the City, and upon applicants. First, the City must not deem an application complete until the applicant identifies any state lists on which the project site appears. The Initial Study form contained at Appendix B of these Guidelines has been amended to require applicants to either identify any list on which the project site or any alternatives is located, or to certify that the site is not on any such list. Second, the City must independently consult the "Cortese" lists to confirm the information supplied by applicants. If a site is included on any list, and the list is not specified on the applicant's statement, then the City must notify the applicant pursuant to Section 65943 of the Government Code. The portion of the Initial Study form which is to be completed by the City now includes a checklist in order to document the City's compliance with this statute. Finally, if a project site or alternative is on any "Cortese" list not already identified by the applicant, then the City must specify the list and include the information required by the statement set forth in Section 65962.5(f) of the Government Code. The City may do so by completing the Hazardous Waste and Substances Statement included in the Initial Study form in Appendix B to these Guidelines, and affixing the statement to the Notice of Preparation of the EIR for the project, in any RICHARDS, WATSON & GERSHON CONFIDENTIAL Lola Ungar June 22, 1992 Page 4 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Negative Declaration prepared for the project, and in any draft EIR for the project. The Guidelines have been amended appropriately. In addition, Section 21084(c) now provides that the City may not deem a project categorically exempt from CEQA if it is located on a site which appears on any of the "Cortese" lists even if the project would otherwise qualify for a categorical exemption. Appendix C of these Guidelines has been amended to note this, and has been expanded to include additional categorical exemptions as well. (5) Section 21092.3 of CEQA requires Notices of Preparation, Notices of Completion and Notices of Intent to adopt a Negative Declaration to be posted in the office of the County Clerk for 30 days. The guidelines previously included this requirement with respect to Notices of Preparation and Notices of Completion. It is now discussed with regard to Negative Declarations at Section III.C, and at Section IV.C(2) regarding availability of the Draft EIR and Notices of Completion. (6) Section 21153 of the Public Resources Code was amended in 1990 to provide a clarification regarding consultation agreements with adjacent cities and counties. The City now has the option to negotiate annual agreements with adjacent cities and counties by which the latter waive their right to be consulted. The amendment has been reflected in these Guidelines at Section IV.C(1)(a). (7) A draft EIR must discuss "cumulative impacts" when they are significant. Recently, the courts have been increasingly strict in their interpretation of this requirement. See e.g., Kings County Farm Bureau v. City of Hanford, 221 Ca1.App.3d 692, 270 Cal. Rptr. 650 (1990). In order to clarify the proper standard, Section IV.B(5)(c) of these Guidelines has been amended. (8) The previous guidelines did not discuss Subsequent EIR's, Supplements to an EIR, and Addenda to an EIR. These amended Guidelines now indicate at Section IV.K. standards for these documents which are derived from the State Guidelines. (9) A new list of statutory exemptions from CEQA has been provided at Appendix 0. RICHARDS, WATSON & GERSHO• CONFIDENTIAL Lola Ungar June 22, 1992 Page 5 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. (10) Under certain circumstances, the Lead Agency has no discretion in deciding whether or not an EIR will be prepared. Public Resources Code Section 21151.1 lists some of these circumstances. These requirements have been noted at Section IV.A(3) . (11) And finally, note that Appendix F now includes the current Notice of Completion Form used by the State Clearinghouse. If you have any questions about this draft, or if I can be of any further assistance, please do not hesitate to call me or Michael Jenkins. Again, if you are content with this draft, please place it on the agenda of the City Council for approval. Also enclosed is a resolution we have prepared for that purpose. Note that thedate of approval should be indicated on the first page of the Guidelines. Y. Steven L. Holcomb Enclosures (2) CC: Michael Jenkins, Esq. City Attorney SLH:slh 1190115 GLENN R. WATSON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER ALLEN E. RENNETT STEVEN L DORSEY WILLIAM L STRAUSZ ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WILUAM B. RUDELL DAVID L COHEN QUINN M. BARROW CAROL W. LYNCH COLEMAN J. WALSH. JR. JOHN A BELCHER JEFFREY A. RABIN GREGORY M. KUNERT SCOTT WEIBLE THOMAS M. JIMBO MICHELE BEAL BAGNERIS WILLIAM K. KRAMER CURT18 L COLEMAN STEVEN H. KAUFMANN MARSHA JONES MOUTRIE AMANDA F. SUSSKIND WILLIAM E. MATSUMURA ROBERT C. CECCON PAMELA A. ALBERS SAYRE WEAVER KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA EFRAT M. COGAN LAURENCE S. WIENER DAVID P. WAITE CHRIST HOGIN STEVEN R. ORR DEBORAH R. HAKMAN SCOTT K. SHINTANI MICHAEL G. COLANTUONO JACK S. SHOLKOFF B. TILDEN KIM DARYL T. TESHIMA CHRISTINA R. MELTZER BIRGIT A. HUBER S. ALAN RAY RUBIN D. WEINER SASKIA T. ASAMURA ADAM F. STREISAND TAYLOR L FITZMAURICE DAVID M. FLEISHMAN KAYSER O. SUME STEVEN L HOLCOMB RICHARDS, WATSON 8c GERSHON ATTORNEYS AT LAW A PROFESSIONAL CORPORATION July 10, 1992 Ms. Lola Ungar Principal Planner City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 Reference: Dear Lola: I %is3 J U I_ 1 3 1992 pp CITY OE °o aI BPFLLS �J�a..a.aa»..aa.fkil;i[tx's� a{�eF..��s.:axF..�Le�• 333 SOUTH HOPE STREET LOS ANGELES, CAUFORNIA 90071-1469 (213) 626-8484 TELECOPIER (213) 626-0078 OF COUNSEL RICHARD H. DINEL 1680958 OUR FILE NUMBER R6980-00303 Zoning Case 448 - Mitigation Measures for Subdivision As a follow-up to our conversations, set forth below is suggested language for the biological assessment and cultural resources mitigation measures for the above mentioned project: "3. A biological assessment for each lot in the subdivision shall be prepared by a City approved qualified biologist prior to commencement of project grading or construction. The biological assessment shall include a description of all significant plant and animal life on the lot along with recommendations for preservation, mitigation or relocation of such resources. The developer shall incur the cost for preparation of the biological assessment and shall comply with mitigation measures recommended in the biological assessment as approved by the City." "5 In the event that subsurface material of an archeological, paleontological or other cultural resource is encountered during project grading or development, all grading and construction shall cease in the immediate area, and the find shall be left untouched until a qualified professional archaeologist or paleontologist, whichever is appropriate, is contacted and called in to evaluate the find and makes recommendations as to disposition, mitigation or • S RICHARDS, WATSON & GERSHON July 10, 1992 Page 2 salvage. The developer shall incur the cost of such professional investigation. The developer shall comply with the mitigation measures recommended and approved by the City for the disposition, mitigation or salvage of such material." I hope that this language proves helpful to you as finalize the mitigated negative declaration for this project. Very truly yours, Kevin G. Ennis Assistant City Attorney KGE:kge 1680958 you RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A PROFESSIONAL CORPORATION GLENN R. WATSON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON ERWIN E ADLER DAROLD D. PIEPER FRED A. FENSTER ALLEN E. RENNET/ STEVEN L DORSEY WILLIAM L STRAUS2 ROBERT M. GOLDFRIEO ANTHONY B. DREWRY MITCHELL E ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. STEPANICICH ROCHEU.E BROWNE DONALD STERN MICHAEL JENKINS WILLIAM B. RUDELL DAVID L COHEN TERESA R. TRACY QUINN M. BARROW CAROL W. LYNCH COLEMAN J. WALSH. JR. JOHN A. BELCHER JEFFREY A. ROBIN GREGORY M. KUNERT SCOTT WEIBLE THOMAS M. JUMBO MICHELE BEAL BAGNER I3 WIU.JAM K KRAMER CURTIS L COLEMAN STEVEN H. KAUFMANN MARSHA JONES MOUTRIE AMANDA F. SUSSKIND WILLIAM 3. MATSUMURA ROBERT C. CECCON PAMELA A. ALBERS SAYRE WEAVER KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA EFRAT M. COGAN LAURENCE S. WIENER DAVID P. WAITE CHRISTI HOGIN STEVEN R. ORR DEBORAH R. HAKMAN - SCOTT K. SHINTANI MICHAEL' G. COLANTUONO JACK S. BHOU(OFF S. TILDEN KIM DARYL T. TESHIMA CHRISTINA R. MELTZER BIRGIT A. HUBER 3. ALAN RAY ROBIN D. WEINER SABKIAT. A/TAMURA ADAM F. STREISAND TAYLOR L FITZMAURCE DAVID M. FLE;SHMINI KAYBER O. SOME STEVEN L. HOLCOMB June 10, 1992 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBUCLY ACCESSIBLE RECORDS. Mr. Craig Nealis City Manager City of Rolling Hilis 2 Portuguese Bend Road Rolling Hilis, California 90274 RICHARD RICHARD3 (1910-1988) THIRTY-EIGHTH FLOOR 333 SOUTH HOPE STREET LOS ANGELES, CAUFORNIA 90071-1469 (213) 628-8484 TELECOPIER (213) 626-0078 OF COUNSEL RICHARD H. DINEL 1911056 OUR FILE NUMBER R6980-00001 Re: HCD Comments on 1991 Housing Element of the City's General Plan Dear Mr. Nealis: Mike Jenkins has asked me to review the recent letter from the State Department of Housing and Community Development (HCD) which critiques the City's recently adopted housing element. I write to set out my comments.- HCD's criticisms are not surprising, and because they raise no new issues, we conclude they do not warrant further revisions to the element. HCD's conclusion that the resolution by which the City Council approved the element "does not adopt. findings as required by [Government Code Section 65585(f)(2)]" is incorrect. HCD apparently did not have access to the resolution and the exhibit to it which set out the City's findings regarding HCD's comments on the draft element. I note that Lola Ungar has since provided HCD with these materials and that further comments from the state agency may be forthcoming. As we advised the Planning Commission and City Council late last year, certification of the City's Housing Element by HCD would have been quite welcome, but did not appear likely. The predicted result has occurred. Nonetheless, subject to the caveats stated. in my November 15, 1991 memo to the Commission, we believe the element can be defended on the basis 'of the existing record. Although we should review any further comments issued by HCD, for now, we recommend no further action with respect to the RICHARDS, WATSON & GERSHON CONFIDENTIAL Mr. Craig Nealis June 10, 1992 Page 2 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBUCLY ACCESSIBLE RECORDS. housing element until the next Regional Housing Needs Assessment is released in draft form in mid -1993. Of course, if the City Council wishes to respond to HCD's comments by revising the element to provide for housing on the school site or otherwise to depart from policy commitments which do not promote the development of low cost housing, our capacity to defend the element could be significantly enhanced. If you or the City Council have any questions about this matter, please do not hesitate to call me or Mike. Very truly yours M'chael G. Colantuono cc: Michael Jenkins, Esq. MGC:mgc 1911056 FROM : COLYEAR DEV. COR i. 2.1992 5:09 PM P 1,5 CORD COLYEAR DEVELOPMENT CORPORATION FAX MEMORANDUM TO: CRAIG NEALIS FROM: RICHARD COLYEAR City Manager City of Rolling Hills TEL. #: (213) 686-0617 FAX #: (213) 377-7288 DATE: JUNE 2, 1992 __=====a:=aaaems I will attend the City Council Meeting on June 8th and, at approximately 8:00 p.m., will read the accompanying letters into the record. Since your councilmembers have previously stated that they must be "pet rocks, and not respond to citizen complaints, this will get us back down to the courthouse one more time. FROM : COLYEAR DEV. CORP. 2.1992 5:10 PM P 2 5 SHEPPARD, MULLIN, RICHTER & HAMPTON ORANOC COUNTY OIIICt ftvtNTN F1.00R 4011 M,,CARTMUR COURT NLwDORT SCACM, GAUFORMA 921100- 7,4I nt-1400 WRITLICS DIRCCT DIAL NUMdtR (213) 617-4137 w MIIT�tN••� 4twOoiS MO•ttt4Wr. COCOLtattwt ATTORiNCf1 AT LAW PORTY•CIOMTn FLOOR 333 $OUTI.1 m0Ft 3TRt[T LOS AROMAS. CALIFORNIA 00071 TCLC►MONL (213) 620-180 FAC$IMILt (2131 820-1308 CAOtt sM[PLAW T(L1RX 10.4424 May 22, 1992 Yia 2 ecQy and U.S. Mail SAN IRAMCIICO *MCC 1(VCNTCCNTM ILOOR IOuR tMIARGptRO CCMtt* 1AN FRANOSCO. CALII0RNIA 94u1 (411) 434.41114 SAN OIt00 OIIICC NINt?EENTN IIOOR 101 wt$T 1ROAOWAY !AN DIEGO, Giacomo, 92101-3503 (1111 331-1500 Kevin G. Ennis, Esquire Assistant City Attorney Richards, Watson & Gershon 333 S. Hope St., 38th F1. Los Angeles, California 90071 Re: Colyear v. City of Rolling lis, et al., Los Angeles Superior Court Case No. YC005965 OUR ?ILO NUM1C R41-40336 Dear Mr. Ennis: Over a month ago I spoke to you over the telephone and informed you that Mr. Colyear was willing to agree to the condition of the easement to the City of Rolling Hills for underground sewer facilities as set forth in the City of Rolling Hills' resolution. I asked you to prepare on behalf of the City an appropriate deed setting forth that easement. You agreed to do so. Last week when I spoke to you and told you that an inordinate amount of time had transpired since my request you agreed and said that you would prepare the deed of trust and a cover letter setting forth the City's delay in preparing the appropriate documents. You promised to have that deed of trust and cover letter to me by Wednesday of this week. It is now Friday and I have not received anything. As you know, it has been Mr. Colyear's contention all along that the City has been stonewalling him and stalling him in his development efforts over the past three years. Now, when Mr. Colyear has agreed to a condition imposed by the City of Rolling Hills, this stonewalling continues. If there is any legitimate reason for the delay in preparing these documents, MAY 251992 FROM : COLYEAR DEL). CORP. JUN. 2.1992 5:10 PM P 3,5 • • Kevin Ennis, Esquire May 22, 1992 Page 2 please let me know at once. Otherwise, I would expect to receive the documents by early next weak. Very truly yours, ;R+OINAL SIGNED BY F+. L. STONE Richard L. Stone for SHEPPARD, MULLIN, RICHTER & HAMPTON RLS : be cc: Mr. Richard Colyear 3\S\L0240Y4S.LCa FROM : I.ULYEHR DEL. CUFF•. JUii. -•• lU ri'i r To: Mr. Richard Colvear From: Barbara Clark 6-2-92 4:20pm A PC FACSIMILE TRANSMISSION PPM SHEPPARD, MULL/N, RICHTER & HAMPTON A Partnership Including Professional Corporations Attorneys at Law 333 South Hope Street, Forty -Eighth Floor Los Angeles, California 90071 Telephone (213) 620-1780 Facsimile (213) 620-1398 (213) 617-4137 May 28, 1992 Via Telocoyy and U, S. Ball Kevin G. Ennis, Esquire Assistant City Attorney Richards, Watson & Gershon 333 S. Hope St., 38th fl Los Angeles, California 90071 Re: Colyear v. City of Rolling Hills, et Alt, Los Angeles Superior Court Case No. Y0005965. R41-40336 Dear Mr. Ennis: Last week I wrote to you concerning the long overdue documents which you agreed to prepare to memorialize Mr..Colyear's consent to the condition imposed by the City of Rolling Hills on his development request --the dedication of an easement.for underground sewer facilities. .Once again you have failed to prepare the simple deed memorializing the conditions imposed by the City of Rolling Hills and have offered no explanation for your failure to prepare the documents as promised. You also agreed to send me a letter confirming that it was the city's responsibility for the delay in the preparation of the documents and not Mr. Colyear's fault. We discussed the fact that this letter would be necessary for the City's consideration of Mr. Colyear's anticipated request for an extension of his development approvals due to this delay. I can only conclude by your conduct that you are continuing the pattern of stonewalling by the City of Rolling Hills of every single one' of Mr. Colyear's development requests and requests for information. You will no doubt send me a letter stating that the City is treating Mr. Colyear like any other applicant and has no intention of stonewalling him in his development efforts. However, your actions as well as the City's croAk ?oue r than words. WA intAnd to oursue any further damages. FFO 1 OLT'EAF' DEy. • J VI i. 177 - - ro: Mr. Richard Colyear From: earbare Clark Kevin Ennis, Esquire May 28, 1992 Page 2 6-2-92 4:20pm p. 3 caused by the unwarranted delay in preparing the documents necessary to implement Mr. Colyear's agreement to the conditions imposed by the City of Rolling Hills in the pending lawsuit. I would appreciate some response to this letter no later than June 2, 1992. Very truly yours, \s\ Richard L. Stone for SHEPPARD, MULLIN, RICHTER & HAMPTON RLS:bc cc: Steven Kaufman, Esquire Mr. Richard C. Colyear `'13) 626-0073-' 131037772881 1, d D4 2 Ti SA 4; 24PM t FAX: 626 078- 13103777288;;- 2z b RE; L UTIOM 02 NO. COUNCIL 3I£ ; ;C£Z246THE CO Vail AT THE CITY AS the staff � yaaz 2J at 5J t%%-uese ±ee azas ] o2r Roi the ±ty Cou it Oend "r5, -. 4,4f t ids, ` a LAm4 4-22-92 ; 2 t 1 . FAX: (213) 626-U078-3 1310377?268;A 3/ ti • ei @ io 1 Sr= 6� - iat i and :F erq be remov a d The e Tyre f add _ ow 1 vegetation on 3 a notice o.'= c r y owners i ice_ rs - propel hous pool, ., �_.%�i't +• 3..�e 1J ne-i an rAa .uajp to h>rpt rs - - Code in that at 1 -he they art, f r . 3e .r_ - h ;=fit`.:. ty and thatt tiaa`e ah.r nd nezd atiYG and wy debris prop The Ci,cy Council further find that the a .d secured on proper foundation could -a -+tea _ owsve € since it is now closed e ,,, prou 4 Y: a t will alloy, aiai .�w� The Citgy' Council c' o s acted. ,in -._., _... menthe to determine s h e. _n wide and whether or not it sa-1c foundat .� 3he site ix i sestions also roveaI br oken a b k n :71b on sv< ;F pri esas wall as a cracked. .o 'e."a., d nx The pool's concrete foundation �p �s� }, s-, q q and -j_ {, continues a to sufferdamage I current condition, d3., cannot beits - A lam— condition T,7311. orsen. "7 deterr 1 F''' w3 cons 2 fe the u,.t wfIfIlfare. • a �3 = and does no the t tf dt 'p_r e wnether not re "s 1 t5_ea a owner f the „nce not u as e: Dal and the. # _a fy .Lai „ul -o_ of the Oft _ -ti esG --_ to 1,,Ti nd 'SENT =R kh ards ± 1son LA 4 : 4-22-09 ; 4:2711 ; £' : (2 13) 626-0078-4 1310377728o:4 4/ b • !i@ r solution shall tall -4% ef t 1992. «per \» a 1992, 9Q_ PPED this 6a/ sen ,L.A#.4 4 • 'TN , FAX: ( 3) o2J-UO7Y>- 13103777268; = 5/ b To -':rte=_-<>-_.: �+ T`= thl =` y LLf lT( HILLS STom",BEiRT LE .f?. h =Y y M2MBERS OF THE :TTY P` NC TL APRIL 11192 te as... Vic` c�a to comfort and 1 010 and 1.1 24.020. 15.21%,R, .F:j..- .� _ 2` s PORTUGUESE '°' §. .. RO D . .�� BEND ROAD 4!`A`-- o.i Coda err? ,R,7,4 A Y" n 326 c which y' e a i x may bring ng i' YS H4 AJ• '�R _ _ s$ 5.-ee �. crm, to ,71 en Kr `fir h' 's ^Ps r.{ of life 3 or property, Sections Sect n P.23.00 defines eny which ha in the recent f 'ate, `�= ] �-'° .`� '_i :. a ec e i e s` e an iCar4c * � ;,, r'-t--j,+ert s$ 4 �h-+,',.. _, •m sQa5 3 o land ners Y d _ lido t 3 x. The _ _ l led overcy- had recelved ':s nur4ber of complaints regarding the property <. Ica . ..�.. at 63 rfi 3 ,d _.k , i r inspections, _ of proper J Q _ tw-, the City notified determined that the the damaged swimming td sit' ted thereon :ere 8.24 and 8. Mrs, 3 Kenneth Thomas on Ao l at . hereto e as exhibit A. ' Road to 15b €-z nUlsai the t2"a,suar t the e x 1:Io;' .. uneve ons _1 1991 L z of nuisance a single fa i l a Slmai <' i=j pool h , Y li steelgirders. Certain =a. -nom it secure the .house on v. . -' taken. UnlessSuch con. - =x..,= slide structural ctiral L _ as junk .aaa d debris, SENT 1 ICh aISOn LiYq 4-22-92 4:2lf4 : FAX: (213) 626-U07d 131U3777288;g b/ 6 1 Based th l G. c i'.. t h - _!, so f x �=vim the _� a .`e.. ased Antr _ 'd.. -__ : tin„. Attaohmentst the f j oo q> rs to ths oulse-_ off of tts _,sr rovaled a broken s dow and sr Y as wall AS a cracked pool ;'d ' 'rA. concrete foundatiQn was ag- e iu suefmss _a rung e as she - ano. bf:l;, ,'._',, -IN-J P nI b ,. =R: and a e_'d. =?`pia must notice ..v y _batand i _ he _ r. i' 4" -5a 251g + e•, T - - ..tee k�,'.._ .a ,- zn -.` u aIe01 _= v- s iao l..1'i ;elf.^ oo3 or to tr:dm is still off of its 9 .y aY. rr_ u. _ -d!ira�:�..rd-; o the vehicle„ � avI ,F S, ,%k.• nuisance .'-'41tn the nn:roerty to ra, f p e -, fd 5 =, will 'prepare a `, ize she Pel.rY1 =Y+.K ..S '•,. .i `? ,.g a' :' 's order .t _. i - a...,. r.s'. e , .a u i s^ n o rii� i `i}.„ h o ut that in the event f•-;a_s then r,r_-.s=,=d an ass"`., Gsiment of a e iesi-t , that - a possibi ab a:teme - .,p Notice -. Y `3 _tifs Public H� .R. lS Aba' 4 _anc }} _ _, t uJ n- end t&ice' -;:20422 SENT BY:Richards, Watson LA#4 -22-92 ; 4:24PM ; FAX: (213) 626 0078- 13103777288:# 1; IIF Richards, Watson & Gershon 333 South Hope Street, 38th Floor Los Angeles, California 90071 (213) 626-8484 7542 TELECOPY COVER SHEET To: Ms. Lola Ungar From: Efrat M. Cogan, Esq. Telephone: (310) 377-7288 Total Pages: 6 Our File No.! R6980-00001 Subject: 63 Portuguese Bend Road Date: April 22, 1992 Document Telecopied: (1) Resolution and (2) Staff Report. Remarks: For your information. Thank you. Please reply to 38th Floor Telecopier: (213) 626-0078 Time Sent: THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INTENDED RECIPIENT NAMED ABOVE. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY COPYING OF THIS COMMUNICATION OR DISSEMINATION OR DISTRIBUTION OF IT TO ANYONE OTHER THAN THE INTENDED RECIPIENT IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE UNITED STATED POSTAL SERVICE. 41, FAX- 2131 69.6-0073- 131(03777` 8 1/L • -`;_:s 3. Y:& Gershon Sia; ,.,. Hope St -r 1e /a.1�;h �F oor,„", - - - - L -d E�;r .= 7 Los Angels- ,,ail forn..,a 90071 Me. Lola Ungar (2 1 3) 626 4 454 } CO ` COVER Sif .., :�.s�-.--_-a�� ....�� From 7-7288 7542 M Cogan, Esq. Total Pages: 12 What it.- _. - 54 o , 19-92 Ica 'R q 3' It f4 r-;, yp Yd z Spays., ab 'S, a r enc ` ei subiect. ie.ma';-ksl For and R- soiiutIo 3 rogardi n ".n. or'na"` 5„on.. Thank you, THE INFORMATION CONTAINED •[ IN i ce-£ i.. ., �. p .�„ MESSAGE IS - z IV '� "•� - _ O' - ' N -- �' . -t, a< O.; M 't . I p N e .y.�fy- "_-' ' i ^}i®L �lj`"'Y _ �. . . -_ �. '�:.r kA � -� d-.. � - - 3 � i � _ - _ E �.atl L i.��i :. a� �+2-- = i�.�. -r.i lT y�3 . T�. USE T INTENDED dECI` IB k.R NAMED ABOVE. IF SjO •- T`'- - 4Y'm 't ENDED RECIPIENT, a�j� T 4` U ARE NOTIFIED ARE _ _. �r� - .- - �nl.. -_+_�.� _.-��}". _ YOU �.L�4:e. HEREBY r € F THIS •� "i<jf �- is T Og € I z ._�n�= _-:{ � 4�fsgJ -1 !.`"__{'= COMMUNICATION ��u�.s 3a �`� ��s-, -=.?:,:Y =}_`3Na;;'I ON 'i. .: N - '1 T'i:: a,G ANYONE OTHER THAN THE ,, ` E m " RECI:PTEy = _ -,. "r 7 YOU HAVE .: ire-a,.,,e gM. PtEASE x vises BY TELEPHONE AND RETURN THE CONTRWICATIN •O: �. r, ,.. .,NAL.° $`a St.,J AE TO .,s AT THE s ,=}i t3 a - - VIA H_ aN . ,z.D STATED POSTAL a. #' StTCE: 1!.;f l dam, {`3t' LA#4 4- 3- 2 4 43FM FAX: (213) 626-OU73- 1310377721:i3;; 212 r) •. notice TO! tyrA 41, Sys FF 4 •� r�.3' _ -1-=5 sue` eX2o a o ROWING TidL MEMBERS OF PRE VISA a_.R a #aErr_ .- E F' i COUNCIL .TUGUESE, BEND ROAD xls Municipal i Code Chapter 8 _ ?4 and 8.2S the rooeduresi Dursuant to which the City may bring : . ns o nuisances. Chapter 8,24 provides that the owners rs poses s3 _''.>e o 'st Y s 1 City must maintain - � �� 3>� �.*% in ��'� i their * + operty z . e frog r,'�'� "� � - isa i.. a which i5 defined as anything whicl is _,= jug i us . the public health safety, is injurious to h estability of real property, or which interferes Vith the comfort and enjoyment of :Life or property. Sections 24010 and 8.24.020. Further, Section 8.28.090 defines any fond E property (- r 4t £ r City which -. a.a — �it+ „4�_ Rt_�. `sn:gs� has, in the recent ' S- , in the aggravate, enlargeor accelerate an a ands _ode to be a public nuisance. TheC� ; has re e4,ed .5 . er , e complaints regarding the remnants �-. ra.t }� of j' f � �i �x Af ji�-�e and ay ��} q y+^ yR ?a. t m.J7 nts g rne, and ,ae et: F'..'d 5�YehiolL„�'s dunps a Bend Sa_._�A _` �'a`'1 the -�_ �eu';'rtie5 co'�tYkiv.i.�n.,�.�'L'if known as 54 Port`sa �q:saes = Bend nomplaints And upon inspections of these °T T P ied the condition of the oiler city own ,„. of the. prosy that the city had, det,ermined t-hA _ _ t ce of the thq broken foundations constifuted A public e puruant tn Chapters 8.24 and %28 The notice eat and Mrs, meth Thomas on March 23, 1992. A copy of the attached hereto as Exhibit A. ,.^ o the existence of a nuisance at 5`1 Pon- ,^ff s Rend Re-, -_ , tire d;i ,§. ". llows: }— le -ass as as m a y j- 199-' syc,,a A L m n o --. �'-tu Ye .ten tea o a T e s5v5.� � _.> such __ `9 F er �.,m� located �.`-�.. s<<r5 �., g;.:� �i��cFF y 2_ L s a ra -+i "a i i ; _ � i e 1 z f _ t residence that exist_- on had 4 _ "t A,sn rpmmwId d P tiFo damage caused rav ' i ale landslide. Th.,- _e has suffered damage ,iiu4- _ �_i i_ F-'�. s ndel .� d c .._. l*''�� •�r'� suffer damage therefrom. ' ho the i _ - .i � z of t garage is substandard. a, ;a "�-� _ i - � r`-_ ��'�� erg#' 2_ of ,2 e f _ say a' S_.. .i l 4 3. ., the Limos Angeles County �'!'� ..�- ,r ..--� _ �-- � .>a _� `gyp - _ :..a`�a� eskn e s 'r.s ,- n'a to t.t o ! a -' Section _�. -,.3 3 �. s s it � s �. �' s t , NT,. - r- aD t. ,, - a (Open or abandoned That a`j z . } t) ThereCar x also a number of vehicles - �n.Spe#-2,..!-as 07- =s": 1722745Z Watson son L _ + 61i (213) 626-0078- 13103777288; 3/ 12 • • and a du. � :e.e3 stored are €nsi storage .,=t ---�4e e rt- raw. e The vehicles le and dump .ter to look like e junkyard, or visual blight. owners were notified ified a: these conditions in a- l Cff were z = to abate the A copy of that ` -4., _ `B a - 't+ as Exhibit has However, no action was T_6u - ehe., Cis formal notice of abatement to the own-Prp -tOber Octoberof 1991. No been a the above -described conditions on the property. _astd _ z the f t,;''_'e a j , 'iris • Staff t e.co de that W ei a e resolution ,on rrdeclari3 ' t a e coed ti6, of ad at 54 f ortuques e Bend o f; constitutes a The resolution would require the removal of the - ., rageas well as the stored Ph'A t tee.-wo •}, iu p t d - �- and L ie �3 t�s'me.��s 1- n resolution _ -5 - a t�'s`5 i :.'a, th' e (A -H, 4- onto the a -- _4. -z _-..i. i,- ,�.. -. _ ?.. z_' €'-..,a - 't./ enter Bw.i Si='.`� abste the nuisances by removinq the garage, vehicles ter. Before entering t _ ..'`-tr ct ace, the :Y':.i .y; At orney's ffic:e will prepare a Court ordef based upon these proeed ngs, to authorize thej CCity'se.+-+k roe a "ant 34Por ^n: - e - BendRoad. Oncethe signed, 9 the Ci can procee . _• C the nuisance without interferencefrom the x ?sc%rluti, will further provide that in the _re f ,gib - eel the ntlisance, it ' can then record an assessment £a 3; o e`;1 y for A l'.e€i.to {over. the cos; of abatement. tam hmen e Exhibit Notice of Palbi - Hearing to Abate Nuisance at 34 Portuguese Beata Road P,x Notice 9 1 ��°-��-� � � `-'-��.. t�_�, _;s Violation, `wiup"�-a-. ��aS July 2, 3 Exhibit C: Pictures domonstrating the condition of 54 Portuguese Bend Road 92%0? ezz `y ,� {'. ichards, ,neuj Si% 4- fa -0_ : 4•'�4 . r A� 3 It f. 2 - -•12 ii r e yam. :a .� ,_. � aL.-;t)1 �.� ,� �. A• (213)s626-0078-, L : Ys ,01 — fait INCOar-OCAAJ 0 JANUARY 051 O 2 pc r . $E _ s•Ho );:* 1213) 317.1=21 121313%7•72Ad re, ,,. 3m °14 IOU «;- g , City has d` tegam`mir ed m ,ss �'LrU �`¢,� d�€:r �'.«r�'3z �� s ��'s E�.3� u$�J�i.d the, �rss�°,°# ARE � � ,q (Lot. (Li • ti on moon Oni A efer � tot:.i 4 P ita gue e , .d Bind ot. eornia is e public nuisance pursuant to rhApter 124 the o ing ii.+c mqg?$ i.el Sa.S, The afore _ : ocae_d in as a tine Instdslide aktea and reMnAnta a garage, stored vehicles and figs overturned dut pst .:'f as a2 be removed y...� .T 1 days 'h •s the dote o this notice. ice. €764.3 ',, A gC shell ;bete a orb .v,r ial:1. on >"S %'a:''�r..'', ,a�.'�'� 997 et 7t30 PM, the cityCow-toil C r xS y et with this ), a at 2 Por.tutguese ri.oacL s p? Wins* s e has been abated or if there has beenro-oodfaith to a at -ate. At that time,. you sway the Cit P7. t.ho, - any other tere-sted parties m present ,egarding _ ctenaltion 4 the property. Based tom .n consideration st that a�x e og the rity shall make a ties _ -u--e_-- -- at- € �- ey The it�s_m2 r.:1") S,A Y rm . %.-Atan shall be fir: Dated:, Mar z, :gym'•, 1992: je b sAr )3 AUCITY MANAGER, SENT BY :Richards , Watson LA#4 ; 4- 8-02 ; 4 : 45PM ; FAX: (213) 626-007874. . 131037772884 5/12 COUNTY OF _OS ANGELES •; I..1EPARTXrN i Q; c,un i C 410 8UfLD Ni; AND S .q7r DIVISION PROPERTY R HM3 tL 1 TA l" I OU SECTION )tV 1i ri:Ni esssd Owner Name INFORMAL NOTICE bate fir � ) 66) l_ � �t (� l�.r`d eS' if known x41 Tine following Sar•d unsightly Slf:3 S ,;:it'tr �r � .,l and/or building conditions were observed on this property: (( -! i �y /i -J- Broken windows y� a �y ye y9^ }.inp taint e, building(s), S 3 Broken and/or doors. t: Overgrown vegetation, dead trees, weeds and debris. I trailers, campers, boat and other mobile equipment Stored for unreasonable periods o?' time, to yard t<r areas. x(listed below) r -:y-'`3 Abandonc-;1, wrecked, dismantled, or inoperative vehicles or parts thereof. `rc 5-t-ed be. Kf) � Attractive } nuisances darts rorts P ' .?�e6 �,. s.3 dangerours .tee r, children, } ae. q aban- doned or broken equipment, neglected machinery, refri- gerators, and freezers. Broken or discarded t'urn ire and/or household rnf r r , Ltd equipment Ui yard areas: ? Miscellaneous 7) article'; of personal property on the premi ses. / E 1 a Trash, junk, aood debris on the premises, Garbage cans and/or packing crates stored 1. front yard areas. i' Substandard'I.uilding conditions including limited i% .t irt� but not to; structural electrical, mechanical, and plumbing defects --°"`'� i,._.�4?�..+}1,_.....`•."' `�t»_.__._S.!__; (t�—<<.�'.:.:.`'.:,.,.�, .� i r7 tiC,�,..;,_...e. '� L''`} ��`r_rt�3 This "INFORMAL NOTICE" r F is provided to allow to+yuu abate the notedsubast ndard conditions t1oursel a by 10 jtl V O • without h is agency incurring anyabatement actii:m cosrs.-r Afi_ r you have corrected the problem, please contact your iw,,pector so the work done may he inspected and the action closed prior to the deadline date, Please note that i f tht;sre condition iont • e not 3 y i. - are r .� corrected, formal re;�aol itati n action shall commence is i r t substantial ' r iii which will l result in r costs that would become .l special Assessment 1n 't r° r"ur .;. � against the property. further information, i.+led a contact Mr./kg, at the Building and Safely. District Office v 1 ._y DISTRsC1 OFF- `CE, STAMP COUNTY_OF LOS AN LES IJY,-PAI jy-iEN I< OF PUBLIC WORKS BUILD/NG AND SAFETY DIV/SION 2,;320 S. NARBONNE AVE., LOMITA 93717 534-3760 SENT BY hards Watson LAM ; -4 4 47P.f • FAX: (213) 626-OO78- 131 O377726b : "1071 2 • RESOLUTION '.€ "•pYr s� RE.SO.3 d.a A .> ON N O . ' Sr: f'6 ice.. T A .. S 3_ z. i1 o : »E Ty }COt �.1 cIL O 1 HaE"_. cm?J. Z we � ,E 4 b u A '. r - i HTLLS nECTARiNG T . COIADITIGN OP THE PROPERTY tg A2'c E. E AT 54 PORTUGUESE BEND d. ♦i Bt TE U NT ' _anPaP THE ("PI -1V COUNCIL 01P THE CITY 0 ! RO? r ! ...W. FILLS DOES a i. e n ORDER sR A1 __P! .,ss ';-a 3, to Chap` s 8.14 P.nd .228 of the Code, i-he City of Rolling Hills notified as owners of certain real property in collmonly known n as B4 Portuguese Bend a __ and dumogIter stored on the property, and ss.s. � e i 31 - a S is of garage situated thereon, have been <_ erm„ `� € 1, a public nuisance and that vehicles, r- -. e rag must he 'removed oved within 15 days,otherwise the. _ hold e public hearing on April la, 1992 in the City Council n{ci PhamberA of.City C;:a..l to hear ens"' protests the o n `s a e .�. r of hen sance . The City set. tie noz:, ficaY ion on March 230 !_992. OW'-ne to test th e and _ - Road. ' evidence presenz ad e the foildwina /- - _mot#-_ An 1992, a�-�, k i y Council held a �a n .. g 4. g And any other t evidenoe regardingt,. e t 54 Portuguese B. „ - Bend the', staff t .rytlme of the lng l F at y.^f..c't. r�T+n,V ?,mac h« o_.0 was left on the '.i'S: ,..:s�t r e i _ .e. a _ ins - earth's si e In short sections a . On -e,.:... .�s Rend Road is Tr _ . } e yen improved with a ` ; 1 t d - the h rmesuffered S a m ae qar a which is suffered .,v ;"� � `..ys had rye ..� 991 Ad l 1 12 do on r it akeletal framing. The u s to suffer structural damage Pub #'..,�'.+r r . t serves. no primary house has long e nes been e garage is abandoned and dilapidated. goy revealed that there are a number of well as a du €pe er. v2O4O? :c 1720951 8-82 , 4:47PM FAX: (213) 626-0078-a 13103777288 F11t12 1 MuFrhe qarA g_ jk\i - ‹la termino �a 3the co ndition - -- = end Road is 24 ane 8.28 of the P l?rian of the p op Ai r es i� Bend Road d_ e .3 ems- _s _ v are uns. , - t cruse l., appea ran ce lan ce of an aba n omed garage vehicles and t. � -: s ubs an dares and uns ightly. k -q 4 omas has i 'ad an _bas i of in te rven the p co ndition dawn s`h1ia city Code J r31tit k ...,;t . in o tr ;` %: ion with resident`_ P _ D ot emit v a >ta i nt rs ids L area .a, e• '. ,n RT f . y.� 34is d...f. .. L = e � Sa 17. 16. 11 i uxy of 199. 1_ rt3- the" -is . t CO fa ct COD U1 months. r emains tpA In a; n 3 q a nd ; _se of the proper 4 Hill s the ce of gow ner s the p ro e rt of th at exist on the propert y-. th e prope rty in Octobe r +w own er s il_d not take anv p r ..t ...r r in th e yik -r tnt inspections do ab� l l .,. 6a - 'y sant e unsafe and ' unsightly c rf 3 F e`3 � f The rem ains nf r . ..he garag e m g Y: a' ` ��u � tC�.`. substandard . garage, as well. as th e vehicles and the dumpster, gh . They give the prop ert y � � o = y .1ding iL a nd junky ard. ' Thu s, the a the pr op erti ", to be tad a desire to inm o the o 5 etermi ,,,.a i. n on any dev elopment 1 ki is and ampr must be t'3.'`.; ( t,, C ouncil finds and . tjr located at 54 1n_ p ursuant to Chapte rs. s un ic3 , al Coda in that the . gai ne 4. ibou ss ° ;ae _ spr op erties 5. ng and' 3s da r op erti 6s a,.`� nd At t' V*if ., <3tj-5 3p i� s to th e nu . go„ -„It$ .-f : he City Count -7n orders r that . 'y �x,4 b hw"W . �.the - the v - L 1 . and .J"t.-m s e P av well, as any 4 s - s,. mod. a%9. '914 th p op t ty by . R�. f ,< owner (lo st of 1-owval of the :un4.m1 o iT nuisa nce data of mailing of the 7 o tl n uisance is no t paid to h theO - the ,.: a Clerk �- _ ta terent If the nuisance is not abatad a ape ' 3 c au seed is directed to the nuisance A also is d irected to n tti_cy tba certified m §. and regula r mail of +yaance end that pavr nt in fu1J for t :y. . City ty wi $-?.. }10- o Iff the 9 b e t... ? � 1. coot of abating m the y within 10 days after th e date ot 11 Decor{d, in th e Office of th 3- cx to al balance dui to the City u` -_n thG property. 920407 Win_ d son • 4 8-09 Phi . FAX: (213) 626-00784 13103777288412/ • Clerk is b Y ,' 7 directed to send ¢� .ed and regular main to the --cat--cated at 54 Portuguese Bend Road. kith=7,417, tkks `'` f f ct �+ a PASSED, Am PR� and 1992. env r'LERK 3 • this day of MAYOR 407 £use 172;1951 2 . :43PM . FAX: (213) 626-0078- 13103777288;¢ ti/1) • ; 4- 8-99 ; 4:45P1 ; FAX: (218) 696700 78 13103777268;g 7/12 W3t, 11 it4 4- 4 F:.7! ?`)1,a3 626-007 • 1 3103 721 8 ; t .1 Pxt- A aLs ti _ it's iLV: b2 '_lL C?- 13103777=6 ); • T BY: 3-12-92 :11:07AM ; R I CHARDS. WATSON 13103777/ ciumN R romiow xbue •. 21V_ lMue A OLOO"VOk alGw.AaQ .'. JI P� ALLOW O: MW4gTT RTEV OINL UQZ MA 1445 AQOIRT .COO Ap4TI4QNY a O/lIMRT wmPrelseiherdOTT TiM711. L. 1anLIP acs'aT O. DO I.AWTTA altgriMliarde eOWA1.o frrSka biL;M M a antis rrIWILM 111 TIMILAL rPACY OAI�MpML Myy.'D 4QMN A. re -00114 ta&AOAV:ErA.. �wT 7i +.. 1 mcsviens WWAM K~AM ajan. Ctiy tem+u a4TVON M. RA1�,'M..N �wuMM e. µ*TP- L A AMERT v. AAme,d% /w Later KMN O IRMO WAY O. MAWS ,1A� WAWA IMO M *WAN LAtAISEPICI S, r.eNeA *warn i•ONlia lTTtlQi.1 H. ORR Wei ! L O. w IONO ISVTLSOMMO ?MYLT.ITOM A GNAMMILA R MCLTW1 ,WWXHMIIR st awe, muvn* OAOSM-t Pa�MVM • AON1.. r IUAMG TD PR A sr KA' IRO e mss . •. RICE-HARDS, WATSON & GERSHON ATTORN V AT LAMP AmonimmodahLowdmmnoN March 12, 1492 CONFIDENTIAL THE MATEFIAL $UBJMor TO rHe AITORNEY•CUENT ANWOR THE ATTnRNEY WORK PRODUOT PANILEGEQ• D© NOT DISCLOSE THE CONTENTS HEREOF. 00 NOT FILE wrrH PUBLbOLY AGCEEsIPLE RELOADS. Ms. Lola Unger Principal. Planner City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 Re: Toning Case 408 (Richard C ea Dear Lola: ®r (tots -1q®) T1-IlRrr44JOMTM FLOOR ass 0p6rnl.,O OTHGFT LCS ANA OA &JPQNNM *O1.71-rsaa Q�I1 OR+di•m TELECOp1L}C (PIM 6Z oar. P 168,0637 • pup Q{.G AJ►tBlR R6980.303 Enclosed is the Draft Resolution for the Colyear matter and a confidential memorandum for the Planning Commission for inolusion in the. Commission's packet. Condition L o.f section 12 of the draft Resolution imposes pertain easements around the perimeter of the lot_ I recommend that we have same evidence in the reoord of this proceeding upon which to base the imposition of this condition Therefore, 1 recommend that you include in your staff report e paragraph somewhere in your staff report which says something like the followings "This lot is part of the subdivision of property obtained by Mr. Richard Colyear in 1971 certain perimeter easements that ware imposed as a condition of approval of the tentative map were to be reserved in documents to be recorded at the time the final map was recorded for the subdivision. These documents were not recorded. The Commission may want to impose certain types and locations of those easements as a condition of approval of the Site Plan Review pursuant to the authority provided by California Government Code section 66499.34, the City's police power, State Planning and Zoning Law and the city's ordinances." Is BY; 3-12-9? 11:O8AM RICHARDS,WATSON t2- 1310377728 • RICHARDS, WATSON & GERSHON CONFIDENTIAL• March 12, 1992 Page 2 THIS MATffIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUOf PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. 00 NOT FILE WITH PIJGUOLY AOOESQT9LE RECORDS. If you have any questions regarding this matter, please do not hesitate to contact ma. Enclosures RGE : kqe 1680837 Vary truly yours, Kevin C. Ennis Assistant City Attornay V P j flHRDR, WAT.S(\ 13103-777288;# # 1/17* lira :J i.'s isv r t vas .....,. t - .. ... ._ . ii( f board .:j S° v-lec nin. i21:Ji "'i,ri ,t"kiliH rc: 1�$iri- .l ti Eit „*,'.y xasr s`r, r fl marks: liISnvlr'�� TELECCPY COVER SHEET vs az as ce. ss �v r'i. Fii 7 iR1i, `vii _ i,�_..a'c--.= -- �-- - . - - OPERATOP �.— :c.eE SENT. u9v,,iti A-41©.Ft M • bi Ca! it ac }r•.. resat �nI ..n.y�iv•+ TEjIC. ,EN! i BY 1I . 0 h HA WATSON ,'� 131037772864 7 3-12-99_v �. � S `..i (: .1 RICHARDS, l::a\ tir 1 V:� ft:...j u! f .J R3 KAR $, WATcON & GF, aSHOA! WAN,: :v yen reua Mg. Lola Ungar Principal Plannar city o1 Rolling Hi11a Po'i ugUE)t Build RcEati .. , Hills, Cillifoff , mar Lola: 1Q-41,11:3 E ATTOrIn avil AT WW /. NNwmft.pf.ua_ GOAJt1i1 MJN f4rQPSARO 14t'.YVNVC !r atlox.+lkar ;,st kf r'3 #r .k_.y .da (r ivear1 ._..: f .., r^l si. v_d- [incr �fr t-�n15 fl S[\T By: L-12-92 :i1:08AM RICH RDS WATSON #2- 13103777288; 3/17 12, iq92 piwe y rl uhAve. n oc o h� ! r i� tn .,.r -T? ar:t EnelnmUreA XGE : !cge •7r:{Y: W j -ri.f c3£ 0 a40,7 -1,4.'t1=7 Ti 1 4 gin. - `-t please Vary truly yours, ic$vin G. Ennis f3si':m naa k. 1L_.\T °sv- 3-12 92 11 `12 �M . RICHARDS, WATSON y2- 1$1O37772& tat 7 r77.7.7 - v iv r ID ET A L 1• MEMORAXDUM *r tbo Pl Anv* nq Cvaminalim '--*.- _ -='=_ - ' ash . City 'g4_ ='r= L-__.-�- atTelEcTt r .'t e 3? ..der e Variance nAwf! March 12, 1292 by Atthe 1,.."' b.r.,..tli 'r.y.-zv''-�?- .. `.i?i+. ....___.. • _ _ - 2 . O ?d i _ re,lo li v rata :,_ . _.6 4 nt o arm. TItatlard - ▪ - i < • ino the S.f..r, lr,zld 5.-,t,L ck. to ,-t p13 C eotq r' f+ � �� .t s Fez. Ye r t ? on ./ , i V Il%�w d .. gi_i.1. 4 0 ,.i�td}3tn to i. . a w h for fa�e :. Y�:�'s:3..0 .a,� 1w cll Site Plan .. _y . ' �}� s in rtion if the, retaining wall $ -� �+.... r��1 � :.r bit -1d r not. -s,_—t aP - t j e.'0e'=. r "' J the L' 7p3. ,t c-t'nb' within the time rt.,,&I' e to providA adequate public 110 -ice of..thq. ' oj Plan .: f 1c< < :Lod would -is+. before ._he s,'.zI tj44 i.on r ular .m i. tn in April, -, r.,itS.,mitt d 4n i1"' p i.c it s',1.n for ''>4 s ia.-A ter C:E.c? 1: y tta ,e.o t i,, ack to conAltruut a reta .SS{,nc! Kr t A LL"_ .:g iios`y Oe 4 s3' 'c7 „�. 4 ny - _ -F- -: r .,.-c=;.r 1Sh,_. a i. c..,e t..ay;• 7t'y, _,. '_'•_ .. i.:• iii •-_ - f 199 ; meeting, i=v _f-`';7€ ii_ t '€jT 4:a?3 2r.,= gel re. that i feel "' pv :. - ... v.. inm c= ai are r11. �7.i .'. I � /� LX - 4 `.€slS, l 3 rscl?'•=? O these yi i_t1,ic4tis5nns, _ e.g `a"��:.-ia•:Y':..ndaiu -iz :4 t-.-,enci ._e o nsWe these cr Y4<s*ia'�'�-- and i_ pi L'= A xr r.Yj i" :bO t ire* sproCeed . . ._ i with '�J i}' sa r; �, 4 r-c >:iRi .. �`rf Varj4I3g_ADD3_C .t_inn If the variance sarlication m5t the 1`o m4sa~ on raltA . ti- i tS March { 'ti 1J, cr ing t lippreve or thmy the Varianc tc -rte o or tiAoy 920111 r;ge %tO m 0 1 C 0 iV F I Q E ti TIAL .1-,4,49 up?Cnt}e 14 a_i. L ' -,R yne. A.„T v .iicii v NICIT . au_ t....,11-4-4 --.,r_*_K%V . •_._- ^ :?;i •L ??Fr.:Ori;) 3. i 3-12-9 • FE-NFIpENTIALIO :11 :12;AM R R I CHARDS, WATSON #2-R 13103777288:A14/17 5? Fr?ffiwj abu Z a ion.. Th on for that if the etk . � '�`��__. 1;f33� is $.1'it3i. City ..,o a=. for Site Plan Review i i 4E; s�'-i�i1P:�:.a 'r, cc-+...> :he meeting, Ci ..y l l �.:.: t;* a.ir'§i C -o5 th6 GY x month h ' .'t1:4 •_%: tiQd to act authorized _ - C�:�. �.. 341,A,,� i# �.s., ��_ .1-�C'7e':.._s aav��'•$fisiiss'a��l- Cod Se .ion 9 O e 6'_p .i R If that :. to r �t e ` trc am i �''nt c ti. Rttaxot o :3"4''of s3.= ef. airy ,_`de de _ {.± .. �s` s ha _b i . i automatically de ppro`vgd ps.arguAnt to law. ti a In order for the- ' o `1.s.am J.on to he in a t o:sl-t i.rsn te ac1. n Plan Ravi W e 3�1. i.€:,a titre it shovId firet .Q � � � ,- .L �`6- t w.r-- motion �_� ± i -. -s il .m - '?�:t,:^,F application, if the F{^x-. o ds v Y:3 to de { `Q` ti a Flan §' eVi+. w ap�plii; Iti n the e+. ,... s F �J _. e - V � Se:s F�sc .p, is is, �- not noel to v 1 r t %aiSan eotien on the. voriande, although denial of ths rianoe could he used * an additional__ _ _ '- R:i _ _ _.. =, ,`-ie,a application. =sue 3 .lr �71c With rsa�rbect to the vatianoe, the .3L 4< � the discretion to approve :.' or deny 't'.h" v always i he_* 11 trigger two YY i S .- e_ "[ - .a. L will i �. harder .._� �1. Ltd 'i.171 if�-`5 S G6 a41 make 33a €�z-' irs"d a. ina n€ e for tho site i;r€ Re i, ,� _.poi,:.oa ioh b-R..,:.� 2se Lhe pro 4 att will not ✓% in compliance ;, the %eov event` the unicipai coda o will , -t x y with t;. _n i .t e �# � J t,5. P s7 .'�' 'i` i..+. municipal Y6��2.� code tS by . Ay of an approved veri a:1..._ n, 'hiThia will ueotesitato eithaz domC it;.C,=ai of an. roYe1 fdr the site Pia Review a:9€%.i:Lcation t'Oat the prolect obtain 5 ea::itnco in the � .=a.}?� future based oa :-.Lc�'�'� 1. t1Tg ' nxs dv- cr yl`i - ._ it .%. �, .i 75v.,,ex' i to -d t .-€ R ,SR --fi't r .,, R>R "M-. 3...R. L..i of 4.a v Site Plan K45V l Vii✓ 5p 1 -scavion _ Pht tsecond problem created by denial cf the varicsti is that ri sc lvoa.r could assert t 01:4 _al variance, e i» facto tax..s„no of him property. Hie ,_, s zIn t could be aa follows, A. driveway leading from the road ":*:_'. ?:'.g i s r. = [iL? .�. �'?4 L? ;'. C) `d`5' n t 7 t and . . _ 4, z bongo c ntiel enact-aro; Without the ability al.l :€'3r pp ..,v construct � i_ } ..GL � 1 4 aup pert the -`',s:icpebant a !eXt i"` �TP�, _'z wall to the � 1�.� ,�°�; L.i s'� t�tMtf �'= I a �e"i ti?fl RiY con ;tot be bo 1 t i compliance 1�. t.n is ss i �} a4c'm�r EiLLi;als City - °t^'+. driveway, �� cannot built q s; c1 i. G - �;i's. �,'-... Without 2 d iv ay, a hoU a, ''not be i City compliance it t: . .ri'i` e ins-.rds ouch that; h flAS with ,:eeeonabio en'.tr- '3-'%tlo use of the rt y in violation of his zz n "m 9 nt rights a d n R., t`1Rn^ - i 1 n3 of prF, n.ya- compensation. �I ark not suggesting gi that i matter warvi ?ti 'yhAt .; -x yonin g+ . e with t1 a ogoertion, lust that _ 1" .� .®5reasonably €.i.. to maketh2��.a R,:;�.x�.�.Eu ��...id _. =r�t$Tt c a? - r: (q.4 th .i .ss conclusion. 1t 111Y ]0y he hai fx 1 `. _. hal f111 to t rk�il ... ��e �R d3 r. _ s=;9c,: Ar-i in this name s zr.% tbe denial o:. Sits Plan. Rovi.'3iti and var7 e nC e in the raver matte (2, C "ass'' 36V',t) . Tn. Fr"xl. tar, the Ci,:y d47- i ,,, he site Plan , LiOn, in p a;'t r oh grounds that 92a 1I kge 1600835 0 -2- CONFIDENTIAL T.Vg MATTRIAL !9 e=. naTeT TGs THIT ATTs+FSPdFv_CLIENT ANICVOR 1-1G :'-,' `"'C7=- t:-".� `:`eO-F. i i', .i:fl`.Jt r i=i iit . no NOT b1:CS+<i*'t;- HE. CONTE lj'F'L HL`P.Eor. Din mor rILE WET.. r"„ L OLV AOCE-3 ...Y.E C `JYiiu. 2.9? l 1:134M . R I CHARDS. WATSON #2- • ' 410 13103777286;g15/17... development 0f° the site would d Doge .yy is a�=a:�G a danger to s�,.> of dpi surrounding. i v dart 3 Daniel of thell ..r+§ COn . 0 use r health and safety resoone -s A recognised si i execution to t T n skin s 3.u14 i ?i}9s ` k`'a olio` ^hutch s a,.. •f. 4, r�}}�g l 210 ._al .. s� , 3d 1351 (198e)). In the at cae ani :43 Other hand, +i`a !`� - not have to .. :,;� '7 s ,. a'? �:=1 e any �= �?;;�'i_, � •, L �- � indicate iiL`Yi.: �-�i9 t _ r salt- 3 or t i t risk -_- � . tea � �aa ._, _. t�s,',�, »:L:+�� 5..,, ��t3 : his �'.�v'gG.`3' Structure itself. Th ColV17, tenp i _t re ."5 1 dirf.-Arnt from those ottuationo war- `'6t at c a r ii z`4 a ptIrition of a house into :J setback, a I those re . , v at o _ oo '?e.:Lz� he o onet �^1Ytsted J in the zr- ye as song an Ai: iii m do At-Al'ir f -t -o- G:.auL'�.r i {atsc a acre, the dsnial ,af t vV J ,s �. _. J t'k . br_v . zt .._£e ._orir�LLruoti°:' of -a the d F `_ aw: y np o t o building �q 3d �5 c _ 4 F 2 '--� �' ml's a.F.3 al,�: virtually preclude �1�4'�r or hi': ..=fi=t for ideas`.? ai p^-3.a:pL''c'.-.ba. If the commission di:•siaw,e 5 the proposed .c t yam, {�i,; d L. height, d $iqn Qt `!. °�i�'1, L`'z�retainingwan, _t would aeivieeh1. a for Lh.t3 w ;'lrit `sgien to x._t oee oonditions of pp s.z wax i a .- - ` h j ch would cthenge F. }.,e placement, i of -1-1t1 wall 'the. thvn.n Lry :tr th6 4r: -ire tr i a.t In 1 {a r!� nth o ^vr t'_in c?1u271�' avoid a denial Which would set th motion the iy3.xr lem and risks gat f- th above. aitA Plan Raaview With ntEnec t t..hr_- Pn7 ••-3: _-. c..� � '-� c"` a.; r:$�Si.I. _71'Q for 4its.Ps ai'i -Review, {.. .z .. i_- ,. Q'._`> has r•. 3c , ,L Rti nJ ¢ o %approve a ,�.' a"1r`T" t pt icev`,- s. nos -r=e a '^a.!��s rn.�, the t ; t� # f�Rt- �..s3 s - � � ��,.� s sue._,,, ? �.SY± L t-i rdts Ord l';S i`k�. e e t''h City Lan c ta' deny an s t i s s rii .� r �3 1a"% 8� i.ilia i � the £ an_3l oG i. deeg: not o.na,-- ::iz,i-IY the required jinthn s for approval. or s. ?j ot Hilt . •'`'ie?"'c4.3 £3 a"'z1ib ae•,_.i,.,s, s3 4.t.0 i, )L TheYafore- if 4 -he r - ..- x -. i•rs =44 ft'ror the 53_'3 or location n - 'Y h.1..' i 3 £ i x.�. a Lim w�L 7i pr opece structure, .z., i mow- t., >z grading i3;: she _ ` to nor e nv �'� �-' mks L�Y� t.� • v.• k a -erect t- the .;� Commission on zho'u,E.d ri'7"1-,x_ attempt to ' tisiop : onth # jo iS, that ar °v icy catiaa the application satisfy t'Los..: oonoerns and tEttim ; P a' tha required fir i rgzi of the Sitt Plan Review Ordinance S issai"' ix'.".`.bsa;9%r fez.- exemple, impose F d$ condition h building � i. a� pad he moved to �s,.� '=otira,' tTn: .xed ct; . Of= v h the lot, or thzt the house be. placed r•`Il a difrareht areoto the .ite mt, nnAt it face Oet' t•,i?t <<<• tai vi e`'; Of ai s r; ri resident. ,.. e[w `ry e 1r Of thsaa cond i t _P;n. .dot -`3 have 1,_ forth it record and h d ,� t = - set that auch `� ,• - �:.! +.. 1 i, based _yy Upon the i „9a dPi".L r3�.i.t_t.�`= f � changem necessary to satinfy the requ r '3 fiedinva of the w_ 1-T1 Review Oath .taap e. 11 no conr.9itiong C:... bo $20317 tge 168ms 0 I _ TNIC MATENAL to Jrnr.:T r , 1-1'12..A1-roi AN O !_p,i:wf":?T-;4 .iE antl=_ fa..�ic f ^C?-.iorr3aR _l -O THE. O TPNrr r.ws 1 be) ,-3nT FILE wrni PugtUO YAi'.af1E,i-: i3f FIECO.rlir'- = -3- CONFIDENTIAL S 3-12-32 11 :13AM ; RICHARDS, WATSON #2m 0 N F i i3 E N T I A L I t *vR nrt d to make th r �- ttho he project �J �taz .r-�£5 c'}'�._� �:o E,..'�,':e.`�T,e� l i'L`:�i.:-3'7 �74 , -he City -oUld ' {{�� .{ the that �i' .. ` the city would haFe t�y .ionfalc cda.Al yatw §she . A that t - 2 z i '+.+ against tn ohallsno P .- - - d _ i3 :7 �: iSk..'3C .o :yid a" With reengot to the tact that thim application is • o lAar-,, ,= f manufactured _,»'x? a - ' i ^`? 5 •ty e rxc_ ��% me t mite, ;'l i�%L,`?•xt! conventional gincaQ residence _ -. . Ts reni.a O._ ernm r `L Code t t5 ..� g � section � ��"z'� The t_.?x�-.m 4a spa can � �- _ sir _.ha sd�r:5 typos -`Et �'-.=wtv e -8f5 s 5s. 3 Chance c°%. it caLnot -�f51;^� s.,aid - h Inc SET dY_ tYno Of _ mdhatacturad exeentiom o± roof 'i: oi "n_ ? atuohoionn a.nd roof or ac sa -..l ws. M ?.ay e�€3 tr.._ t _theunit ,s_ g.^ For discueeIona On the s _y s ability to aj ti placezett of mss" ad housing unit4, pease T wr ' • n lu _.s _�.r i. � � e., to � �t`.�i1.�T" kaa �'m'r.3 �sstt tip. �G _r= thici - copyofh'r11C: L1 is AA you may r caii . the City ar:^r:a•ovgzu gvter request for lot'line rt oent regardi t and him s s`C s `- ��•� .. _�...a..�?, a��', ..-a�a. _� certain d 1"*��, approval, titi� city �rt^�£!4 tea • -,-'!-- .a_ .�. a6s eats that 7era to �j t- �-�� z >., time e o r: Wag originally !;e - .1971- .. ma- Colymar has subsequently challenged th.a CIhy .V ..a ..ee atio'ority to jsvioot Tv``v.._t...•a Fil a _£.- �. Li�Ok az part:of a lot iii=_ edlue lt. That cane iN :still pending And the lot limt..; aditl5ttuantl. has not been ecor ' C&ed S oos's?O11FAiitlyl Hr. t C4':.i. 'h t ° cu..r: t. 3ppiiac� xo r us . h Original to ei'..T-1 t d94iat d lot un it '.?2':^ ;�i not ?`L� ri The City's 't1 for r+onarV anproval y 4``L - , a second and. preba i t y r Y :p } r Ammortunty to obtain sone of the periMetar � , %a t s. n_ x �. Section 66495,34 I9 d A city p`4'�e3 d-. r � from .P_fS'`i,.',�-GT3 {Y any approval a eC s 'xe,„ o tae e,o zany .. ht • Y: 4•A- t,.a d§ sd ,fm 7of ia.= . 0611'i "a1 from h di' sinn, in `iz4a. a"iµ.jaf n., "'rsru.sf.iGos of t,...< cat i t fan�i. "', vim X 3 2' o _ s., - by 't ar_ 'tom] "£ D. yl Y health l -. si v -) , M tra y i..rn allv dYS a .. i ..j a city,, `-'r ih -ys &lS�e:. - r - fcreated r t LS' s^r£ d , rl to n .: e rep . t S- E`,.t` manAct t i, f j €" `..� ordinances, y. ,� violation r.� az•e owned i.- the Bartle parson when N violation occurred, a �t.ly.3] 3"�C' � �d >:'P„„:}Ei e t3 LFch c+.}rta,.u. :'.'u i d apr, i.cu;� 1, t the ct3,'s ;°.?'1t 1'tl: t : the vans k lanan 0 -4- CONFIDENTIAL THIM ►+tArt"R:AL le susJecn i o The. A t'; fir4e- r iLIE T At4r- 101 i+,€ A a ai:;t'SiyE-- 14,€*K PRO+ii� l3' ? 7�cdtV+ Q . 00 NOT LI C OG.m !, ri 9 <'w' £.w-,--„ i £ri;; ��i+�Yche m r3 a's£RsL7r, a ^-O NOT PEL .Ym-{ PUaa ;.Ca y ACC cn�IRLE R c- . 131U3777268i'41t/17 SFNT 3-19-92 ;11:14AM ; R [CHARDS WATSON #2-; LC O N P I DENT AL 13103777288;417/17, time Ca ve o,ji n{_ g, .t i. a for _,tit- leis that project is submitted to we bOlieve that t, r a .� ri m:certain y t 45 9 w ice'._` b'x,: Q;!?.� tir r ' r r _ j t -i`P�`'" me',..i�.5" r,�, m.or^ytm ,t, t Ri» m th ina r�/ p^ -£�s o tr ii° we the I" rc ,tfl ru g i c map 1 o �.. �9*r.s .^_ �^; rP' �'"�1'at � ,' .;®'La kii-�� violation r �"j r_t'6°ta�`�+ ..,'� 4 ntta E{3 ma and hu a vy t 3.d O -z bbl f !..'4. 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Attachmrar,t cc. ersig Nea1ls, City Manager L.=7a Ungar Planner a., oze311 kge 1644815 •-5- fis4i8 rvl a n c �� l _______________ D hd Y f f0 L -- I �'+`i_ '�';�a„r_�1'kgsc�sK L'+4�oCilr,"'-:' � 711 Tlif-- 3 =.O NOT %=Ws`�L.--s.-s,+ etmo q .gs -,----------.,---------- NOT FILE - -�� '-��'-e'-=�'tilIFil3a aa�e�yG. j ' _ `sr'siri PUji.iCLY AC::"g ifil a' AECt i SENT Telecopier 7021 ; 2-18-92 ; 2:28PM ; 2138280078-4 13103777288;- 1 • Professional Corporato 1 � s a f'� LO OR iRR Et, 3811-1 F LOOR . �.3 iFOR'.iIA 900.+ 1-1469 Switch : ar€d (213) 626-8484 ;.=ice. f'71E'1 r> �w�iS'9� T&ecopier `2 3) 6 0s _ 3 �L rAtim { - NF %i?^MAT ON CONTAINED i s` -AC;" .}L£" MESSAGE IS FFIIVtLEGED g CE € --tp E ;s xi 1- w ': : f N INTENDED ONLY O € HP USE O T-IE ii' € Nr,'ED RECIPIENT CONF1 ri 1 Sr�ii �t� NOTIFIED N FIELOW.. F YOU RE NOT F 1 NDG ET=} IEN YOU ARE HERESY NOTI i DISSEMINATION OP DISTRIBUTION OF 1 T THAT I! COPYING ��- -H€-, CO 41i�--,I A iui-+i On v}. B �p}�- I }�� . �I+J O, .� € ANO-7-(ONE OTHER N THE a r -z r€t IPECIPIENT;;a, .STRICTLY PROHIBITED. IF YOU HAVE COMMUNICATION O,� EP,„r PLEASE :. NOTIFY US ' RECEIVED §€!f'�� i !-o; �5 S..4lrif��i4 AT1i. !� '�`� EPSCR, ��ri�C a€�.s,iCCi'ii�'-€- t `Y �� TELEPHONE ANC.) PPETL,Ri THE CR, iN 1': _SAGE € US, ; THE Anii`€IEADDRESS VIA THE UNITED ED STATES POSTAL SERVICE. 6 r",1 Cita From: _ tit. — " 'rr9 r' -?F'4-1" Total Pag 's: (including this sheet): Do�miment(s Tei cop d: n9 _ate, / /�— f i - C}rtevS -.- r � l if4c ' 5., SENT _. TeIcopier 7021 2= • = 2 f 2:20PM ; 213626007814 13103777288;4 2 Dear am Do-, ..th,5 I,_.z.s,a Pa the Co to vilpi ns+s+r i -er €` Z -z tsY}}e Rev i -a m- `- om- rase � @ 18, 1992 and C. Colyaar Sit Plan ii _ -.. y. recent c e ��..v. �, pe {� for } 45 ia�3i-e'gt .$•i �.ro��- e. --�*�::u �: c�tln �-W YL plans J��i! LVi =_ tad to m Fyn r . av ; February 4 a i a -ta i n? ng wall. in came A.B a amrpr to ma becau ae at missa i }_- _ t y;:ou d be c . 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URBAN AND FNVIRONMLN1 Al PLANNiNC: C.C)NSULTA''. 1 S December 23, 1991 Mr. Craig Nealis City Manager City of Rolling•Hills 2 Portuguese Bend Road Rolling Hills, CA 90274 SUBJECT: ROLLING HILLS HOUSING ELEMENT Dear Mr. Nealis: 1 have reviewed the State Department of Housing and Community Development's (HCD) comment included a n lets the October ccopy oberS233, 1991 91ledraft Rolling Hills IIousing Element; I have as an appendix for your reference. The State's few comments almost wholly pertain to the issue of adequate zoning for the nine low and moderate income housing units identified as the City's regional need. In my opinion, the Housing Element well documents the overriding constraints to providing multi -family development in the City. I have prepared the following "response to comments" to clearly identify how each of the State's comments pertaining to affordable housing development are already fully addressed in the Element. I do however suggest a program be added to the element to address the State's concerns regarding implementation of fair housing policies, and have included proposed wording. HCD Comment: "The land inventory still does not include land zoned for multi -family housing or demonstrate how existing zoning allows the development of housing for low and moderate income households. In our opinion, in order to accommodate the City's share of the regional housing need for low -and moderate -income households, sites should be zoned at higher densities. The only two zones listed in the element provide for one and two acre minimum densities." Response: As described on pages 27 - 29 of the Housing Element, virtually all the land in Rolling Hills is subject to Covenants, Conditions and Restrictions (CC&Rs) established in 1936. These CC&Rs set forth two classifications of property and restrict the use of property in each classification to either only single family or single family and limited public use. Neither classification allows for the development of multi -family housing or for commercial, office or 747 CAS1 C,REfN STRFF 1 Sul i E 400 • PAS/1ULNA, CALIFOKN; % 91101 (818) :su4.0102 FAX (8181304 0402 &19 SUt1 FH VULCAN AVENUE SUITE 205 • ENCINITAS. CAI +FoRNIA 31024 019) 944-4194 FAX (big, 542-6043 Mr. Craig Nealis December 23, 1991 Page 2 industrial activity. Modifying the City's zoning to allow for increased residential densities would not alter the development limitations dictated by the CC&Rs. Hence, the City's zoning standards are not an effective constraint to housing supply. In addition to the CC&Rs, several environmental and infrastructure limitations preclude multi -family development in Rolling Hills; these factors are discussed on pages 34-35 of the Element. Soils and geologic conditions place great constraints on development in Rolling Hills. The City has experienced major landslides due to soil saturation and instability, and numerous active landslides continue to render significant areas of the City unsafe for development. New homes in Rolling Hills must utilize septic, tanks and leach fields for disposal of sanitary waste due to the lack of sanitary sewers in most of the City. Past experience suggests substantial care and restraint must be exercised in the expansion of any existing systems or the addition of new systems to avoid possible ground instability due to saturation of upper soil layers. This situation and existing infrastructure constraints act to limit densities in the City. HCD Comment: "The element's programs do not address the City's need for low -and moderate -income housing. Additional programs should be included which clearly indicate the actions Rolling Hills will take to implement the programs and which describe how the City will utilize its land use controls, regulatory concessions and incentives, and appropriate federal and state financing programs to facilitate the development of low -and moderate -income housing." Response: The Implementing Programs section of the revised draft Housing Element (pages 46-51) is substantially expanded to include a comprehensive list of programs the City intends to implement on concessions and plland use address its iregulatory s. Programs are included which utilize incentives, and federal financing programs to facilitate the development of low and moderate income housing. Such programs include: Congregate Housing for Seniors, an Assessment Sponsored SewerDistricts, andHousingRepair F g 1l o np and Bonus Program, Neighborhood Temporary Shelter on Landslide Sites. As described on pages 32-33 and in AppendixA of and a Element, housinglingi Hills is not eligible to receive funding under most State programs. The absence of an "in -need" population or deteriorated housing in Rolling Hills renders the City ineligible for most types of governmental housing assistance. In addition, high rental values in the City preclude the use of HUD rental assistance programs. The City will continue to contribute what federal housing monies it does receive through the CDI3G program to nearby Mr. Craig Ncalis December 23, 1991 Page 3 jurisdictions where land is less expensive to be explicitly used for the construction of affordable senior citizen housing. HCD Comment: "The element contains a density bonus program which appears to be inconsistent with State law because, among other things, the element does not include actions to mitigate the impact of the density restrictions of existing CC&Rs." Response: No provision of the State density bonus law (Section 65915-65918 of the Government Code) requires a jurisdiction to mitigate the impacts of Covenants, Conditions & Restrictions (CC&Rs) on the ability of that jurisdiction to grant a density bonus. It is not clear that the City has any legal authority to modify the development limitations imposed by the CC&Rs. The only relevant case law of which we arc aware involved courts which refused to enforce CC&Rs which imposed occupancy limitations baseld erace & and thniRs, there would If theoa retically tial there were a way for the City to modify t cost associated with both the litigation required to receive a court ruling, and e necessary compensation to property owners for the taking of their property rights. As noted on page 34 of the Element, the City lacks the resources to pay for such legal fees or property owner compensation, or to otherwise subsidize housing costs. HCD Comment: "The element should include program actions to address, and when appropriate and legally possible remove governmental constraints to the maintenance, improvement, and development of housing for all income groups (Section 65583(c)(4)). For example, current- zoning does not allow multifamily development. Land use policies are described in the element.but specific program actions to mitigate their impact on low -and moderate -income housing opportunities are not included. Response: As described on page 29 of the Housing Element, development in Rolling Hills is controlled through both City enforced zoning and privately enforced CC&Rs. City zoning does not in itself constrain housing development. Reducing zoning standards or increasing densities would not modify the development limitations dictated by the CC&Rs, which in effect control density. Thus, as demonstrated on pages 28-34 of the Element, there arc no actual governmental constraints to housing supply which it is appropriate and legally possible for the City to remove. The Housing Element does contain program actions to facilitate the defo lopmeSeniort of low and moderate income housing, including Congregate g and Density Bonus programs. In addition, we suggest the following be added to Mr. Craig Ncalis December 23, 1991 Page 4 the third paragraph on page 28 after the sentence which ends "split-level residences to allow greater height.": "These height limitations reflect the requirements of the CC&R's and therefore do not themselves constrain housing supply." HCD Comment: "Include a program action to promote housing opportunities for all persons (Section 65583(c)(5)). In our opinion, a fair housing program should include an information dissemination component to guarantee full utilization of the housing discrimination referral program. For example, the City could publicize the complaint referral agency through the local media, schools, libraries, the post office, the community center, or through housing advocacy groups. The element includes goals to address the above areas but does not include specific program actions to accomplish stated goals and policies." Response: We suggest the following program be added to page 51 of the Housing Element to implement the City's fair housing policy: "Fair Housing Program As a participating City in the Urban County Community Development Block Grant Program, Rolling Hills cooperates with the Fair Housing Congress of Southern California through the Long Beach Fair Housing Foundation to enforce fair housing laws. As a means of increasing public awareness of legal rights under fair housing laws, the City will advertise services offered by the Fair Housing Foundation, including housing discrimination response, landlord -tenant relations, housing information and counseling, and community education programs. Quantified Objective: Provide informational brochures at the public counter and local library, and place periodic advertisements in the local newspaper. Funding Source: CDBG, City budgets. • Mr. Craig Ncalis December 23, 1991 Page 5 Responsible Agency: City Planning Department. Implementation Time Frame: Onc Year." We look forward to adoption of the IIousing Element. Sincerely, -"Kam.AA../ u..1LAAAve— Karen A. Warncr, AICP M584.02/c *STATE Of CAL,FCR MA • 8LIS:N£SS. TFUNSPOR•ATIGN AND HO S14O AGENCY • DEPARTMENT ONGHOo SIINGEAND E oP COMMUNITY DEVELOPMENT DIVISION OF HOUSI ENT 1800 THIRD STREET. Room 430 Y.O. BOX 952453 SACRAMENTO, CA 94252.2053 (916) 3233176 FAX (916) 323.6625 December 20,1991 Mr. Terrence Belanger City Manager City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, CA 90274 PETE WILSON, Govemof Dear Mr. Belanger: RE: Review of City of Rolling Hills' Draft Housing Element Thank you for submitting Rolling Hills' draft housing element, received for our review on November 6, 1991. As you know, we are required to review draft housing .elements and report our findings to the locality (Government Code 65585(b)). Our review was facilitated by telephone conversations with the City's consultant, Karen Warner, including one on December 18, 1991. This letter summarizes the results of that conversation. The Rolling Hills element amendment respondsr. ntouso e of r opinion, issues in our December 12, 1989 review 3e however, there are several areas which require revisions to bring the element into compliance with state housing element law (Article 10.6 of the Government Code). In particular the element still does not include adequate sites to accommodate low- and moderate -income households in the City. The element should: 1. Identify adequate sites available for the construction of housing to meet the City's identified needs (Section 655583 (c)(1)). The sites identified for potential residential development should be able to accommodate housing which will meet the projected need by income level. The land inventory still does not include land zoned for multifamily housing or demonstrate how existing zoning allows the development of housing for low- and moderate -income households. In cur opinion, in order to accommodate the City's share of the regional using need for low- and moderate -income households, l . Mr. Terrence Belanger Page 2 should be zoned at higher densities. The only two zones listed in the element provide for one and two acre minimum densities. 2. Include additional programs to assist in the development of housing for low- and moderate -income households (Section 65583(c)(2)). The element's programs do not address the city's need for low- and moderate -income housing. Additional programs should be included which clearly indicate the actions Rolling Hilts will take to implement the programs and which describe how the City will utilize its land use controls, regulatory concessions and incentives', and appropriate federal and state financing programs to facilitate the development of low- and moderate -income housing. The element contains a density bonus program which appears to be inconsistent with State law because, among other things, the element does not include actions to mitigate the impact of the density restrictions of existing CC&Rs. 3. The element should dt�andlegally possible,remove include l mactions to address and, when appropriate governmental constraints to the maintenance,. improvement, and development of housing for all income levels (Section 65583(c)(4)). For example, current zoning does not allow multifamily development. Land use policies are described in the element but specific program actions to mitigate their impact on low- and moderate -income housing opportunities are not included. 4. Include a program action to promote housing opportunities for all persons (Section 65583(c)(5)). In our opinion, a fair housing program should include an information dissemination component to guarantee full utilization of the housing discrimination referral program. For example, the City could publicize the complaint referral agency through the local media, schools, libraries, the post office, the community center, or through housing advocacy groups. The element includes goals to address the above areas but does not include specific program actions to accomplish stated goals and policies. Mr. Terrence Belanger Page 3 We understand that the City has scade aofecurrenttlandnot use address housing needs through policies and programs, but has made a commitment tthroo assisting low- and moderate -income households the City it still arrangements with the City of Lomita. However, responsible for accommodating its regional share of identified need in the City. If you have We hope our comments are helpfiease contactl to the yWilliam Andrews any questions bout ou323-7271n. We look forward to receiving a of our staff at (916) ursuant to Government Code Section copy of the adopted element p 65585(h). In accordance with requests pursuant to the PublicRcords s Act, we are forwarding copies of this letter to the persons organizations listed below. Sincerely, e?-. 40e" Thomas B. Cook Deputy Director Housing Policy Development cc: Karen Warner, Cotton Beland and Associates Carlyle W. Hall, Hall & Phillips Law Firm Jonathan Lehrer-Graiwer, Attorney at Law Western Center on Law & Poverty Fair Housing Council of the San Fernando Valley es Mark Johnson, Legal Aid Foundation of Los Angel Ana Marie Whitaker, Ca ornia Foundataon of1Long1Beachmona Aid Dennis Rockway, Legal Council David Rooher, California Housing Maya Dunne, City of Irvine Joe Carreras, Southern California eyssociation of Governments Kathleen Mikkelson, Deputy Bob Cervantes, Governor's Office California fnPlanning andiResearc h Richard Lyon, ia Building Industry Kerry Harrington Morrison, California Association of Realtors Marc Brown, California Rural Legal Assistance Foundation Christine D. Reed, Orange County Building Industry Association Rob Wiener, California Coalition for Rural Housing Susan DeSantis, The Planning Center •L.\1 Li• .1 Li1 • .r • 1i .1. • it 1L11.y1\UJ. ltni ''1 • Ic.UG 0LENN R. WAT5ON ROBERT O. eeVEALY ,yWM L OEREMON cOUOLAB W. ARDUE MARK L L AMKCN ARNOL0 OIMON R{HARD H. OINEL BRYAN E. ADLER DAAOLD P PltrEA FRED A. FtNOYER THOMA®A ,REI ERO.. R. ALLAN e. ReNNETT 31- VeNL DORSEY WILLIAM L STRAYOZ 1A0neAT M. OOI.ArKeD ANYHOW S. WCW*Y MRCHELL E. AR0Orr riMOYHY L• NeureLD ROBERT F. C4 METER DREDDRY W. STEPANIOICH ROGKCLLe BROWN* DONALD STERN MICHAEL JENKING WILLIAM B. R:JO[LL DAVID L. GOHeN TERSRA R. TRACY CAROL W BANDA TEARY A. TRUMa )LL COLEMAN J. WALAH. JA. JOHN A. eeLCHER JEFPP. Y A. RABIN WILLIAM K. KRUMKR cUAT'S L 0.01RMAN STEVEN w.KAUFMANN MAMA JONES/ 1.10U. GREGORY M. KUNERT AMANDA P. $VAAKIND WILLIAM e. waYAUMVRA 0441-T WE18LE OANIA. ►. TORRES THOMAS M. IMO MICHAEL seAL RAINERIa ROBERT O. OECOON FAMI6AA ALESKO EAnRe WEAVER KIRIN 1 ENNIO Rosily D HARKS M ICHAEL ESTRAPA 3FRAT M. LORAN LAUR&NOIS. VAeNER OAYID P. WAITE CHR1dT “Qom STEVEN DRR DEBORAH R. MAKMAN apOTT K SHINTANI MICHAEL Q. Cr24-ANTIA5140 JACK a, anDLKOFF DAViD R.VOKEN e. TILDE. KIM DARYL T. TRAMIMA OHRI6TINA R. MRLTFLR eaRDIT e. ALAN PAY 4BLIT P. IRELAND RUSIN 0. WEINER RICHARDS, WATSON & QERSHON ATTORNEYS AT LAW A PAdf6S0 O�PATII November 5, 1991 CONFIDENTIAL THIS MATERIAL 18 SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE Wrn -i PUBLICLY ACCESSIBLE RECORDS. Mr. Craig Nealis City Manager City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 9027+, Re: Recent Housing Element Legislation RIOHARD RI HARflS (tale-1aW TruR}Y-EIOHT11 FLOOR Ma eoLRM HOPE STREET LOS ANc ELEB, OAUPORNIA 40071.14e pia) dee-8464 TEL.EcOP1ER c21ai e4ddo7a 1910754 OUR FILE NUMBER R6980-001 [By Telecopier and U.S. Mail] Dear Mr. Nealis: As 1 promised in our telephone conversation last week, I write to apprise you of a recently adopted statute which changes the law governing housing elements. The statute applies to the adoption or amendment of a housing element after January 1, 1992. Thus, if the City is in a position to adopt the pending revision of its housing element before the first of next year, it may wish to do so. If the City wishes to adopt its element before January 1, 1991, it will have to act promptly to meet the various notice requirements. I have discussed these deadlines with Lola Ungar and Karen Warner and it appears that a fear ,ible, though tight, hearing schedule can be developed. If the element is not adopted before the first of the coming year, it must be revised to comply with the legal requirements discussed below. Senate Bill, 1019, sponsored by Senator Leroy Greene, was signed by the Governor on October 14, 1991 and was chaptered as Chapter 889 of the Laws of 1991. It adds three new requirements to the process of adopting a housing element. First, and most importantly, the legislation amends Government Section 65583(c)(i), which describes the requirements for the housing program portion of an element, to add the following language: JG.\ i ti T RICHARDS, WATSON & GERSON 11- .J1 • 1JV:\ =_ Jrit..:00•m 0; CO IDENTIAL Mr. Craig Nealis November 5, 1991 Page 2 THIS MATERIAL 18 8U8JECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. "Where the inventory of sites, pursuant to paragraph (3) of subdivision (a), does not identify adequate sites to accommodate the need for groups of all household income levels pursuant to Section 65584, thg programshall provi a for sufficient sites with zoning whieh rermits owner-accuDied nd rental mul ifamily righ including density and development standards, which could accommodate and facilitate th easibility of housing for v ery tow and low-income households. For purposes of this paragraph, the phrase 'use by right' shall mean the use does not require a conditional use permit, except when the proposed project is a mixed -use project involving both commercial and residential uses. Use by right for all rental multifamily housing shall be provided in accordance with subdivision (f) of Section 65589.5." (Emphasis added.) Government Code Section 65589.5(f) provides: "Nothing in this section shall be construed to prohibit, a local agency from requiring the development project to comply with development standards and policies appropriate to ancc9nsistent with meetinct the auantified objectives relative to the development of housing, as required in the housing element pursuant'to subdivision (b) of Section 65583. Nor shall anything in this section be construed to prohibit a local agency from imposing fees and other exactions otherwise authorized by law which are essential to rovide necessary psdblic services and facilities to the development project." (Emphasis added.) This apparently means that if the City's housing element should conclude that the City lacks sufficient vacant land to provide all the very low- and low-income units assigned by the Regional HousingNeeds Assessment (RHNA), the element must commit the City to permit multifamily housing and to allow such housing without requiring a conditional use permit. The October 23, 1991 Draft Housing Element now under consideration concludes at page 38 that the 40 units required by the RHNA can be accommodated on 59 available building sites in the City. Accordingly, this draft does "identify adequate sites to accommodate the need for groups of all household income levels" and the first new requirement of Senate Bill 1019 may not affect the proposed new element. However, critics of the element could argue that these sites are not "adequate" to meet the City's affordable housing need because the element provides insufficient guarantees that residential 1L.�Y1 u. t RICHARD. WATSON & GERMAN CONFIDENTIAL Mr. Craig Nealis November 5, 1991 Page 3 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. the nine affordable units required by the RHNA can in fact be developed. If a court were to accept such a conclusion, the City could be compelled to permit multifamily housing in the City. This risk can be deferred until the 1994 revision of the housing element by adopting the pending draft prior to the end of this year. The changes to the housing element law effected by Senate Bill 1019 are significant for the future as well: if the City is unable to identify adequate sites to accommodate the housing required by the 1994 or later editions of the RHNA, it may be compelled to permit multifamily housing in the City, perhaps on the school site or on other land not subject to the CC&R's of the Rolling Hills Community Association. Accordingly, Senate Bill 1019 increases the importance of the 1994 RHNA. when that document is released by the Southern California Association of Governments (SCAG), the City will be well advised to review it with care and to seek to persuade SCAG to assign a RHNA goal to the City which can be accommodated on the available land in the City. The statute makes other, less consequential changes to the housing element law. Government Code Section 65400(b) now requires an annual report from the Planning Commission to the City Council on the "status of the [general] plan and progress in its implementation, including the progress in meeting its share of regional housing needs determined pursuant to Section 65584." This statute adopts a new section 65588.5 which requires such reports to be filed with the state Department of Housing and Community Development (HCD) within thirty days of their receipt by the City Council. The statute does not specify any consequence for a failure to file such a report with HCD. The statute adds a section 65589.7 which provides that adopted and amended housing elements "shall be delivered" to public and private water suppliers and that those suppliers shall give a priority to projects which "help meet [the locality's] share of the regional housing need for lower income households as identified in the housing elemnent.". The section states that failure to deliver an element to a water provider "shall not invalidate any action or approval of a development project." Finally, the statute amends Government Code Section 65583(c)(4) to require an elements housing program to include measures to "conserve and improve the condition of the existing affordable housing stock, which nay include addressing ways to mitigate the loss of dwelling units demolished by public or private action." Only the underscored phrase is added, and even this does not appear to be mandatory. D - t71 5.4ck'tii k!Cti. RD , it I J\ ;2- 3777266;; RICHARDS, WATSON & ©ERS N CONFIDENTIAL Mr. Craig Nealis November 5, 1991 Page 4 THIS MATERIAL 18 SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. 00 NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. 1 am informed by Ernie Silva, lobbyist for the League of California Cities, that additional housing legislation will likely be considered by the Legislature in the coming year. As such bills may make further inroads into the City's discretion with respect to land use regulation, the City may wish to contact the League to ensure that its viewpoint is adequately represented. It is my own sense that the viewpoint of small, largely developed communities like Rolling Hills was not well represented in the legislative discussions of Senate Bill 1019. Please call me or Mike Jenkins if you have any questions about the advice stated here. Very truly yours, M,chael G. Colantuono cc: Michael Jenkins Karen Warner MGC:rage 1910754 • • edy o/ f2 PP S Jd,•?� INCORPORATED JANUARY 24, 1957 CONFIDENTIAL DATE: NOVEMBER 26, 1991 ATTENTION: CRAIG R. NEALIS, CITY MANAGER FROM: LOLA M. UNGAR, PRINCIPAL PLANNER NO. 2 PORTUGUESE BEND ROAD ROLLING HILLS, CALIF. 90274 (213) 377-1521 FAX: (213) 377-7288 SUBJECT: SKATEBOARD RAMP AT 25 CABALLEROS ROAD MR. CHARLES MICHAEL STOKER AND MRS. MARGARET LOUISE STOKER I talked privately with Deputy District Attorney John Bax after our meeting with the Stokers on November 21, 1991 and then, on November 25, 1991. He feels that Mr. Stoker's ego is a huge problem and that this case could be a potential problem because of it. Mr. Stoker is obstinate and vengeful. He even told the Stokers that if they do proceed with the City in coming to some solution that Mr. Stoker not take the lead because his personality is very abrasive and rubs people the wrong way. On the other hand, Mr.. Bax said that Mrs. Stoker is more amenable and reasonable and could go home and ask her sons whether they think the family should pursue keeping the ramp and might decide to take it down. Mr. Bax feels that if this goes to court, the defense will at first parry with a requirement that every swing set, play house and skateboard ramp in the City be surveyed. I reminded Mr. Bax of the size of this ramp (larger than 120 square feet) and that most playground structures (i.e. swingsets and jungle gyms) are smaller than 120 square feet and would not need a building permit because of theltl`size. (Structures larger than 120 square feet require a building permit). Mr. Bax also said that he did not think the case would take 2 years as the Stokers would like but perhaps, 1-1/2 years, and that the City should be aware of the expense of such a case. Mr. Bax feels that whatever the Stokers decide, that we do not delay this case any further and to give them notice as soon after January 2, 1992 as possible. He reminded us, that as we proceed with this case that we always keep in our minds how such a case will look in the L.A. Times as a feature story. • • CONFIDENTIAL MEMO 25 CABALLEROS ROAD PAGE 2 Mr. Bax said that if Mr. Romig backs off and says.that everything is okay, and at that time we back off and don't prosecute, we won't be able to come back later with the same case if Mr. Romig sells his home and the new owners complain about the skateboard ramp. (This is an example of letting a complaining witness control the case, which he says we must not do). Mr. Bax told me that before we prosecute, we should also ask to inspect the property with the Building Inspector or provide a scaled drawing. The Building Inspector and myself will need to measure and photograph everything' related to the case on the property for a better look and to determine the location of the ramp. If the Stokers say, "No!" then we can get an "Inspection Warrant" through Mr. Bax. Mr. Bax is sorry that we have no formal Resolution regarding the - skateboard ramp. He said it would also be better if a skateboard ramp or "recreational facility" was included in the CUP section of the Code (which I told him we were updating). • City 0/ PF,.S JJ,Pf, • INCORPORATED JANUARY 24, 1957 CONFIDENTIAL DATE: NOVEMBER 26, 1991 ATTENTION: CRAIG R. NEALIS, CITY MANAGER FROM: LOLA M. UNGAR, PRINCIPAL PLANNER NO. 2 PORTUGUESE BEND ROAD ROLLING HILLS, CALIF. 90274 (213) 377-1521 FAX: (213) 377-7288 SUBJECT: SKATEBOARD RAMP AT 25 CABALLEROS ROAD MR. CHARLES MICHAEL STOKER AND MRS. MARGARET LOUISE STOKER I talked privately with Deputy District Attorney John Bax after our meeting with the Stokers on November 21, 1991 and then, on November 25, 1991. He feels that Mr. Stoker's ego is a huge problem and that this case could be a potential problem because of it. Mr. Stoker is obstinate and vengeful. He even told the Stokers that if they do proceed with the City in coming to some solution that Mr. Stoker not take the lead because his personality is very abrasive and rubs people the wrong way. On the other hand, Mr. Bax said that Mrs. Stoker is more amenable and reasonable and could go home and ask her sons whether they think the family should pursue keeping the ramp and might decide to take it down. Mr. Bax feels that if this goes to court, the defense will at first parry with a, requirement that every swing set, play house and. skateboard ramp in the City be surveyed. I reminded Mr. Bax of the size of this ramp (larger than 120 square feet) and that most playground structures (i.e swingsets and jungle gyms) are smaller than 120 square feet and would not need a building permit because of thetfi "'size. (Structures larger than 120 square feet require a building permit). Mr. Bax also said that he did not think the case would take 2 years as the Stokers would like but perhaps, 1-1/2 years; and that the City should be aware of the expense of such a case. Mr. Bax feels that whatever the Stokers decide, that we do not delay this case any further and to give them notice as soon after January 2, 1992 as possible. He reminded us, that as we proceed with this case that we always keep in our minds how such a case will look in the L.A. Times as a feature story. CONFIDENTIAL MEMO 25 CABALLEROS ROAD PAGE 2 Mr. Bax said that if Mr. Romig backs off and says.that everything is okay, and at that time we back off and don't prosecute, we won't be able to come back later with the same case if Mr. Romig sells his home and the new owners complain about the skateboard ramp. (This is an example of letting a complaining witness control the case, which he says we must not do). Mr. Bax told me that before we prosecute, we should also ask to inspect the property with the Building Inspector or provide a scaled drawing. The Building Inspector and myself will need to measure and photograph everything related to the case on the property for a better look and_ to determine the location of the ramp. If the Stokers say, "No!" then we can get an "Inspection Warrant" through Mr. Bax. Mr. Bax is sorry that we have no formal Resolution regarding the• skateboard ramp. He said it would also be better if a skateboard ramp or "recreational facility" was included in the CUP section of the Code (which I told him we were updating). 0C1© &tQ d ca ea c 4cly*6 ch #4. 00— / vi NC: %r dt95 (Tv Fo b 'we, eez aio a'AP5rP, G ale ec ' ,D (moo f C O N F 1 D E —N IIICHARDS, WATSON & GERSH• MEMORANDUM To: Chairman Roberts and Members of the Planning Commission FROM: Michael G. Colan %i of A sistant City Attorney DATE: November 15, 1991 SUBJECT: Adoption of the 1991 Housing Element On November 19, 1991 the Commission will consider amendments to the housing element of the general plan. The purpose of this memo is to provide background and legal advice with respect to this matter. After the housing element was adopted in 1990, this office determined that it could be strengthened against legal challenge. On the basis of this advice, the City retained the services of Cotton / Beland / Associates, Inc. to prepare an amended element. The product of their efforts is before you this evening. This draft does not significantly change the policies set forth in the prior element. Rather it adds additional data, a few more housing programs, and greatly strengthens the analysis make it impossi ble to housing supply which may of the constraints in which has been supply all the af fordable housing for the City to pp Y assigned to the city by the Regional Housing Needs Assessment (RHNA) of the Southern California Association of Governments (SCAG) . We conclude that this draft is significantly more likely to withstand a legal challenge than its predecessor. In addition, we believe this draft is as legally defensible as any housing element which does not commit the City to developing, or facilitating the construction of, affordable housing. However, unless the City is willing to establish new planning goals and to plan for the construction of the nine affordable units required by the RHNA, there remains a risk that the element will be invalidated if challenged. Notably, the element provides essentially no discussion of the Palos Verdes Peninsula Unified School District property outside the gates of the City (the La Cresta School site). It is our understanding that this site is not constrained by the covenants, conditions, and restrictions (CC&R's) of the Rolling Hilts Community Association, and is accessible from public streets, served by adequate utilities, and is not constrained by topographical and geotechnical characteristics that would support MGC:mgC 1410764 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO Tre ATTORNEY -CLIENT AND/ORTHE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. AICI IARDS, WATSON & GEn3Fi1. MEMORANDUM FC-7:—)NFIDENTIALill Chairman Roberts and Members of the Planning Commission November 15, 1991 Page 2 a conclusion that the site is not suited for housing. Because neither the consultant nor City staff could conceive of such a justification for failing to plan for housing on this site, a decision was made not to discuss it within the element. As the element is now drafted, the only reference to the school site is the statement at the bottom of page 36 of the October 23, 1991 draft that: "Non-residential properties in Rolling Hills are limited to public and institutional uses. None of these uses are anticipated to be redeveloped within the time frame of this element." while this statement is literally true (since the District's short-term intentions are not clear), the failure to plan for housing on the school site may make the element vulnerable to legal challenge. It is not clear that the State Department of Housing and Community Development (HCD), which is now reviewing the draft element, is aware of the existence of the school site. Thus, HCD may not comment on this issue. There remains a risk, however, of a legal challenge to the housing element brought by a legal advocacy group or by some other party -- perhaps by the school district itself in an effort to maximize the market value of this property. Such a suit could raise the element's failure to provide for housing on the school site. If such a challenge is brought, the element's silence as to the school site may be quite difficult to defend. Because of recent legislation, we recommend that the element be adopted before year's end, if possible. On October 14, 1991, the Governor signed into law Senate Bill 1019, which imposes certain new requirements for housing elements. The legislation applies to any housing element adopted or amended after January 1, 1992. Principal among the provisions of the new statute is a requirement that, if an element fails to identify adequate sites for the provision of the housing required by the RHNA, the program portion of the element must: "provide for sufficient sites with zoning which permits owner -occupied and rental multifamily residential use by right, including density and development standards, which could accommodate and facilitate the feasibility of housing for very low and low-income households." MGC:mgc 1910784 CONFIDENTIAL THIS MATERIAL 18 SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. 00 NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE- RECORDS. CONFIDENTIAL -RICHARDS, WATSON & GERS. MEMORANDUM Chairman Roberts and Members of the Planning Commission November 15, 1991 Page 3 This would appear to require the City to amend its zoning ordinance to permit multifamily housing in the City, if the element does not identify adequate sites for the nine affordable units and 31 market -rate units required by the RHNA. The draft element concludes at page 38 that the 40 units required by the RHNA can be accommodated on 59 available building sites in the City. Accordingly, this draft does "identify adequate sites to accommodate the need for groups of all household income levels" and the principal new requirement of Senate Bill 1019 may not affect the proposed new element. However, critics of the element could argue that these sites are not "adequate" to meet the City's affordable housing' need because the element provides insufficient guarantees that the nine affordable units can in fact be developed. If a court were to accept such a conclusion, the City could be compelled to permit multifamily housing in the City. This risk can be deferred until the 1994 revision of the housing element by adopting the pending draft prior to the end of this year. For this reason, we recommend the City adopt its new element before the end of 1991 if it is possible to do so. On the basis of this advice, staff has noticed a public hearing before the City Council on this draft for December 23, 1991. Accordingly, we recommend that the Commission forward the element and the Commission's recommendations to the City Council as soon as possible. The State housing element law treats all cities alike, even though the circumstances of cities differ dramatically. Uniform application.of rules which are suitable for Los Angeles, Long Beach, or Hawthorne to cities like Rolling Hills and other small, bedroom communities makes little sense. At present, state law fails to recognize that not every city can accommodate a diversity of uses. This quandary will require the development of a long-term strategy wholly aside from the adoption of this element. Accordingly, this element represents a beginning, and not the end, of a process that we hope will lead to a more satisfactory resolution of these complex social issues. Please feel free to contact me, Michael Jenkins, or Kevin Ennis if you have questions or comments about the advice stated here. Kevin will be in attendance at the Commission's MGC:mgc 1910184 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. C O N F I D E N T I A L �RICI IARDS, WATSON 8 GERSH MEMORANDUM Chairman Roberts and Members of the Planning Commission November 15, 1991 Page 4 meeting on November 19, 1991 and will be able to provide additional advice at that time. cc: Mayor Pernell and Members of the City Council Craig Nealis Lola Ungar Michael Jenkins Kevin Ennis MGC:mgc 1910784 CONFIDENTIAL THIS MATERIAI. I3 SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. 00 NOT DISCLOSE THE CONTENTS HEREOF. 00 NOT FILE WITH PUBLICLY ACCESS:1IBI.E RFCORDS, • RESOLUTION NO. oit.-?, A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ROLLING HILLS RECOMMENDING CITY COUNCIL APPROVAL OF THE 1991 HOUSING ELEMENT OF THE GENERAL PLAN OF THE CITY OF ROLLING HILLS AND ADOPTION OF AN ASSOCIATED NEGATIVE DECLARATION PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT THE PLANNING COMMISSION OF THE CITY OF ROLLING HILLS DOES HEREBY FIND, ORDER, AND RESOLVE AS FOLLOWS: SECTION 1. Pursuant to the requirements of Government Code Section 65588(a), the Planning Commission of the City of Rolling Hills has reviewed the Housing Element of the General Plan of the City and has determined that it is appropriate to revise that Element to reflect the results of this review. SECTION 2. The City prepared a draft revised Housing Element and submitted it to the state Department of Housing and Community Development ("HCD") for review on October 30, 1989 pursuant to Government Code Section 65585(b). HCD commented on the draft in the form of a letter dated December 12, 1989. The City has reviewed those comments and revised the draft in response to those comments. SECTION 3. Pursuant to Government Code Section 65352, copies of the revised draft have been provided to the Cities of Rancho Palos Verdes and Rolling Hills Estates, the County of Los Angeles, and the Los Angeles County Local Agency Formation Commission. SECTION 4. Pursuant to the provisions of the California Environmental Quality Act, Public Resources Code Sections 21000 et seq. ("CEQA"), the State CEQA Guidelines, California Code of Regulations, Title 14, Sections 15000 et seq., and the City's Local CEQA Guidelines, the City prepared an initial study and determined that there was no substantial evidence that the adoption of the revised Housing Element may have a significant effect on the environment. Accordingly, a negative declaration was prepared and notice of that fact was given in the manner required by law. SECTION 5. A duly noticed public hearing before this Planning Commission to consider the proposed negative declaration and the revisedHousing Element was held on November 19, 1991 at which time public comments on the negative declaration and revised Housing Element were received by the Commission. SECTION 6. Based upon the facts contained in this resolution, those contained in the staff reports and other a643.mgc components of the legislative record, those contained in the proposed negative declaration and revised Housing Element, and the public comments received by the Commission, the Planning Commission hereby finds as follows: (a) The Planning Commission has considered the proposed negative declaration, the public comments upon it, and the other evidence before the Commission and finds that there is no substantial evidence that the adoption of the revised Housing Element will have a significant effect on the environment. (b) City staff and the Planning Commission have reviewed the Housing Element Guidelines adopted by HCD pursuant to Section 50459 of the Health and Safety Code and the findings contained in HCD's comment letter of December 12, 1989 and the draft Housing Element has been changed to respond to those findings. (c) The revised Housing Element is in full, compliance with the requirements of Government Code Sections 65580 - 65589.8. (d) The revised Housing Element is consistent with the other elements of the General Plan because the revised Housing Element uses the land use designations of the Land Use Element and those designations in turn are reflective of, and consistent with, the policies and provisions of the remaining elements of the General Plan. (e) The housing goals, objectives, and policies stated in the revised Housing Element are appropriate for the city of Rolling Hilts and will contribute to the .attainment of the state housing goal. (f) The adoption of the revised Housing Element will aid the City's efforts to assist in the development of housing for all members of the community. (g) For the foregoing reasons, the adoption of the revised Housing Element is in the public interest. SECTION 7. The Planning Commission of the City of Rolling Hilts hereby recommends to the City Council of the City of Rolling Hills that the proposed negative declaration be adopted and that the revised draft Housing Element be approved as the 1991 Housing Element of the General Plan of the City of Rolling Hills.. This resolution shall, be transmitted to the City Council 6643. Mee and shall constitute the written recommendation required by Section 65354 of the Government Code. PASSED, APPROVED AND ADOPTED this day of 1991. Chairperson ATTEST: Secretary a643.mge •aiy ol t1 S INCORPORATED JANUARY 24, 1957 November 15, 1991 Mr. Allan Roberts, Chairman Planning Commission 7 Southfield Drive Rolling Hills, CA 90274 Dear Chairman Roberts: NO. 2 PORTUGUESE BEND ROAD ROLLING HILLS, CALIF. 90274 (213) 377-1521 FAX: (213) 377-7288 CONFIDENTIAL Attached is a confidential correspondence from Michael G. Colantuono relative to recently adopted legislation which has a major impact on cities' housing elements. Mr. Colantuono represents our City Attorney's office in housing element matters. As you will notice in the attached correspondence, Chapter 889 of the State of California laws of 1991 drastically affects the California Government Codes to allow multi -family housing without a local Conditional Use Permit process. Chapter 889 applies to housing elements which are adopted after January 1, 1992. The City's revised Housing Element will be presented to the Planning Commission for consideration at your regularly scheduled meeting on Tuesday, November 19, 1991. We have advertised for City Council review of the Housing Element to take place on Monday, December 23, 1991. We will, of course, discuss this further at the meeting of November 19. Your review and confidential handling of the attached correspondence is appreciated. Thank you for your cooperation. Sincerely, Craig R. Nealis City Manager copy: M. Jenkins K.Ennis City Council L. Unger', /jc .f GLENN R. WATSON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON RICHARD H. DINEL ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER THOMAS A. FREIBERG. JR. ALLEN E. SENNETT STEVEN L DORSEY WILLIAM L STRAUSZ ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. BTEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WILLIAM B. RUDELL DAVID L COHEN TERESA R. TRACY QUINN M. BARROW CAROL W. LYNCH TERRY A. TRUMBULL COLEMAN J. WALSH. JR. JOHN A. BELCHER JEFFREY A. RABIN WILLIAM K. KRAMER CURTIS L COLEMAN STEVEN H. KAUFMANN MARSHA JONES MOUTRIE GREGORY M. KUNERT AMANDA F. BUBSKIND WILLIAM E. MATBUMURA SCOTT WEIBLE DANIEL P. TORREB THOMAS M. JIMBO MICHELE BEAL BAGNERIB ROBERT C. CECCON PAMELA A. ALBERS SAYRE WEAVER KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA EFRAT M. COGAN LAURENCE S. WIENER DAVID P. WAITE CHRISTI HOGIN STEVEN R. ORR DEBORAH R. HAKMAN SCOTT K SHINTANI MICHAEL G. COLANTUONO JACK S. SHOLKOFF DAVID A. BUCHEN B. TILDEN KIM DARYL T. TESHIMA CHRISTINA R. MELTZER BIRGIT A HUBER S. ALAN RAY JULIET F. IRELAND RUBIN D. WEINER II@IAV RICHARDS, WATSON & GERSHON t n _ ��1 ATTORNEYS AT LAW . NOv r� A PROFESSIONAL CORPORATION November 5, 1991 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Mr. Craig Nealis City Manager City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 Re: Recent Housing Element Legislation pL�1t�IG °t13 c►-r O R HARD RICHARDS (101 THIRTY-EIGHTH FLOOR 333 SOUTH HOPE STREET LOS ANGELES, CALIFORNIA 90071-1469 (213) 826-8484 TELECOPIER (213) 626-0078 1910754 OUR FILE NUMBER R6980-001 [By Telecopier and U.S. Mail] Dear Mr. Nealis: As.I promised in our telephone conversation last week, I write to apprise you of a recently adopted statute which changes the law governing housing elements. The statute applies to the adoption or amendment of a housing element after January 1, 1992. Thus, if the City is in a position to adopt the pending revision of its housing element before the first of next year, it may wish to do so. If the City wishes toadopt its element before January 1, 1991, it will have to act promptly to meet the various notice requirements. I have discussed these deadlines with Lola Ungar and Karen Warner and it appears thata feasible, though tight, hearing schedule can be developed. If the element is not adopted before the first of the coming year, it must be revised to comply with the legal requirements discussed below. Senate Bill 1019, sponsored by Senator -Leroy Greene, was signed by the Governor on October 14, 1991 and was chaptered as Chapter 889 of the Laws of 1991. It adds three new requirements to the process of adopting a housing element. First, and most importantly, the legislation amends Government Section 65583(c)(1), which describes the requirements for the housing program portion of an element, to add the following language: IliRICHARDS, WATSON & GERSHO CONFIDENTIAL Mr. Craig Nealis November 5, 1991 Page 2 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. "Where the inventory of sites, pursuant to paragraph (3) of subdivision (a), does not identify adequate sites to accommodate the need for groups of all household income levels pursuant to Section 65584, the program shall provide for sufficient sites with zoning which permits owner -occupied and rental multifamily residential use by right, including density and development standards, which could accommodate and facilitate the feasibility of housing for very low and low-income households. For purposes of this paragraph, the phrase 'use by right' shall mean the use does not require a conditional use permit, except when the proposed project is a mixed -use project involving both commercial and residential uses. Use by right for all rental multifamily housing shall be provided in accordance with subdivision (f) of Section 65589.5." (Emphasis added.) Government Code Section 65589.5(f) provides: "Nothing in this section shall be construed to prohibit a local agency from requiring the development project to comply with development standards and policies appropriate to and consistent with meeting the quantified objectives relative to the development of housing, as required in the housing element pursuant to subdivision (b) of Section 65583. Nor shall anything in this section be construed to prohibit a local agency from imposing fees and other exactions otherwise authorized by law which are essential to provide necessary public services and facilities to the development project." (Emphasis added.) This apparently means that if the City's housing element should conclude that the City lacks sufficient vacant land to provide all the very low- and low-income units assigned by the Regional Housing Needs Assessment (RHNA), the element must commit the City to permit multifamily housing and to allow such housing without requiring a conditional use permit. The October 23, 1991 Draft Housing Element now under consideration concludes at page 38 that the 40 units required by the RHNA can be accommodated on 59 available building sites in the City. Accordingly, this draft does "identify adequate sites to accommodate the need for groups of all household income levels" and the first new requirement of Senate Bill 1019 may not affect the proposed new element. However, critics of the element could argue that these sites are not "adequate" to meet the City's affordable housing need because the element provides insufficient guarantees that RICHARDS, WATSON & GERSHOT CONPIDENTIAL Mr. Craig Nealis November 5, 1991 Page 3 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBUCLY ACCESSIBLE RECORDS. the nine affordable units required by the RHNA can in fact be developed. If a court were to accept such a conclusion, the City could be compelled to permit multifamily housing in the City. This risk can be deferred until the 1994 revision of the housing element by adopting the pending draft prior to the end of this year. The changes to the housing element law effected by Senate Bill 1019 are significant for the future as well: if the City is unable to identify adequate sites to accommodate the housing required by the 1994 or later editions of the RHNA, it may be compelled to permit multifamily housing in the City, perhaps on the school site or on other land not subject to the CC&R's of the Rolling Hills Community Association. Accordingly, Senate Bill 1019 increases the importance of the 1994 RHNA. When that document is released by the Southern California Association of Governments (SCAG), the City will be well advised to review it with care and to seek to persuade SCAG to assign a RHNA goal to the City which can be accommodated on the available land in the City. The statute makes other, less consequential changes to the housing element law. Government Code Section 65400(b) now requires an annual report from the Planning Commission to the City Council on the "status of the [general] plan and progress in its implementation, including the progress in meeting its share of regional housing needs determined pursuant to Section 65584." This statute adopts a new section 65588.5 which requires such reports to be filed with the state Department of Housing and Community Development (HCD) within thirty days of their receipt by the City Council. The statute does not specify any consequence for a failure to file such a report with HCD. The statute adds a section 65589.7 which provides that adopted and amended housing elements "shall be delivered" to public and private water suppliers and that those suppliers shall give a priority to projects which "help meet [the locality's] share of the regional housing need for lower income households as identified in the housing element."" The section states that failure to deliver an element to a water provider "shall not invalidate any action or approval of a development project." Finally, the statute amends Government Code Section 65583(c)(4) to require an element's housing program to include measures to "conserve and improve the condition of the existing affordable housing stock, which may include addressing ways to mitigate the loss of dwelling units demolished by public or private action." Only the underscored phrase is added, and even this does not appear to be mandatory. RICHARDS, WATSON & GERSHH CONIIIDENTIAL Mr. Craig Nealis November 5, 1991 Page 4 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. I am informed by Ernie Silva, lobbyist for the League of California Cities, that additional housing legislation will likely be considered by the Legislature in the coming year. As such bills may make further inroads into the City's discretion with respect to land use regulation, the City may wish to contact the League to ensure that its viewpoint is adequately represented. It is my own sense that the viewpoint of small, largely developed communities like Rolling Hills was not well represented in the legislative discussions of Senate Bill 1019. Please call me or Mike Jenkins if you have any questions about the advice stated here. Very truly yours, Michael G. Colantuono cc: Michael Jenkins Karen Warner MGC:mgc 1910754 RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A PROFESSIONAL CORPORATION GLENN R. WATSON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD 91MON RICHARD H. DINEL ERWIN E. ADLER DANIEL P. TORRES DAROLD D. PIEPER THOMAS M. JIMBO FRED A FENSTER MICHELE BEAL SAGNERIS THOMAS A. FREIBERG. JR: ROBERT C. CECCON ALLEN E. RENNETT PAMELA A. ALBERS STEVEN L DORSEY SAYRE WEAVER WILLIAM L BTRAUSZ KEVIN G. ENNIS ROBERT M. GOLDFRIED ROBIN D. HARRIS ANTHONY B. DREWRY MICHAEL ESTRADA MITCHELL E. ABBOTT EFRAT M. COGAN TIMOTHY L NEUFELD LAURENCE 6. WIENER ROBERT F. DE METER DAVID P. WARE GREGORY W. STEPANICICH CHRISTI HOGIN ROCHELLE BROWNE STEVEN R. ORR DONALD STERN DEBORAH R. HAKMAN MICHAEL JENKINS SCOTT K. SHINTANI WILLIAM B. RUDELL DAVID L COHEN TERESA R. TRACY OUINN M. BARROW CAROL W. LYNCH TERRY A. TRUMBULL - COLEMAN J. WALSH. JR. JOHN A. BELCHER JEFFREY A. RABIN WILLIAM K. KRAMER CURTIS L COLEMAN STEVEN H. KAUFMANN MARSHA JONES MOUTRIE GREGORY M. KUNERT AMANDA F. SUSSKIND WIWAM E. MATSUMURA SCOTT WEIBLE MICHAEL G. COLANTUONO JACK 3. SHOLKOFF DAVID A. BUCHEN B. TIL DEN KIM DARYL T. TESHIMA CHRISTINA R. MELTZER BIRGIT A. HUBER S. ALAN RAY JULIET F. IRELAND RUBIN D. WEINER October 24, 1991 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Ms. Karen Warner Cotton/Beland/Associates, 747 East Green Street Suite 400 Pasadena, California 91101 RICHARD RICHARDS (1918-1988) THIRTY-EIGHTH FLOOR 333 SOUTH HOPE STREET LOS ANGELES. CALIFORNIA 90071-1489 (213) 626-8484 TELECOPIER (213) 628.0078 1910740 OUR FILE NUMBER R6980-001 [By Telecopier and U.S. Mail] Re: Revised Draft Housing Element of the General Plan of the City of Rolling Hills Dear Karen: As you requested, I have reviewed the draft of the Rolling Hills Housing Element which accompanied your letter of October 3, 1991. As promised, I write to set forth the comments on this draft which I presented to you orally on October 10, 1991. In general, this draft is substantially more defensible than the City's existing element and I commend you on your efforts. I do have a number of specific suggestions, however. These are set out below in the order of the provisions of the element to which they relate.. 1. (page 12): The discussion of groups with special housing needs is well crafted in that it identifies needs as well as programs to address those needs. A few statements can be added, however, in this regard. Can the home equity program be stated to satisfy the need of handicapped persons for structural improvements to allow them access to their homes? Can it be stated that the City is aware of no special housing needs of female -headed households except to the extent that those households fall into other special needs groups? Can some program be related to the problem of homelessness, such as the transfer of CDBG monies to Lomita? 2. (page 21): The statement that the City's housing - stock is "exclusively single-family" can be softened by noting RICHARDS, WATSON & GERSF• CONOIDENTIAL Ms. Karen Warner October 24, 1991 Page 2 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. that this homogeneity results from the requirements of the CC&R's. 3. (page 27): The discussion of the City's land use controls should demonstrate that the City's parking requirements do not needlessly constrain housing supply. One possible justification would state that the City requires ample parking because most households own several cars and on -street parking is not permitted by the CC&R's (or cannot safely be permitted by the City). It can also be noted that these requirements do not significantly constrain housing supply because the required parking can easily be supplied on the large lots required by the CC&R's. If parking requirements can be traced to the CC&R's, this would provide an additional justification. Similarly, some justification of the City's height limits should be provided. Again, the CC&R's may provide a defense. As noted below, the state Department of Housing and Community Development (HCD) also requests clarification of the City's polices regarding second units, density bonuses, fees, permit processing procedures, and re -zoning. 4. (page 28): The justification of the City's relatively high fees can be strengthened by noting that the City's fees do not exceed the cost of providing services associated with the fees and that setting fees below cost would amount to a housing subsidy which the City cannot afford. 5. (page 30): The discussion of limited government funding can be augmented by a brief discussion of the City's own limited financial resources. It can also be noted that private financing of affordable housing is unlikely given the low densities required by the CC&R's and by the topography of the City. 6. (page 31): The discussion of grading standards should demonstrate that these do not constitute a governmental constraint to housing supply. Thus, references to aesthetic motivations of grading standards might be omitted. Instead, grading standards can be justified as minimally required by virtue of topography and soil stability. It might also be noted that soil export requires the approval of the Rolling Hills Community Association (RHCA), which controls streets in the City. 7. (page 32): The discussic, of the sewer program can justify the limited results anticipated by reference to the financing limits discussed earlier in the element and to the high cost of constructing sewers in areas with topography like that of the City. • J RICHARDS, WATSON & GERS4101 CONOIDENTIAL Ms. Karen Warner October 24, 1991 Page 3 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. 8. (page 34): The land inventory must include some analysis of "sites having potential for redevelopment." Government Code Section 65583(a)(3). It may be that the element need only state that there are no sites expected to be redeveloped for residential purposes other than a few residential teardowns. 9. Under Government Code Section 65583(a)(8), the element must include an analysis of subsidized housing in the City which may lose its subsidized status in the next ten years. If, as is likely, the element reports that no such housing exists in the City, the basis for that conclusion should be stated. 10. As we discussed, it will be helpful if you prepare a memorandum to the City Council which responds to the comments raised in HCD's comment letter of December 12, 1989. Your memo should detail how the element has been amended to respond to each HCD comment. For any comment which has not generated changes in the element, the City's rationale for retaining the element's existing language should be stated. This memo will demonstrate that the City Council has considered HCD's findings, as Government Code Section 65585(e) requires. Further, the memo will constitute critical record evidence upon which we will rely in the event of a legal challenge to the element. Please send a draft of this memorandum for my review when it is prepared. 11. Some of HCD's comments have not been fully addressed in this draft and bear re-examination: the comments regarding second units (comments A-2, B-1, and B -2-(a)), density bonuses (B -2(a)), and fees, permit procedures, and the potential for rezoning nonresidential property for residential use (B - 2(b)). The detail requested regarding the City's density bonus policies could be included in the density bonus program set out at page 40 of the draft. Please feel free to call me if you have any questions or comments about the advice stated here. Very truly yours, Michael G. Colantuono cc: Lola Ungar Michael Jenkins MGC:mgc 1910740 GLENN R. WATSON ROBERT O. BEVERLY MARRY L GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON RICHARD H. DINEL ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER THOMAS A. FREIBERG. JR. ALLEN E. RENNETT STEVEN L DORSEY WILLIAM L STRAU82 ROBERT M. GOLDFRIED ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. 8TEPANICICH ROCHEU.E BROWNE DONALD STERN MICHAEL JENKINS WILLIAM B. RUDELL DAVID L COHEN TERESA R. TRACY QUINN M. BARROW CAROL W. LYNCH TERRY A. TRUMBULL COLEMAN J. WALSH. JR. JOHN A. BELCHER JEFFREY A. RABIN WILLIAM K K AMER CURTIS L COLEMAN STEVEN H. KAUFMANN MARSHA JONES MOUTRE GREGORY M. KUNERT AMANDA F. SUBSKIND WILLWN E. MATSUMURA SCOTT WEIBLE DANIEL P. TORREB THOMAS M. JIMBO MICHELE BEAL BAGNERIS ROBERT C. CECCON PAMELA A. ALBERS BAYRE WEAVER KEVIN O. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA EFRAT M. COGAN LAURENCE 8. WIENER DAVID P. WAITE CHRiST1 HOGIN STEVEN R. ORR DEBORAH R. HAKMAN SCOTT K. SHINTANI MICHAEL G. COLANTUONO JACKS. BHOLKOFP DAVID A. BUCHEN 8. TILDEN KIM DARYL T. TESHIMA CHRISTINA R. MELTZER BIRGIT A. HUBER B. ALAN RAY JUUET F. IRELAND ROBIN D. WEINER RICHARDS, WATSON ATTORNEYS AT A PROFESSIONAL CORPO OCT - 9 1991 RICHARD RICHARDS (1018-1988) CITY OF ROLLING HILLS.THIRTY-EIQIiTHFLOOR 338 SOUTH HOPE STREET By CAUFORNLA 80071-1480 (213) 626-8484 October 8, 1991 TELECOPIER (213) 826-0078 Richard L. Stone, Esq. Sheppard, Mullin, Richter & Hampton Forty -Eighth Floor 333 South Hope Street Los Angeles, California 90071 OUR FILE NUMBER R6980-01006 Via Telecopy and U.S. Mail Re: City of Rolling Hills adv. Colyear LASC No. YC 005965 Dear Mr. Stone: I appreciated receiving your letter to me of October 7, 1991. Unfortunately, it is way off base and contains a number of misconceptions regarding the City's review of the pending application for site plan review for completeness. This letter will hopefully answer your client's more immediate question concerning the status of his application and additionally set the record straight on the application review process. First, the City staff has determined to accept the application as complete. A separate letter so indicating will be sent out by City staff today or tomorrow to Mr. Montenegro, within the 30 -day review period set forth in state law. The matter will be set for hearing before the Planning Commission at its November 19, 1991 meeting, although I must tell you that the timing of staff's determination would ordinarily mean a hearing in mid- December. Second, review of the application has been made somewhat more complicated because of the question raised concerning the validity of the underlying parcel on which Mr. Colyear proposes to construct a residence. That issue, as you know, has been raised by the cross -complaint recently filed in the above action and is prompted byyour client's failure, to date, to provide the original easements denoted on his final subdivision map. This was the issue under review by the City Attorney in determining'whether the City could legally accept the application for site plan review. Friday, this office RICHARDS, WATSON & GERSHO Richard L. Stone, Esq. October 8, 1991 Page 2 concluded that the application properly could be accepted, but that ultimately the issue of the parcel's validity would have to be addressed by the City in determining whether and how to approve the application under the City's Zoning Ordinance. Staff was advised of that conclusion. yesterday. Frankly, a good argument can be made that the application cannot be accepted as complete as long as the legal issues discussed above are pending. It is a gesture of our continuing good faith to nonetheless allow the process to go forward. Third, to state the obvious, the City is litigation with your client. It is neither unusual nor a violation of anybody's rights for City planning staff to confer with counsel in a matter such as this or, frankly, any planning matter. It appears from your letter that you have that same arrangement with your client. Fourth, I am not sure what to make of your statement that the City "trickled out a series of obstacles to the site plan review application." Any obstacles here seem to be of your client's own making. Under state law, the City could not accept as complete an application which lacked basic information necessary for Planning Commission review or which contained obvious inaccuracies. The application is now being accepted as complete because your client has since corrected the deficiencies brought to his attention by staff precisely in accordance with the requirements of state law. • I trust this clarifies the situation for you. If you any questions, please do not hesitate to contact me. Very truly yours, Steven H. Kaufmann SHK:shk cc: Michael Jenkins, City Attorney Kevin Ennis, Assistant City Attorney Craig Nealis, City Manager Lola Ungar, Principal Planner 1120052 S.�. 1 uy R -;r1A 0D WA7SON 1.41 - e-3 3-:4 P4 ; R -G ARDS--bti T S0N Lr • cANN A WATC•ON ?_. HRY 4 8$Y217 -1.Y >•.:JA' L dEFZIKOS AVCLAS n. APQUR • C, ACLER PiaPfIR • n.;A9 £ PREISER,O. Am6ffi�f $, RENNET" • AA; L. SIT-AVIRE POCSAT M. QO'La>E+'i%eb ANTHONY S DREWA" M17CHSt.L 3. AOECTr T:MorPY L NEUFBrO f Sf P te M8"3R Ott'CbAY W. 9T3PArotfCt ROCHELLE CROWNS CONA.0 WT24ti miciKAeL ANK;Ne auDELL CAYfp 4 :'.bYfN -MAMA A. TRACY g6,14N M. EAAeROW Cf,gl W. LYNCH TEARY A. TRVME4:w. COLEMAN J. WALSH, -A JOHN A- EELOMSR J2PPRZY d, PAAIN WILi.tAM K. KAAM EA CIJAMC L CO12MAN srgvBN M. KAUPMANh MARf!kA JON!G MOUTAit Qa060tY M KUNEF T AmANinA P eJaOr]NC W u.LA.M !. MATeUM4AA DANIEL R, rOPAFg mows, "+. JIMeO mIcHELt' .SEAL MAONRAsS ►AMELA A.EE AT . ALS Q4 CAYCE W EAYt¢ KCViN O. ENNIS P.O£tis 0 NA.AR:4 M,Cf'ARL asIVAC . <RAAr M CQQAN LAu*EH=E C. YEENER GA.v10 P. WAfit eTave74 0A.A O3SOFJoi 3l HAKMAN MICHAEL 4. OOLAi."UONO rA~ac e. er•IOUKORR G•AVI.'t. A. Tti0}''JN t. 4!LEI!N !CM MOM. T. TSCHIMA GHRitTiNA M. MrvrzeR Cil§far A. i4Unn C. ALAN MY .ruUii P. IASLANG 16UeIN G. Y,'CINIA RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A PAORCMIOMu. CORPOMfiON October 8, 1991 Richard L. Stone, Esq. Sheppard, Mullin, Richter & Hampton Forty -Eighth Floor 333 South Hope Street Los Angeles, California 90071 Re: v of Ro l nom LASC No. YC 003965 RIOkAAO RgCMAAO! (1C1t•1ON) T•+IRT'Y. G -1 r) PLC.:A aaa GoLf iK HOP'S A"pt'T 1.08 aVCie.i®. OALIFoRNIA OM71•140Q (210) C20-04&4 TE2COPIQR (913) A2a007S OUR FILM NUMBER R6980-01006 Via Telecopy anelelleke_MAil : Colyear Dear Mr. Stone: 1 appreciated receiving your letter to me of October 7, 1991. Unfortunately, it is way off base and contains a number of misconceptions regarding the City's review of the. pending application for site plan review for completeness. This letter will hopefully answer your client's more immediate question concerning the status of his application and additionally set the concerning b. � record straight on the application review process. First, the City staff has determined to accept the application as complete. A separate letter so indicating will be sent out by City staff today or tomorrow to Mr. Montenegro, ,>rithin the 30 -day review period set forth in state law. The matter will be set for hearing before the Planning Commission at its November 19, 1991 meeting, although 1 must tell you that the timing of staff's determination would ordinarily mean a hearing in mid- December. Second, review of the application has been made somewhat more complicated because of the question raised concerning the validity of the underlying parcel on which Mr. Coiyear proposes to construct a residence. That issue, as you know, has been raised by the cross -complaint recently filed in the above action and is prompted by your client's failure, to date, to provide the original easements denoted on his final subdivision map. This was the issue under review by the City Attorney in determining whether the City could legallyaccept the application for site plan review. Friday, this office SON LA41 � 4 • • RICHARDS, WATSON & QERSHON • 3?77r c;:» Richard L. Stone, Esq. October 8, 1991 Page 2 concluded. that the -application properly could be accepted, but that ultimately the issue of the parcel's validity would have to be addressed by the City in determining whether and how to approve the application under the City's Zoning Ordinance. Staff was advised of that conclusion. yesterday. Frankly, a good argument can be made that the application cannot be accepted as complete as long as the legal issues discussed above are pending. It is a gesture of our continuing good faith to nonetheless allow the process to go forward. Third, to state the obvious, the City is litigation with your client. It is neither unusual nor a violation of anybody's rights for City planning staff to confer with counsel in a matter such as this or, frankly, any planning matter. It appears from your letter that you have that same arrangement with your client. Fourth, I am not sure what to hake of your statement that the City "trickled out a series of obstacles to the site plen review application." Any obstacles here seem to be of your client's own making. Under state law, the City could not accept as complete an application which lacked basic information necessary for Planning Commission review or which contained obvious inaccuracies. The application is now being accepted as complete because your client has since corrected the deficiencies brought to his attention by staff precisely in accordance with the requirements of state law. I trust this clarifies the situation far you. If you any questions, please do not hesitate to contact me. Very truly yours, Steven H. Kaufmann SHK: shk cc: Michael Jenkins, City Attorney Kevin Ennis, Assistant City Attorney Craig Nealis, City Manager Lola Ungar, Principal Planner 1120052 YJA(JV;Y L....t,i ;113- 'i gn:lC f� ..i � ; -. 777 8.r • � v�riT��d �. �r i r a NOTIFICATION LETTER October 8, 1991 Mr. H. Alexander Montenegro Executive Vice President Colyear Development Corporation 11100 Valley Boulevard, Suite 333 El Monte, CA 91734-1425 SUBJECT: Zoning Case N. 458 18 Johns Canyon Road (Lot 241-A-1) Dear Mr. Montenegro: You application for Zoning case No. 458, a request for a site plan review to permit the construction of a new single family reeidence and a detached garage, has been deemed complete for filing. The matter has been set for public hearing consideration by the Planning Commission at its meeting on Tuesday, November 19, 1991. The meeting will begin at 7:30 PM in the Council Chambers, Roiling Hills City Hall Administration Building, 2 Portuguese Bend Road, Rolling Hills. You or your designated representative must attend to present your project and to answer questions. The staff report for this project will be available at the City Hall after 3:00 PM on Friday, November 15; 1991. Please arrange to pick up the staff report to preview it prior to the hearing. The one matter I bring to your attention at this point is the staff=s concern regarding the validity of the underlying parcel on which the residential construction is proposed. As you may knc? y, this is an issue raised it the pending lawsuit, Colyear v. cite of Robing Hills, Los Angeles Superior Court Case No. YC005955, and arises from Mr. Collea_is failure yet to satisfy the easement imposed as a condition of approving the original lot split. This will be one of the issues the City must address under Section 17.34.040 of the Zoning Ordinance in determining whether or in what manner to approve the application for site plan review. Please call me at (213 Sincerely, LOLA M. UNGAR PRINCIPAL PLANNER cc: 1 77-1521 if you have any questions. Craig nails; City Manager Michael Jenkins, City Attorney —A#, , Iu— ;rc:cHA.RDS WATSON LAc.-, 3777288g:h S RICHARDS, WATSON & GERSHON Attorneys at Law A Professional p 333 SOUTH HOPE STREET, 38TH FLOOR LOS ANGELES, CALIFORNIA 90071.1469 Switchboard (213) 626-8484 Telecopier (213) 626-0078 TELECOPY COVER SHEET THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED -ONLY FOR THE USE OF THE INTENDED RECIPIENT NAMED BELOW. IF YOU ARE NOT THS INTENDED RECIPIENT, YOU ARE HERESY NOTIFIED THAT ANY COPYING OF THIS COMMUNICATION OR DISSEMINATION OR DISTRIBUTION OF IT TO ANYONE OTHER THAN TH INTENDED RECIPIENT IS STRICTLY PROHiB!TED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE.OR!GINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE UNITED STATES POSTAL SERVICE. 0: Telecopier • 377 Z27 Our File No.: 1 ''O.- a/DQ 6 Subject' ... - - Date: rQ�?/i/ ( Telecopied: ,�!-- L�'� +.-' .Document(s) Total Pages (including this sheet): From. `-S' 'i ✓ T; 17/ Your File No Remarks: Richards, Watson & Gershon, uses Xerox Model 7020/7021 telecoplers. This equipment is compatible with most Group 2 and 3 telecopy machines. • If you have difficulty receiving any pages, please telephone our services center at (213) 626-8484. BILLING NO TIME SENT: OPERATOR: 891018 A410.FRM SENT SY:RIC AROS WATSON LA#3 ;9-16-91 ; 4:14PM • 2136260078-, 93777288;g 2 •LaMN R. WA'90N ROIIRT O IMA ! MAAY L OIWMON DOL,S:A.I W AyW MARK L LAMKth AR!vQ•A swON PPO AAO h. OINtL EAWIN IL AOL.3A CARDED D. M[I2■ PRio A. PIAATEA T.OMM A PC WAIL Alt ALLEN a RI•.NVTT ITEVeN L. 00.42Y WILLIAM L ITRANI2 AOeERT M. Qo.DIA.ID ANTRCNY 1. DAtWW. MRGMELL1 AAIOTT 1M11W L NWAILO Mamie P. IN Mall* oaRooRY w elt1ANK:`Gh Rao/416u IAOWNI too/wkLA MIN MIC►IAIL JIIPCINI WILL,LAM 1. A✓�E:J. DAVID L. GOh2N 1 .A* TRACY QWNN M. MAAOW QAroL W LYNGM TER4Y A. CO:2MM :. WA.kt. JAL Ann A. /d60w1a AirMpg A. maw WLLUAMUAM K KRAMtR CuI TII L 00612AAN Vitas K KAUPMANN MAOOKA 4ONq MO►+MI$ QAt00R► M, ',NNW AMAl4OA P. IvalaNt W;.1AM I MATaQMuRA IOOTT w11IL1 .&)., I. P. TORRID TTSOMA$ M. JiMa° M.0 1Lt MAL 40•41p• ROIe. r G. CIOOON AAMt.A A. Ai.IIRI IATRI WIAVIA K VA% Q. th`Ni AOt.N O. MR** M.CnAIt. taTAADA DRAT M COOAN LA..AINOI t. WIENLM OAY.Q P. %%MI 2.42:2T1 ROQIN /Timis w Olin D1101U1M 1 HAKMAN aocrtT K. 1MINTANI MIOttAIL D. COLA/4%10W KINN15 T. POND" JACK I IMOUtOPP DAWO A 1uOniN 1. TILLEN KIM GCHMMAGA R, M♦LT$IA 1:l8rT A. NUaMR O. A.AN MY JJJRP VIILANO AUIIN Q. WIINM RICHARDS, WATSON & GERSHON K1TORNkVQ AT LAW A PROPINIONAL GOAlORATION September 16, 1991 I CONFIDENTIAL THIS MATERIAL 18 SUBJECT TO THE ATTORNEY-OLiENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBUCLY ACCESSIBLE RECORDS. POO A IO RIOt.uAaOt (11111-I11U T111R •'V- Iorcrw RCOR e43 tOLRN I•IOPI tTRilT l.Os AM3VL.EA. CAuPGRr.BA 10071.14N oils) 422.114114 TIM OPTER (its) 827x•0071 . 16$0645 OUR PILE IVUM1/ert R6980-303 Chairman and Members of the Planning Commission City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 Reference: Zoning Case 366, Mr. Jeffrey Faver, 5 Southfield Drive faot 3-SF1 . variance d S an ite Plan Review Dear Chairman and Members of the Planning Commission: At the Planning Commission meeting on Tuesday, September 17, 1991, the Planning Commission will be presented with the Final EIR for a proposed residential development at 5 Southfield Drive. The Commission will also be presented with the long pending application by Mr. Faver for a variance to the front yard setback to construct retaining walls and for site plan review approval of the proposed new residence on the site. Due to previous delays in the preparation of the EIR and pursuant to an agreement with the applicant regarding the processing of the application, the Planning Commission will need to make decisions at this meeting on all three aspects of the project: (1) to certify or not certify the Final EIR; (2) to approve or disapprove a variance to the front yard setback for construction of retaining walls; and (3) to grant or deny site plan review approval for the proposed project. A formal resolution memorializing the Commission's actions and findings will then be prepared and brought back to the Commission at its next field trip meeting for approval. This letter is intended to assist you in working through some of the complex issues and questions presented, and to provide you the legal advice necessary to make an informed decision of each of the available options. If after reading this letter, you have any further questions or seek further advice, please do not hesitate to call me or to discuss the matter with rye prior to the meeting. I will also be available in City Hall at least one hour prior to the meeting to discuss any issue with each of you individually.. 5:r dY:K:CHAROS WATSON LA4 • 9 -i6 -9i ; 4:75PM 210076-►. 93777268;; 3 Assassemaseeseeemer RICHARDS, WATSON & GERSHON September 14, 1991 Page 2 CONFIDENTIAL THIS MATERIAL 18 SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE REOORDS. GeneTA1 $aokargun4 The application involves a 2,664 square foot residence and a 880 square foot garage on a 1.83 acre sloping lot located at 5 Southfield Drive. The application for this project follows a previous application submitted in 1988 which was denied in 1989 due to the applicant's decision not t,o agree to the preparation of an EIR. The new application was submitted on June 26, 1989, although the funds for preparation of the first phase of the EIR were not deposited with the City until February 27, 1990. Upon submittal of the application, the City staff performed an initial study and determined that the project may have significant effects on the environment, particularly on the geologic stability of the site. The City staff then decided that an EIR was required to consider the geologic stability of the site and the effects on that geology by the placement of a house on the site. Other potential effects of the project to be discussed in the EIR included the effect of the project on the stability of Southfield Drive, aesthetics and traffic. Thereafter the City entered into a contract with GEOFON, Inc. to prepare a geotechnical report. The first phase of that report was submitted to the. Planning Commission on June 19, 1990. Thereafter, questions arose regarding the scope and cost of Phase II of the study as well as concerns regarding the qualifications of the geotechnical consultant. At the applicant's request, the Planning Commission was asked to approve or disapprove the consultant chosen by the City. When this issue was resolved, the applicant requested continuances on the application before agreeing to enter into a reimbursement agreement for Phase II in order to consider obtaining other geotechnical oonsultants to perform the work. Continuances were granted on condition that they not be prejudicial to the City's position in this matter. Finally, on February 7, 1991, the applicant entered into an agreement to reimburse the City for the costs of performing Phase II of the study and to set forth a timetable for completion of the processing of the application. A modified timetable agreement was approved in April, 1991. GEOFON completed its draft Geotechnical Report including Phases I and II on May 10, 1991. The City staff then drafted the Draft EIR document based on the GEOFON report. Both the Draft EIR and GEOFON's final Geotechnical report were completed on June 14, 1991. The public comment period on these documents ended on July 30, 1991. SENT BY:RICr.ARDS WATSON LA> • 9-1e-91 4:15p 21 #V7a- 53777266;; 4 RICHARDS, WATSON & GERSHON September 14, 1991 Page 3 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. During the public comment period, several persons commented that further borings and additional tests should be required to determine the geologic stability of lower portions of the site. However, it was decided not to perform additional borings for three reasons: (1) GEOFON strongly believed that additional tests would not provide substantial new information about the geology and stability of the site than had already been determined; (2) the budgetary limits for the EIR had already been exceeded and performance of these additional tests would have required a substantial amount of additional funds; and (3) the performance of these additional tests would have caused a breach to the City+s agreement to take action on the project by September 1.7, 1991. Instead, the EIR was revised to add further analysis and new mitigation measures. Those mitigation measures require the site to meet County static slope and seismic slope stability factors for the entire site prior to building permit approval and further tests of the groundwater at the bottom of the site to determine the appropriate location, if any, for the. septic system. City staff completed the Final EIR on September 11, 1991. Pursuant tothat agreed upon timetable, the final decision on the EIR and the project has been scheduled to take place on September 17, 1991. I� oisi n io Cegtify Qr not Certify the EIR The Commission's first decision will be whether to certify or not certify the EIR for the project. Both options have positive and negative consequences. Certification of the EIR involves making a determination that, "(a) The final EIR has been completed in compliance with CEQA: and. (b) The final EIR was presented to the decisionmaking body of the lead agency and that the decisionmaking body reviewed and considered the information contained in the final EIR prior to approving the project." Certifying the EIR does not mean that the Commission endorses or agrees with the GEOFON report, which is Appendix 1 to the EIR. The Final EIR is not comprised solely of the GEOFON report. The EIR also contains a separate main body of the EIR which is based on that report but also contains other information and analysis. The Final EIR also contains the comments from all persons submitting letters and oral testimony, and the responses to those comments. If the Commission certifies the final EIR, the City can rely on the analysis and statements contained in the EIR in SENT By;ii:v,"fARDS WATSON i-16-91 ; 4: i5FM ; LA'S"v2SC�73-' wv7772 ;; RICHARDS, WATSON & GERSHON September 14, 1991 Page 4 CONFIDENTIAL THIS MATERIAL I8 SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. making findings to approve or disapprove the project. Certification of the EIR does not, however, require the City to approve the project. Certifying a Final EIR allows the lead agency (the City) to use the EIR as a basis for making findings and taking action to approve, modify or disapprove the project. However, a final EIR does not have to be certified if the project for which it was prepared is disapproved. This is because the requirements of CEQA, including the requirement of certifying an EIR, do not apply to projects which are disapproved (California Public Resources Code Section 21080(b)(5): State Guidelines Section 15270.) Therefore if the Commission is inclined to disapprove the project, you may, but are not legally required to certify the EIR. There are benefits and detriments to a decision to certify or a decision not to certify the EIR. First, by certifying the EIR, the City is stating that the document was prepared in accordance with CEQA. The State CEQA Guidelines provides in Section 15151 a standard of adequacy for EIRs: "An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. Disagreement among experts does not make an EIR inadequate, but the EIR should summarize the main points of disagreement among the experts. The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure." The Final EIR appears to cover all issues and to summarize the main points of disagreement among experts. However, the EIR could be challenged on the basis that it did not completely analyze the effects on downslope properties of the additional irrigation and septic tank effluent created by the project. It may also fall short of the standard of completeness by adequately responding to the comments by not conducting more tests of the lower portion of the lot. However, certain mitigation measures were added to address these issues. The mitigation measures relating to the placement and type of septic system were augmented. A mitigation measure was added requiring additional design elements be added, subject to County approval, to meet the slope and seismic factors of safety required by the County of Los Angeles Building Code. This last measure, however, wA T SON LA• ; ; :: 7FM 2i2e%:-.78- 37 7 726 ; RICHARDS, WATSON & GERSHON September 14, 1991 Page 5 CONFIDENTIAL THIS MATERIAL I8 SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. may be infeasible, as discussed in a later portion of this letter. Another risk to certifying the EIR is that the City would be stuck with both the agreeable and disagreeable aspects of its analysis and statements. Consequently, a challenger to the City's decision to approve or disapprove the project could selectively use certain statements from the document to attack the findings of approval or disapproval. The last sentence at the end of Section 2.3.1, that with mitigation, the risk of landsliding of the slopewash caused by the project will be reduced to a level of insignificance may not help a finding of denial. However, that statement does not say that the site is safe for development. That statement could also be undercut if during the discussion preceding certification, one or more Commissioners expressed disagreement with this statement. If the EIR is challenged as being inadequate, the challenge would have to be brought within 30 days after the City files a Notice of Determination (Public Resources Code Section 21167). That Notice would have to be filed within 5 days after the Commission takes final action on the project. The court's standard of review as to the decision on the project would be whether there was substantial evidence in the record as a whole to support the Commission's decision. If the EIR, as a whole, does not support the Commission's decision, certification of the EIR would hurt the City's position. However, if there is enough evidence, analysis and statements in the EIR as a whole to justify the ultimate decision on the project, certification of the EIR would not hurt and would probably help the City defend the ultimate decision on the project. A key benefit to certifying the EIR is that by certifying it, the City is then required to make certain required findings before the project is approved. CEQA provides in Section 21081 of the Public Resources Code: "Pursuant to the policy stated in Sections 21002 and 21002.1, no public agency shall approve or carry out a project for which an environmental impact report has been completed which identifies one or more significant effects thereof unless such public agency makes one, or more, or the following findings: (a) Changes or alterations have been required in, or incorporated into such project which mitigate or avoid the significant environmental effects thereof as identified in the completed environmental impact report. 3Y ; n: C:-IARDS wAT5C% :h:;; 9- , -: , 4: 7pM 2'110- 93777263;; RICHARDS, WATSON & GERSHON September 14, 1991 Page .6 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUOT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF, DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. (b) Such changes or alterations are within the responsibility of another ,public agency and such changes have been adopted by such other agency, or can and should be adopted by such other agency. (c) Specific economic, social, or other considerations make infeasible the mitigation measures or project alternatives identified in the environmental impact report. If the Commission certifies the EIR and is then inclined to disapprove the project, the Commission could rely, in part, on the requirements of CEQA to disapprove the project. Specifically, the Commission may be able to find that although mitigation measures have bean recommended to reduce the environmental effects of the project, certain effects identified in the EIR cannot be mitigated to a level of insignificance as required by paragraph (a) of Section 21081 of CEQA. The EIR in various places within Section 5 of the document makes these statements. If the Commission then concludes that the other available findings contained in paragraphs (b) or (c) cannot be made either, then CEQA requires the City to disapprove the project. If the EIR is not certified, the Commission could not rely on the requirements of CEQA Section 21081 to support its decision. Another disadvantage to not certifying the EIR is that the applicant may sue the City in a contract action for failing to prepare an EIR that the City could rely upon in making its decision. After all, it was the applicant who has paid nearly $45,000 for the preparation of the EIR and it was the City who chose GEOFON to perform the work. In my opinion, the EIR as a whole has been drafted to provide enough flexibility for the Commission to rely on its analysis and findings to nake a decision to approve or disapprove the project. The Final EIR has changed some of the analysis and findings contained in the Draft in order to respond to the comments. This has helped to strengthen the document if the Commission wants to rely on it in denying the project. The document is not perfect and more information would have been preferred. Thus, I cannot conclusively state that it is legally adequate, but believe, on balance, that if challenged, the EIR would be upheld as complying with CEQA. However, the fact that the GEOFON report itself, the general findings of which has been endorsed by the applicant's own geological firm (American Geotechnioal), found that the static and seismic factors of safety of the site do not ;lest industry standards of slope and seismic safety, is a significant piece of evidence upon which to make a finding to deny the application. SEN i 5Y;RICHARDS WATSON LA43 • • 4 r 9-16-91 t 2-,3W76- 937772664 6 RICHARDS, WATSON & GERSHON September 14, 1991 Page 7 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGE*. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE REOORDS. teeelownemmar A risk in not certifying the EIR after there has been significant discussion entered into the record by Commissioners that the GEOFON report as a whole is inadequate, wrong or completely unreliable, is that such decision and statements may be used to contradict the City's ability to rely on that one GEOFON finding to show that it has substantial evidence in the' record to support a finding that the project site is unsafe for development. Therefore, if the Commission is inclined to criticize the GEOFON report or the EIR as a whole leading up to the decision to certify or not certify the EIR, I would recommend that. Commissioner's comments be_specific-rather than general so as to not to undercut the City's ability to rely on other aspects of the documents to support the findings for the decision. If the Commission is inclined to disapprove the project, one aspect of the GEOFON report which may be important to criticize is its reliance on the Lockwood and Associates study of 1963 to support its own conclusions that the geology of the site is based on a wave -cut platform of stable geologic formations. It would be helpful to have some additional information in the record regarding the Lockwood Report which was apparently completely discredited during the Flying Triangle litigation. The linkage between the findings of the Lockwood report as to the underlying geology and safety of the area and " the same specific conclusions an that one point contained in the GEOFON report may be helpful to discuss in the record so as to show a reviewing court that the Commission did not rely on GEOFON's analysis on that point in making its decision on the project. For the reasons indicated above, we would recommend that the Commission certify the EIR. We recognize that the EIR is not perfect and that additional studieswould have been preferable. The citizenry will no doubt make strong calls at the Commission meeting to have everything involved with this project disapproved, including the EIR. They will probably claim that the responses to comments are inadequate. They will probably call for the completion of additional studies before the EIR is certified. We do not entirely disagree with their positions, and have found there comments and efforts in this matter to be enormously helpful in providing evidence to the City to justify ita eventual action On the project, However, .if the Commission desires to disapprove the project, the EIR is probably sufficient in its present form to withstand an attack by the applicant. Certification of the EIR, even without thoseadditional studies, will probably help to support that action by requiring the City to make certain required findings under CEQA in order to approve the project that the Commission may not be able to be make. Also bJ 7772L.a;; d RICHARDS. WATSON S. GERSHON September 14, 1991 Page 8 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. it will help the City avoid the claim of unfairness and breach of contract by the applicant. Decisions on the.Proieot The decision to approve or disapprove the variance and site plan review must be based on substantial evidence in the record as a whole. The decisions•should be based on whether or not required findings for a variance and site plan review can be made in this instance along with whether or not the required CEQA finding of Section 21081 can be made. A complete denial of the project under Site Plan Review must be based not only on findings that the project does not meet the list of required findings for Site Plan Review, but also on a finding that the proposal cannot Meet and cannot not be modified to meet the requirements of the Site Plan Review Ordinance and all other "applicable requirements and standards of this Title 17 and other laws and regulations." (Paragraph B of Section 17.34.040). If the proposal can be reduced in size or situated differently so as to conform to the required findings, the fact that the project as proposed does not currently meet those required findings would not be sufficient to uphold a complete denial of the project. In my opinion, the strongest basis to justify a complete denial of the project is on the finding of the GEOFON report and reiterated in the comments by Arthur Keene that the'\ site does not _meet _the static_ slopefactor of safety of 1.5 and the seismic safety the soil in the area aofa £r the proposedresidence FON's phas aort nslope esafety factor of 1.36 and a seismic safety factor of .97. The Uniform Building Code does not directly state that the site is unsafe if it has a slope stability factor of less than 1.5 or a seismic stability factor of less than 1.1. The Uniform. Code speaks in terms of "will not be unsafe" and "appears to be safe." I am informed that the County of Los Angeles and the geotechnical industry have generally considered a slope stability factor of 1.5 to be "safe" and a slope stability factor of 1.25 to "appear to be safe." The Uniform Building Code precludes the County from issuing a building or grading permit in an area determined by the county engineer to be subject to hazard from landslide, settlement or slippage. These hazards include those from loose debris, slopewash and the potential for mud .flows from natural slopes or graded slopes. If a site only appears to be safe, only limited types of construction are normally permitted, such as certain types of repair and certain percentages of added space to an existing residence (Section 308 (c) of the Uniform Building Code.) The fact that the soil on the site does not meet these industry standards also makes it difficult for the City to .f1 r. 5r1i ; r r�4 ; LY RICHARDS. WATSON & QERSHON September 14, 1991 Page 9 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. 00 NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. conclude that the project complies with finding (f) of the Site Plan Review Ordinance. That finding requires that the project conform "with the requirements of the California Environmental Quality Act." As stated previously, Section 22081.of CEQA requires one of three required findings to be made prior to approving a project for which an EIR has been prepared. The most plausible finding of Section 21081 that could be made in this case is that the project has been altered to mitigate or avoid- the significant environmental effects identified in the EIR. Mitigation measures contained in paragraphs (11) and (12) of Section 5.1.1 require additional design elements for the structure so that it would meet the required slope stability and seismic safety factors. However, it may not be feasible to create additional design elements to meet these standards. Also, GEOFON's report does not specify the required design elements necessary to mitigate the geologic instability of the site to the required levels. Thus, if these mitigation measures are not found to be feasible, the Commission could find that the first required finding of CEQA Section 21081 cannot be made, that is, that the project has been revised to avoid the environmental effects of the project. Without being able to make this finding, the Commission could not approve the project under CEQA Section 21081 unless it could make one of the other two findings: that changes to the project can feasibly be imposed by another Agency, such as the Los Angeles County Department of Building and Safety: or, that there are overriding considerations that make these impacts acceptable. If these other findings cannot be made, the project would have to be disapproved based upon CEQA Section 21081. Another basis for denial is the inability to make one of the required findings of CEQA Section 21081 and thus finding (f) of the Site Plan Review Ordinance with regard to the effects on the geology of the site caused. by the addition of irrigation,. drainage and septic tank effluent into the soil. Without mitigating to a level of insignificance, the City would be required to make a statement of overriding consideration that the_ benefits _of_. the _ .pro jec.t_ outweigh_the_environmental effects :'of the project. It is entirely plausible that this finding could not be made. However, there should be evidence in the record of the hearing to use to make the conclusion that these findings cannot be made. There are some problems, however, with focusing on the evidence in the record regarding the cumulative effect on the geologic instability of the Flying Triangle caused by the project's incremental increase in septic tank effluent into Klondike Canyon. The evidence on that point was introduced by the. Rancho Palos Verdes Geologist. Unfortunately GEOFON did not thoroughly address this point. Therefore, there probably is not :r� �•v�`. r•��v 10.. vii` 6'^ R►CHARDS, WATSON & GERSHON September 14, 1991 Page 10 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY•CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. substantial evidence in the record to justify a denial on this basis. Also, the City has considered other projects that are located in Klondike Canyon, such as the project at 6 Ringbit, without requiring this type of study and without denying the project on this basis. Therefore, I think it would be less of a risk to focus instead on the effects of additional drainage and effluent as it may affect the subject site itself, and to make a finding based upon that environmental effect. I hope that the information provided herein is helpful to you in considering the proposed project and the decisions that the Commission will be asked to make at its meeting. I will make myself available at the City Hall an hour before the meeting to discuss any questions each of you may have individually regarding these matters. You may also telephone me at my office before 5:00 p.m. Very truly yours, g/ • Kevin G. Ennis Assistant City Attorney KGE:kge 1680645 RICHARDS, WATSON & GERSHON MEMORANDUM 3gsanl OCT 1 0 1991 Byy,pF. ROLLING HILLS ®- •-----�--�- --ti)r TO: Michael Jenkins CONFIDENTIAL FROM: Steven H. Kaufm ri-� DATE: October 8, 1991 SUBJECT: Colyear v. Rolling Hills: Demurrer to Cross -Complaint Attached is a copy of the Demurrer to Cross -Complaint filed by Colyear in the above case. Our response will be, among other things, that the demurrer is frivolous; the Government Code section relied on pertains to an attack on an agency decision, not to an action to enforce the decision as here; that the violation is continuing and was pleaded as such; and that by law, no lapse of time can legalize a public nuisance or violation. The hearing is set for October 23, 1991. Our response is due on October 16, 1991. cc (w/enc.): Kevin Ennis SHK:shk 1120057 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHEPPARD, MULLIN, RICHTER & HAMPTON A Partnership Including Professional Corporations RICHARD L. STONE, Cal. BAR NO. 110022 333 South Hope Street, 48th Floor Los Angeles, California 90071 Telephone: (213) 620-1780 Attorneys for Plaintiff and Cross -Defendant, RICHARD C. COLYEAR SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES RICHARD C. COLYEAR, an individual, Petitioner and Plaintiff, v. CITY OF ROLLING HILLS, etc., et al., Respondent and Defendant. CITY OF ROLLING HILLS, a municipal corporation, Cross -Complainant, v. RICHARD C. COLYEAR, an individual, Cross -Defendant. Case No. YC005965 (1) NOTICE OF HEARING ON DEMURRER TO CROSS - COMPLAINT; (2) (3) DATE: TIME: DEPT: DEMURRER; AND MEMORANDUM OF POINTS AND AUTHORITIES IN.SUPPORT THEREOF October 23, 1991 1:30 p.m. 11,111 TRIAL DATE : None DISCOVERY CUT-OFF: None MOTION CUT-OFF : None Set Set Set -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES HEREIN AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on'Actober23,_1991-at 1:30 p.m. or as soon thereafter as counsel may be heard in Department "J" of the above -entitled court located at 825 Maple Avenue, Torrance, California 90503, Cross -Defendant, Richard C. Colyear, will demur to the causes of action stated in the cross -complaint of the City of Rolling Hills dated September 6, 1991. Pursuant to C.C.P. § 430.10(e), the demurrer will be on the grounds that the cross - complaint fails to state facts sufficient to constitute any causes of action against Cross -defendant Colyear. Cross -Defendant Colyear's demurrer will be based on this Notice of Hearing on Demurrer, the attached Demurrer, the attached Memorandum of Points and Authorities in Support Thereof, the pleadings and papers on file in this action, and on such oral and documentary evidence that the Court may consider at the hearing of this matter. Dated: October 8, 1991 3\6\P072608N.LD3 ti SHEPPARD, MULLIN, RICHTER & HAMPTON By RICHARD L. STONE Attorneys for Plaintiff and. Cross -Defendant RICHARD C. COLYEAR -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER TO CROSS -COMPLAINT Cross -Defendant, Richard C. Colyear, hereby demurs to the cross -complaint of the City of Rolling Hills on the following grounds: DEMURRER TO FIRST CAUSE OF ACTION The First Cause of Action does not state facts suffi- cient to constitute a cause of action in that it is barred by the statute of limitations. Gov't Code § 66499.37; C.C.P. § 343. DEMURRER TO SECOND CAUSE OF ACTION The Second Cause of Action does not state facts suffi- cient to constitute a cause of action in that it is barred by the statute of limitations. Gov't Code § 66499.37; C.C.P. § 348(d). -3- 1 2 3 4 5 6 . 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 .27 28 DEMURRER TO THIRD CAUSE OF ACTION The Third Cause of Action for Declaratory Relief does not state facts sufficient to constitute a cause of action in that no actual controversy exists between the parties. C.C.P. § 1060. Dated: October 8, 1991 3\G\P072608N.LD3 SHEPPARD, MULLIN, RICHTER & HAMPTON By RICHARD L. STONE Attorneys for Plaintiff and Cross -Defendant RICHARD C. COLYEAR -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 '27 28 MEMORANDUM OF POINTS AND AUTHORITIES ;N SUPPORT OF DEMURRER I. INTRODUCTION Cross -defendant, Richard C. Colyear is the legal owner and possessor of two adjacent parcels of real property located in the City of Rolling Hills (the 'City"). In or about 1970, Cross - defendant Colyear filed an application with the City for a Tract Map to subdivide the property into two lots. Cross -complaint, 1 5. The City Council approved the final subdivision map for Tract No. 29408 on or about June 14, 1971. Cross -complaint, 1 8. Now, twenty years later, the City has filed a cross -complaint challenging the validity of that decision. The City's First Cause of Action is based on Cross - defendant Colyear's alleged failure to fulfill the terms and conditions of the 1971 subdivision approval. The City __.alleges_ that its 1971 approval was subject to the condition thatCross- defendant Colyear record certain easements on--his_property---.in_ favor of__ the --City. __._ Cross -complaint, 1 17. The City avers that he has failed to fulfill this condition. Cross -complaint, 1 18. Consequently, the City seeks injunctive relief to compel recordation of the easements. Cross -complaint, 1 21. The City's Second Cause of Action to void the 1971 subdivision approval is based on the allegation that Cross- -5- 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defendant Colyear fraudulently misrepresented that he would provide the easements denoted on his final subdivision map but never intended to provide such easements. The City contends therefore that the tract map approved is invalid and void by reason of fraudulent inducement. Cross -complaint, 1 25. The City claims that its Third Cause of Action for Declaratory Relief is supported by the alleged controversy created by its challenge to the validity of its 1971 decision approving Cross -defendant Colyear's final subdivision map. Cross -complaint, 1 29. The City argues that Cross -defendant Colyear is legally obligated to record the easements and that the subdivision should revert to the original boundaries if he fails to do so. Cross - complaint, 1 29. In light of the fact that more than twenty (20) years have passed since the City gave final approval to the subdivision map for Tract No. 29408, the City's cross -complaint to compel. Cross -defendant Colyear to record the easements or, alternatively, to void the approval, should be dismissed as barred by the statute of limitations. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 /16 17 18 19 20 21 22 23 24 25 26 27 28 period set forth in Section 66499.37. '7. II. THE FIRST AND SECOND CAUSES OF ACTION FAIL TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUS1 OF ACTION IN THAT THEY ARE BARRED BY THE STATUTE OF LIMITATIONS. Gov't Code § 66499.37 in pertinent part provides: "Any action or proceeding to attack, review, set aside, void or annul the decision of (a) . . . legislative body concerning a subdivi- sion, . . . shall not be maintained by any person unless such action or proceeding is commenced and service of summons effected within 90 days after the date of such deci- sion. Thereafter all persons are barred from any such action or proceeding or any defense of invalidity or unreasonableness of such decision . . . ." (emphasis added) The City's cross -complaint, dated September 6, 1991, attacking the validity of its 1971 decision to approve the final subdivision map clearly falls outside the 90 day limitations 4-,r c ' .. E % i -i o^-- 7/ - f,.t /-t€ o- r. 12" Although Section 66499.37 applies to an action "main- tained by a person", the general provisions of the Gov't Code define the term "person" as including "any person, firm, asso- -7- • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ciation, organization, partnership, business trust, corporation, or company." Gov't Code § 17. The definition in this general provision ordinarily will govern unless another provision or the context otherwise requires. Gov't Code § 5. Statutes referring to "persons" apply to municipal corporations. Miller v. Johnson, 4 Cal. 2d 265, 266-67, 48 P.2d 956, 957 (1935); Adams v. Oakland, 92 Cal. 611, 614, 28 P. 807, 808 (1891). i �I Nothing in the express language of Section 66499.37 exempts the City's First Cause of Action to compel recordation of the easements nor the Second Cause of Action to void the subdivi- sion approval from the 90 day limitations period. "The broad language the Legislature employed within section 66499.37 was specifically designed to include any challenge . to any subdivision -related decision of . . . a legislative . . . entity". Presenting Jamul v. Board of Supervisors of San Diego County, 231 Cal. App. 3d 665, 671, 282 Cal. Rptr. 564, 568 (1991). The broad language of Section 66499.37 supports the application of the statute to an action brought by the City attacking its own subdivision decision. Such an application would also vindicate the legislative objective of Section 66499.37. California courts have recognized that Section 66499.37 "manifests a patent legislative objective that the validity of . . . decisions of a local legislative body, or its advisory agency, be judicially determined as expeditiously as is consistent with the requirements of due process of law." Presenting Jamul, 231 Cal. App. 3d at 670, 282 Cal. Rptr. at 568; Griffis v. Mono, -8- 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 .27 28 163 Cal. App. 3d 414, 422, 209 Cal. Rptr. 519, 524 (1985). The Legislature by design drafted Section 66499.37 broadly to minimize any delay in the resolution of disputes concerning subdivision related decisions. Presenting Jamul, 231 Cal. App. 3d at 671, 282 Cal. Rptr. at 568. The legislative objective of ensuring prompt resolution of subdivision disputes is also highlighted by the declaration of calendar preference in the last sentence of Section 66499.37: "Any such proceeding shall take precedence over all matters of the calendar of the court, except criminal, probate, eminent domain and forcible entry and unlawful detainer proceedings." Further- more, in 1980, the Legislature amended Section 66499.37 to reduce the period within which an action challenging a subdivision decision could be brought from 180 days to 90 days. Consistent with its broad language, Section 66499.37 has been applied to a wide range of actions involving subdivision decisions: "[T]he courts have not hesitated to apply [Section 66499.37] when the legislative entity has succumbed to inaction, failing to follow the statutory scheme requiring specific action [citation] or to issue a properly rendered decision reached by a majority of the members composing the legislative entity under the subdivision map act. [citation]. It applies -9- • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 where a party challenges a subdivision related decision, arguing the entity was without the jurisdiction or legal authority to grant the legal request. [citations]. Indeed, section 66499.37 applies whenever the conduct of a local agency under the Subdivision Map Act is called into question, even where it has allegedly exercised no discretion under the act." Presenting Jamul, 231 Cal. App. 3d at 671-72, 282 Cal. Rptr. at 568-69. To construe Section 66499.37 as not applying to the case at bar would defeat the Legislature's paramount intent to expedite judicial review of Subdivision Map Act controversies. If the City is allowed to proceed with its challenge to a subdivision decision it made twenty (20) years ago, the primary objective of the Subdivision Map Act will be undermined. The City must be denied the opportunity to circumvent the statutory scheme established by the Subdivision Map Act by seeking judicial review of a decision it made twenty (20) years ago. A basic rule of statutory construction is that "[i]n attempting to ascertain the legislative intent when construing a statute, we presume that the legislature did not intend absurd results." In re Head, 42 Cal. 3d 223, 232, 228 Cal. Rptr. 184, 189 (1986). To construe Section 66499.37 as not applying to the case at bar would allow the absurd result that a city may chal- -10- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 lenge any prior subdivision decision regardless of how long ago it was made. It makes no sense to give a public entity an unlimited period within which to bring an action challenging the validity of its own subdivision decision while subjecting all other parties bringing the same action to the 90 day limitations period of Section 66499.37. Alternatively, if this court determines that Section 66499.37 is inapplicable to the case at bar, the City's First and Second Causes of Action are nevertheless barred by the general statute of limitations provisions of the Code of Civil Procedure. The First Cause of Action to compel recordation of the easements is barred by C.C.P. § 343, which provides that "an action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued." This section is a residuary clause which applies when no other section is applicable. Unkel v. Robinson, 163 Cal. 648, 651, 126 P. 485, 486 (1912); Turner v. Milstein, 103 Cal. App. 2d 651, 658, 230 P.2d 33, 30 (1951). During the 20 years between the 1971 approval of the final subdivision map and the filing of this Cross -Complaint, the City had the means to discover the alleged failure of Cross - defendant Colyear to record the easements, given that the recordation of easements is a matter of public record. "Means of Knowledge, especially where it consists of public records . . . is -11- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deemed in law to be knowledge." Crabbe v. White, 113 Ca1. App. 2d 356, 360, 248 P.2d 193, 196 (1952); Cowden v. Kress, 202 Ca1. App. 2d 1, 7, 20 Cal. Rptr. 560, 564 (1962). Accordingly, this court must find that the City had constructive knowledge of Cross - defendant Colyear's alleged failure to record the easements during the 20 years between its 1971 approval and the filing of its Cross -Complaint. Since the City failed to act upon this knowledge in a timely fashion, this court must find that the City's First Cause of Action is barred by the statute of limitations. C.C.P. § 338(d) provides for a three year statute of limitations for an action for relief on the ground of fraud or mistake. This section is a bar to the City's Second Cause of Action to void the subdivision approval since that cause of action is founded on allegations that the City's decision granting final approval to the subdivision map was induced by the fraudulent misrepresentations of Cross -defendant Colyear. The City's challenge to the validity of its 1971 deci- sion falls outside even the longest limitations period allowed by California statutes, which is 10 years. This 10 year period applies to actions involving adverse possession (C.C.P. § 315, public bonds (C.C.P. § 337.5), a federal or state court judgment (C.C.P. § 337.5(3)), charitable trusts (Gov't Code § 12596), latent defects in real property (C.C.P. § 337.15), and inheritance tax (Rev. & Tax Code § 13610). See, 3 Witkin, Cal. Procedure, Actions § 347 (3d ed. 1985). There are only a limited number of -12- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 instances where no statute of limitations applies, and none of these circumstances are present here. 1) Accordingly, Cross -defendant Colyear's demurrer to the First and Second Causes of Action of the City's cross -complaint must be granted without leave to amend. a III. THE THIRD CAUSE OF ACTION FOR DECLARATORY RELIEF MUST BE DISMISSED BECAUSE NO ACTUAL CONTROVERSY EXISTS BETWEEN THE PARTIES. Under Section 1060 of the Code of Civil Procedure, a court is empowered to declare and determine the rights and duties of parties only "in cases of actual controversy relating to the legal rights and duties of the respective parties." Where no present legal controversy exists, a cause of action for declaratory relief is not stated. Ephraim v. Metropolitan Trust Co., 28 Cal. 2d 824, 836, 172 P.2d 501, 509 (1946). Furthermore, "where a complaint shows on its face that all relief is barred by the statute of limitations, it is unnecessary for the court to make a declaration of rights, and a general demurrer may be 1/ Legal Commentator B. E. Witkin identifies the following situations where no statute of limitation applies: (1) an express statutory provision permits suit to be brought at any time; (2) an owner in possession brings suit to quiet title; and (3) legal proceedings concerning a cotenant partition, support of a minor child, cancellation of a void instrument, dissolution of marriage. 3 Witkin,. Cal. Procedure, Actions at § 348-50. -13- • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sustained." Bennett v. Hibernia Bank, 47 Cal. 2d 540, 550, 305 P.2d 20, 26-27 (196.4); Phillis v. Santa Barbara, 229 Cal. App. 2d 45, 53, 40 Cal. Rptr. 27, 30 (1964). In light of the foregoing principles, the City's Third Cause of Action for Declaratory Relief must be dismissed. The City's claim for declaratory relief is premised on the controversy created by its challenge to the validity of its 1971 decision approving the final subdivision map. Cross -Complaint, First and Second Causes of Action. Since the First and Second Causes of action must be dismissed in that they are barred by the statute of limitations, the Third Cause of Action must also fail. No controversy exists between the parties as the City is barred from bringing an action to challenge its 1971 decision. Accordingly, this court must grant Cross -defendant Colyear's demurrer to the City's Third Cause of Action. -14- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Iv. CONCLUSION For the foregoing reasons it is respectfully submitted that the Demurrer of Cross -defendant Colyear should begranted without leave to amend. Dated: October 8, 1991 3\G\P072608N.LD3 SHEPPARD, MULLIN, RICHTER & HAMPTON By ILV RICHARD L. STONE Attorneys for Plaintiff and Cross -Defendant, RICHARD C. COLYEAR -15- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF SERVICE 8 HAND DELIVERY I am a citizen of the United States, over the age of eighteen years, employed in the City and County of Los Angeles, California, and not a party to the within action. My business address is Sheppard, Mullin, Richter & Hampton, 333 South Hope Street, 48th Floor, Los Angeles, California 90071. On October 8, 1991, I hand -delivered an envelope containing a true copy of the following document(s): NOTICE OF HEARING ON DEMURRER TO CROSS -COMPLAINT; DEMURRER; AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF, addressed to the following person(s): Steve Kaufman, Esquire Richards, Watson & Gershon 333 So. Hope Street, 38th Floor Los Angeles, CA 90071 X (State) I certify and declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (Federal) I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on October 8, 1991 at Los Angeles, California. C=�r � BECKY SCHWINDLER -16- GLENN R. WATSON ROBERT G. BEVERLY HARRY L GERSHON DOUGLAS W. ARGUE MARK L LAMKEN ARNOLD SIMON RICHARD H. DINEL ERWIN E. ADLER DAROLD D. PIEPER FRED A. FENSTER THOMAS A FREIBERG, JR. ALLEN E. RENNETT STEVEN L DORSEY WILLIAM L STRAUSZ ROBERT M. GOLDFRIED . ANTHONY B. DREWRY MITCHELL E. ABBOTT TIMOTHY L NEUFELD ROBERT F. DE METER GREGORY W. STEPANICICH ROCHELLE BROWNE DONALD STERN MICHAEL JENKINS WILLIAM B. RUDELL DAVID L COHEN TERESA R. TRACY QUINN M. BARROW CAROL W. LYNCH TERRY A. TRUMBULL COLEMAN J. WALSH. JR. JOHN A. BELCHER JEFFREY A. RABIN WILLIAM K. KRAMER CURTIS L COLEMAN STEVEN H. KAUFMANN MARSHA JONES MOUTRIE GREGORY M. KUNERT AMANDA F. SUSSKIND WILLIAM E. MATSUMURA SCOTT WEIBLE DANIEL P. TORRES THOMAS M. JIMBO MICHELE BEAL BAGNERIS ROBERT C. CECCON PAMELA A. ALBERS SAYRE WEAVER KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA EFRAT M. COGAN LAURENCE S. WIENER DAVID P. WAITE CHRISTI HOGIN STEVEN R. ORR DEBORAH R. HAKMAN SCOTT K. SHINTANI MICHAEL G. COLANTUONO JACK S. SHOLKOFF DAVID A BUCHEN B. TILDEN KIM DARYL T. TESHIMA C.r+RISTEJA 6. MEELTZVR BIRGITA. HUBER S. ALAN RAY • JULIET F. IRELAND RUBIN D. WEINER RICHARDS, WATSON & GE ATTORNEYS AT LAW A PROFESSIONAL CORPORATION • r-rsgEW OCT1 1 1991 RICHARD RICHARDS (1916-1988) CflXc\O, ROLM* J1uS October 10, 1991 City of Rolling Hills Mr. Craig Nealis, City Manager 2 Portugese Bend Road Rolling Hills, California 90274 THIRTY-EIGHTH FLOOR 333 SOUTH HOPE STREET C> LOS_ ANGELES, �CAUFORNIA 90071-1469 (213) 626-8484 TELECOPIER (213) 626-0078 1040365 OUR FILE NUMBER R6980-001 Re: NPDES Stormwater/Urban Runoff Discharge Permit Dear Craig: Enclosed is our draft letter responding to the Natural Resources Defense Council's (NRDC) allegations that the City failed to submit certain information and workplan required for the Stormwater and Urban Runoff Discharge. Permit by the July 1, 1991 deadline. A number of our cities who were the recipients of similar NRDC letters sent responses very similar to the one enclosed. Those cities had fully complied with the permit requirements and had submitted all necessary information to the County by the July 1, 1991 deadline. However, during the drafting of this letter, we discovered that the City in fact did not turn in the information to the County until September 27,1991, over two months after the deadline. If the letter as presently drafted were sent to the NRDC, we are concerned that the letter could possibly convey the false impression that the City submitted the information on time. Under the circumstances, perhaps the letter should not be sent and the matter best be left alone. Please let me know how you would like to proceed. vary truly yours, Jenkins City Attorney MJ:crm 1040365 Enclosure • CITY LETTERHEAD Michael D. Fitts Natural Resources Defense Council 617 South Olive Street, Suite 1210 Los Angeles, California 90014 Re: NPDES Stormwater/Urban Runoff Discharge Permit Requirements Dear Mr. Fitts: The City Manager of Rolling Hills ("City") has asked that we investigate and answer the allegations contained in your letter to Mayor Pernell dated August 30, 1991 concerning the City's compliance with NPDES stormwater and urban runoff discharge requirements. The following information addresses your concerns. The City is a co-permittee to the County of Los Angeles and has absolutely no control over the timing of the County's permit submittal to the State Water Quality Control Board, nor over the compliance of other jurisdictions that may delay the permit process. Further, the City is an entirely rural residential community of single family estate size lots. All stormwater drains naturally down canyons, gullies, streets and easements. All thoroughfares are privately owned and maintained by the Rolling Hills Community Association ("Association"). The Association inspects and cleans main roadways, notifies homeowners to clear their easement and bridle trails on a regular basis to avoid their being washed down natural canyons and waterways, removes and trims trees and brush that overhang street easements, and requires daily litter cleanup and debris 911007 crm 1040366 0 containment at construction sites. Moreover, the City depends almost entirely upon adjoining cities and the County of Los Angeles for its services and commercial uses. All sewer mains are maintained by the County of Los Angeles. Residents not on sewer mains are required to contract with private companies to drain and remove cesspool wastes from the City. There are no industrial uses in the City. The City does not own any rain gauges nor does it have the legal authority to monitor existing water quality. In partnership with the Association, the City currently implements following Best Management Practices ("BMPs"): (1) A rubbish collection program requires that all rubbish be collected and removed from the City by a licensed or franchised company to prevent debris from washing into natural canyons and waterways. Rubbish, garbage or receptacles are not permitted on any public street or road, garbage must be kept in containers, and accumulation is strictly prohibited. No more than one cubic yard of manure can be allowed to accumulate. Littering and stockpiling of building materials is also strictly prohibited. (2) A waste collection. program for large items and materials is publicized in the City's bi-monthly newsletter. (3) A hazardous waste collection program (including the recovery of oil and batteries) specifies waste collection sites and dates of collection and is publicized in the City's bi- monthly newsletter. (4) A recycling program mandates the collection of recyclables three times a week. (5) All construction waste and debris from any construction, alteration or repair site must be removed within one week by the owner or contractor. While the City has only limited legal authority to impose BMPs or to enforce the permit, it is nevertheless extremely concerned with the protection of our water quality and environmental resources. It is unclear to the City why your organization failed to contact the City directly before publicizing your erroneous allegations. If you had contacted the City, you would have learned that the City has consistently been proactive in its adherence to the permit requirements. In these days of dwindling. economic resources, valuable City staff and attorney time spent responding to your erroneous letter could have been better spent on efforts to implement this program. 911007 crm 1040366 0. -2- If you have any further questions or comments regarding the above information, please feel free to contact me at (213) 626-8484. Very truly yours, Craig Nealis City Manager CRM:crm 1040366 cc: Robert Ghirelli, L.A. Regional Water Quality Control Board Daniel W. McGovern, Regional Administrator, EPA Supervisor Deane Dana, L.A. County Board of Supervisors State Assemblyman Gerald Felando State Senator Robert Beverly Mark Gold, Heal the Bay Lola Ungar, Principal City Planner 911007 crm 1040366 0 -3- 5 c ; aJ A4A•C.e! P i' p.1,f�4 ffi E ti, / .: .. s .e e./--___ I 466" E� f r t • ` Gva' eJ, 1 A- - n 4:1-4 _ -tom ' ,...cam s; L ?'ii' V" " �,,- f: .:!A_.z ">' ,i-�'t7' �` r . /d X7 /Oh / •C O N F I D E N T I A L• RICHARDS, WATSON & GERSHON MEMORANDUM VA By. TO: Chairman Roberts and Members of the Planning Commission FROM: Michael G. Colantuono, Assistant City Attorney DATE: November 15, 1991 SUBJECT: Adoption of the 1991 Housing Element On November 19, 1991 the Commission will consider amendments to the housing element of the general plan. The purpose of this memo is to provide background and legal advice with respect to this matter. After the housing element was adopted in 1990, this office determined that it could be strengthened against legal challenge. On the basis of this advice, the City retained the services of Cotton / Beland / Associates, Inc. to prepare an amended element. The product of their efforts is before you this evening. This draft does not significantly change the policies set forth in the prior element. Rather it adds additional data, a few more housing programs, and greatly strengthens the analysis of the constraints to housing supply which may make it impossible for the City to supply all the affordable housing which has been assigned to the City by the Regional Housing Needs Assessment (RHNA) of the Southern California Association of Governments (S CAG) . We conclude that this draft is significantly more likely to withstand a legal challenge than its predecessor. In addition, we believe this draft is as legally defensible as any housing element which does not commit the City to developing, or facilitating the construction of, affordable housing. However, unless the City is willing to establish new planning goals and to plan for the construction of the nine affordable units required by the RHNA, there remains a risk that the element will be invalidated if challenged. Notably, the element provides essentially no discussion of the Palos Verdes Peninsula Unified School District property outside the gates of the City (the La Cresta School site). It is our understanding that this site is not constrained by the covenants, conditions, and restrictions (CC&R's) of the Rolling Hills Community Association, and is accessible from public streets, served by adequate utilities, and is not constrained by topographical and geotechnical characteristics that would support MGC:mgc 1910784 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. % %emu is a ��id ()CONFIDENTIAL. RICHARDS, WATSON & GERSHON MEMORANDUM Chairman Roberts and Members of the Planning Commission November 15, 1991 Page 2 a conclusion that the site is not suited for housing. Because neither the consultant nor City staff could conceive of such.a justification for failing to plan for housing on this site, a decision was made not to discuss it within the element. As the element is now drafted, the only reference to the school site is the statement at the bottom of page 36 of the October 23, 1991 draft that: "Non-residential properties in Rolling Hills are limited to public and institutional uses. None of these uses are anticipated to be, redeveloped within the time frame of this element." While this statement is literally true (since the District's short-term intentions are not clear), the failure to plan for housing on the school site may make the element vulnerable to legal challenge. It is not clear that the State Department of Housing and Community Development (HCD), which is now reviewing the draft element, is aware of the existence of the school site. Thus, HCD may not comment on this issue. There remains a risk, however, of a legal challenge to the housing element brought by a legal advocacy group or by some other party -- perhaps by the school district itself in an effort to maximize the market value of this property. Such a suit could raise the element's failure to provide for housing on the school site. If such a challenge is brought, the element's silence as to the school site may be quite difficult to defend. Because of recent legislation, we recommend that the element be adopted :before year's end, if possible. On October 14, 1991, the Governor signed into law Senate Bill 1019, which imposes certain new requirements for housing elements. The legislation applies to any housing element adopted or amended after January 1, 1992. Principal among the provisions of the new statute is a requirement that, if an element fails to identify adequate sites for the provision of the housing required by the RHNA, the program portion of the element must: "provide for sufficient sites with zoning which permits owner -occupied and rental multifamily residential use by right, including density and development standards, which could accommodate and facilitate the feasibility of housing for very low and low-income households." MGC:mgc 1910784 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. •CONFIDENTIAL� RICHARDS, WATSON & GERSHON MEMORANDUM Chairman Roberts and Members of the Planning Commission November 15, 1991 Page 3 This would appear to require the City to amend its zoning ordinance to permit multifamily housing in the City, if the element does not identify adequate sites for the nine affordable units and 31 market -rate units required by the RHNA. The draft element concludes at page 38 that the 40 units required by the RHNA can be accommodated on 59 available building sites in the City. Accordingly, this draft does "identify adequate sites to accommodate the need for groups of all household income levels" and the principal new requirement of Senate Bill 1019 may not affect the proposed new element. However, critics of the element could argue that these sites are not "adequate" to meet the City's affordable housing need because the element provides insufficient guarantees that the nine affordable units can in fact be developed. If a court were to accept such a conclusion, the City could be compelled to permit multifamily housing in the City. This risk can be deferred until the 1994 revision of the housing element by adopting the pending draft prior to the end of this year. For this reason, we recommend the City adopt its new element before the end of 1991 if it is possible to do so. On the basis of this advice, staff has noticed a public hearing before the City Council on this draft for December 23, 1991. Accordingly, we recommend that the Commission forward the element and the Commission's recommendations to the City Council as soon as possible. The State housing element law treats all cities alike, even though the circumstances of cities differ dramatically. Uniform application of rules which are suitable for Los Angeles, Long Beach, or Hawthorne to cities like Rolling Hills and other small, bedroom communities makes little sense. At present, state law fails to recognize that not every city can accommodate a diversity of uses. This quandary will require the development of a long-term strategy wholly aside from the adoption of this element. Accordingly, this element represents a beginning, and not the end, of a process that we hope will lead to a more satisfactory resolution of these complex social issues. Please feel free to contact me, Michael Jenkins, or Kevin Ennis if you have questions or comments about the advice stated here. Kevin will be in attendance at the Commission's MGC:mgc 1910784 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. ilkONFIDENTIAL RICHARDS, WATSON & GERSHON MEMORANDUM Chairman Roberts and Members of the Planning Commission November 15, 1991 Page 4 meeting on November 19, 1991 and will be able to provide additional advice at that time. cc: Mayor Pernell and Members of the City Council Craig Nealis Lola Ungar Michael Jenkins Kevin Ennis MGC:mgc 1910784 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. • RICHARDS, WATSON & GERSHON ATTORNEYS AT LAW A propetechoNAL CORfCMTKaN GLENN R. WAT0ON ROPE NT O 0EvlRLY p A Y L 04R9+•o•• OOUQLAE W. AROLJ! MARK L LAmmEM otNn $`rJlwtw E. AD -Ea CAROLD D wt0EA /R!DA.ft>m 4A TMOMAA A •AEAERO. R. ALLEN E. 0-e#NITT ETT V CY L DOA4fY WIll1AM L aTRAy142 Rose AtM OOLGr meO ANT'iONY EDourrriee MRCMEu. E. A/*OTT I.MOTMY L. NlLweLE. ROEERT t. Oe METER ONEGOR'J w 1TEfANICIOM arrG..eL.e ..OWN( DONALD 4TERN M+CnAEL .EMION8 W.LLIAM 8 Jr.JoeL DAVID l coAeN TENIOA a. TRACY Cvwr, M I ARm0ve CAROL W. .YNQM TeAiry A TRVMOLILL COLEr.•MJ WALOM.Ja JOIN A scLeriER jErraCy. RAEIN WILJAM K. KRAUSR CrU0,00 L 00i.RW*N ETEVLN w. KAUNMANN MAAOA .lON®E .AONTwe OAEAORT M. KUNirrer AMANDA P. E6/s4 ONl VALLLAM a IAAV0UMIJIAA pCTT Wl14LI DANIeL ►. TORRE4 TIAMAE U..JIMOO MICH4LI E4AL EAONERIS ROMERT O. 02CCON Noway.. ALttA4 sAYAe WEAVER KiVIN S. ENNIS Pgs,N D MARRY McMAEL 4ETRAAA ;I *ATM 000Pri I_aUN1NC1 *. vvleN!R OAv1O P. WOE eMRia11 MOOIN •Ttv4N w on* OEECRAM R. MAKMAN 4CCTT IC BMINTANI MIGMAEL 2. p0,A?I.)oNO JACK O. BMOJJCOPF DAVID A. RycilaN is TAMAN KIM OARYL T T82MIMA CMAd71NA R. MINTZER maOR A. MU8A E. ALAN RAY JUU5T t la2LANO RUIN 0. WEINtR November 5, 1991 >�a w� CONFIDENTIAL THIS MATERIAL 18 SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DI8CL.09E THE CONTENTS HEREOF. DO NOT FILE wma PUBLJCLY ACCESSIBLE RECORDS. Mr. Craig Nealis City Manager City of Rolling Hills 2 Portuguese Bend Road Rolling Hills, California 90274 Re: Recent Housing Element Legislation WONARO RILi.+AsIO4 .(1S1*-1*M) 11-tiR Y-eioH H FLOOR ja1 SOLrfri MOPE STREET LOS MVC3ELE9, CALIFORNIA 10071-1467 (214) 420-1484 TE'EcoNeA (0-i3) 020--007* 1910754 OUR PILE Nun,THeR R6980-001 [By Telecopier and U.S. Mail] Dear Mr. Nealis: As I promised in our telephone conversation last week, I write to apprise you of a recently adopted statute which changes the law governing housing elements. The statute applies to the adoption or amendment of a housing element after January 1, 1992. Thus, if the City is in a position to adopt the pending revision of its housing element before the first of next year, it may wish to do so. If the City wishes to adopt its element before January 1, 1991, it will have to act promptly to meet thevarious notice requirements. I have discussed these deadlines with Lola Ungar and Karen Warner and it appears that a feasible, though tight, hearing schedule can be developed. If the element is not adopted before the first of the coming year, it must be revised to comply with the legal requirements discussed below. Senate Bill 1019, sponsored by Senator Leroy Greene, was signed by the Governor on October 14, 1991 and was chaptered as Chapter 889 of the Laws of 1991. It adds three new requirements to the process of adopting a housing element. First, and most importantly, the legislation amends Government Section 65583(c)(1), which describes the requirements for the housing program portion of an element, to add' the following language: - SEA- - 3-777A64; RICHARDS, WATSON & t3ERSHUN CON" IDENTIAL Mr. Craig Nealis November 5, 1991 Page 2 THIS MATERIAL W SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUSIJCLY ACCESSIBLE RECORDS. "Where the inventory of sites, pursuant to paragraph (3) of subdivision (a), does not identify adequate sites to accommodate the need for groups of all household income levels pursuant to Section 65584, 1112 p Q ram shell provide for sufficient sites with zoning which germ is owner -occupied nd rental mu1 ifa3n ly residential use by right including density and development s andarcis_t which could accommodate and facilitate the_feasibility of housing for very low and low-income households. For purposes of this paragraph, the phrase 'use by right' shall mean the use does not require a conditional use permit, except when the proposed project is a mixed -use project involving both commercial and residential. uses. Use by right for all rental multifamily housing shall be provided in accordance with subdivision (f) of Section 65589.5." (Emphasis added.) Government Code Section 65589.5(f) provides: "Nothing in this section shall be construed to prohibit a local agency from requiring the development project to comply with deve ••ment standards and policies appropriate ta and cons etent vjth meeting t e quantified objectives relatjve to the development of ,housing, as required in the housing element pursuant to subdivision (b) of Section 65583. Nor shall anything in this section be construed to prohibit a local agency from imposing fees and other exactions otherwise Authorized by law w ch are essential to provide e ssar fce v Qublic sery ces and facilities to the development project." (Emphasis added.) This apparently means that if the City's housing element should conclude that the City lacks sufficient vacant land to provide all the very low- and low-income units assigned by the Regional Housing Needs Assessment (RHNA), the element must commit the City to permit multifamily housing and to allow such housing without requiring a conditional use permit. The October 23, 1991 Draft Housing Element now under consideration concludes at page 38 that the 40 units required by the RHNA can be accommodated on 59 available building sites in the City. Accordingly, this draft does "identify adequate sites to accommodate the need for groups of all household income levels" and the first new requirement of Senate Bill 1019 may not affect the proposed new element. However, critics of the element could argue that these sites are not "adequate" to meet the City's affordable housing need because the element provides insufficient guarantees that RIcHARDS, WATSON & CIERSHoN Mr. Craig Nealis November 5, 1991 Page 3 CONT IDENTIAL THIS MATERIAL 18 SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS NERCO!". DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. the nine affordable units required by the RHNA can in fact be developed. If a court were to accept such a conclusion, the City could be compelled to permit multifamily housing in the City. This risk can be deferred until the 1994 revision of the housing element by adopting the pending draft prior to the end of this year. The changes to the housing element law effected by Senate Bill 1019 are significant for the future as well: if. the City is unable to identify adequate sites to accommodate the housing required by the 1994 or later editions of the RHNA, it may be compelled to permit multifamily housing in the City, perhaps on the school site or on other land not subject to the CC&R's of the Rolling Hills Community Association. Accordingly, Senate Bill 1019 increases the importance of the 1994 RHNA. When that document is released by the Southern California Association of Governments (SCAG), the City will be well advised to review it with care and to seek to persuade SCAG to assign a RHNA goal to the City which can be accommodated on the available land in the City. The statute makes other, less consequential changes to the housing element law. Government Code Section 65400(b) now requires an annual report from the Planning Commission to the City Council on the "status of the [general] plan and progress in its implementation, including the progress in meeting its share of regional housing needs determined pursuant to Section 65584." This statute adopts a new section 65588.5 which requires such reports to be filed with the state Department of Housing and Community Development (HCD) within thirty days of their receipt by the City Council. The statute does not specify any consequence for a failure to file such a report with HCD. The statute adds a section 65589.7 which provides that adopted and amended housing elements "shall be delivered" to public and private water suppliers and that those suppliers shall give a priority to projects which "help meet [the locality's) share of the regional housing need for lower income households as identified in the housing element." The section states that failure to deliver an element to a water provider "shall not invalidate anyaction or approval of a development project." Finally, the statute amends Government Code Section 65583(c)(4) to require an element's housing program to include measures to "conserve and improve the condition of the existing affordable housing stock, which may include addressing ways to mitigate the loss of dwelling units demolished by public or private action." Only the underscored phrase is added, and even this does not appear to be mandatory. RICHARDS. WATSON & DER9H C O N IDENTIAL Mr. Craig Nealis November 5, 1991 Page 4 THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEOE3. 00 NOT DISCLOSE THE CONTENT$ HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. I am informed by Ernie Silva, lobbyist for the League of California Cities, that additional housing legislation will likely be considered by the Legislature in the coming year. As such bills may make further inroads into the City's discretion with respect to land use regulation, the City may wish to contact the League to ensure that its viewpoint is adequately represented. It is my own sense that the viewpoint of small, largely developed communities like Rolling Hills was not well represented in the legislative discussions of Senate Bill 1019. Please call me or Mike Jenkins if you have any questions about the advice stated here. Very truly yours, // Michael G. Colantuono cc: Michael Jenkins Karen Warner MGC:mgc 1910754 JENKINS & HOGIN, LLP A LAW PARTNERSHIP TO: CC: FROM: MICHAEL JENKINS, CITY ATTORNEY NATALIE KARPELES, ASSISTANT CITY ATTORNEY MEMORANDUM RAYMOND CRUZ, CITY MANAGER YOLANTA SCHWARTZ, PLANNING DIRECTOR DATE: MAY 30, 2017 RE: ACCESSORY DWELLING UNITS (ASSEMBLY BILLS 2299 & 2406, AND SENATE BILL 1069) I. Background CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY - ACCESSIBLE RECORDS. The California legislature, in an attempt to address the housing unaffordability, has spent this past year prioritizing several proposals to create a greater supply of more affordable housing. Assembly Bills ("AB") 2299 and 2406, and Senate Bill ("SB") 1069 collectively and significantly impact local authority to regulate accessory dwelling units. Commonly referred to as "second units," accessory dwelling units ("ADUs") are additional living quarters on .single-family lots that are independent of the primary dwelling unit. Also known as accessory apartments, accessory dwellings, mother-in-law units, or granny flats, ADUs are either attached or detached to the primary dwelling unit and provide complete independent living facilities for one or more person; including, permanent provisions for living, sleeping, eating, cooking and sanitation. AB 2299 and SB 1069 effectively render the term "second units" obsolete by replacing that term with "accessory dwelling units;" for this reason, all references to either second units, accessory apartments, accessory dwellings, mother-in-law units, or granny flats shall hereafter be collectively referred to as "accessory dwelling units" or ADUs. Prior to the adoption of these bills, local governments were authorized to adopt ordinances for the creation of second units in single-family zones; however, they were not required to do so. In 1983, the City enacted Chapter 15.44 to prohibit • • JENKINS & HOGIN, LLP MAY 30, 2017 PAGE 2 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY - CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY - ACCESSIBLE RECORDS. the creation of second units in single-family zones.1 The authorization for such a prohibition was conditioned on findings acknowledging that such action may limit housing opportunities, as well as further findings that specific adverse impacts on the public health, safety, and welfare would result from allowing second units within the City.2 Because these uses would result in lack of adequate sewer capacity3; public safety issues related to landslide concerns4 and fire flow requirements5; and lack of adequate parking and traffic flow6, the City established findings sufficient to prohibit second units under state law. However, because the legislature has determined that ADUs can provide for additional rental housing stock, such prohibitions have now been invalidated regardless of the sufficiency of the City's findings in support thereof. SB 1069 and AB 2299 apply a clear standard for the ADU permit review process, regardless of whether a local government has an adopted ordinance or not.7 The legislature has now eliminated the ability of cities to exempt ADUs within their jurisdictions and has required that every city in the state accommodate the creation of ADUs. /// 1 Title 15 of the City's Municipal Code adopts by reference the Los Angeles County Building Code; Chapter 15.44 was enacted as an amendment and exception to the County Code which permitted the construction of ADUs. In order to further clarify the City's position on ADUs, the City enacted Chapter 17.28 in 1993 to provide a prohibition on ADUs in the City's Zoning Code. 2 Former Government Code section 65852.150(c) 3 Rolling Hills Municipal Code section 15.44.020(A) 4 Rolling Hills Municipal Code section 15.44.020(B) 5 Rolling Hills Municipal Code section 15.44.020(D) 6 Rolling Hills Municipal Code section 15.44.020(C) 7 If a local government has an ADU ordinance, that ordinance must include specified provisions for standards such as parking, setback, and zoning requirements. If a local agency has not adopted an ordinance, it must review the application pursuant to these same standards. An application must be ministerially reviewed and approved or disapproved within 120 days after receipt. JENKINS & HOGIN, LLP MAY 30, 2017 PAGE 3 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY - CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY - ACCESSIBLE RECORDS. II. Discussion and Analysis of Options SB 1069 and AB 2299 require the creation of ADUs in single-family residential zones on lots that contain an existing single-family dwelling.8 Specifically, the amendments enacted pursuant to AB 2299 and SB 1069 include specified provisions regarding (among other things) parking, types and size of units, approval process and timelines, and water and sewer utility fees. Signed by the Governor on September 27, 2016, SB 1069 and AB 2299 create a state -mandated local program that took effect on January 1, 2017 and which nullifies any local ordinance that does not comply with the requirements of these bills.9 Parking: The City cannot require parking separate from parking required for primary dwellings if an ADU is: (1) located within half a mile of "public transit;10" (2) located within an "architecturally and historically significant historic district;11" or (3) part of an existing primary residence or an existing accessory structure12. Similarly, the City cannot require parking for an ADU when on -street parking permits are required but not offered to the occupant of the ADU13, or when there is a car share vehicle located within one block of the ADU14. 8 See Government Code section 65852.2(a)(1)(D)(ii) 9 While AB 2299 differed in some aspects from SB 1069, because both SB 1069 and AB 2299 were approved by the Governor, the reconciliation language of the two bills provides that the language of SB 1069 prevails. 18 See Government Code section 65852.2(d)(1); note that this term is not defined by Government Code section 65852.2 11 See Government Code section 65852.2(d)(2); note that these terms are not defined by Government Code section 65852.2 12 See Government Code section 65852.2(d)(3) 13 See Government Code section 65852.2(d)(4) 14 See Government Code section 65852.2(d)(5) • • JENKINS & HOGIN, LLP MAY 30,2017 PAGE 4 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY - CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY - ACCESSIBLE RECORDS. For ADUs not described above, parking requirements shall not exceed one parking space per unit/bedroom15; furthermore, off-street parking shall be permitted in setback areas in locations determined by the City or through tandem parking16. Types and Size of Units: An ADU can be attached to the existing dwelling; located within the living area of the existing dwelling; or located on the same lot.17 The increased floor area of an attached ADU may not exceed 50 percent of the existing living area (with a maximum increase in floor area of 1,200 square feet).18 The total floor space for a detached ADU shall not exceed 1,200 square feet.19 Additionally, the City may not require any passageway in conjunction with the construction of an ADU.20 For an existing garage that is converted to an ADU, the City may not impose setback requirements.21 Approval Process and Timelines: Due to the fact that the City does not have an existing ordinance regulating ADUs, or in the event that the City chooses not to adopt such an ordinance, the City is required to accept an application for an ADU and approve or disprove the application ministerially (without discretionary review) within 120 days after receiving the application.22 is However, these spaces may be provided as tandem parking on an existing driveway; see Government Code section 65852.2(a)(1)(D)(x)(I) 16 This requirement shall not apply where specific findings are made that parking in setback areas or tandem parking is not feasible based on specific site or regional topographical or fire and life safety conditions, or that it is not permitted anywhere else; see Government Code section 65852.2(a) (1) (D) (x) (II) 17 See Government Code section 65852.2(a)(1)(D)(iii) 18 See Government Code section 65852.2 (a) (1) (D) (iv) 19 See Government Code section 65852.2(a)(1)(D)(v) 20 See Government Code section 65852.2(a)(1)(D)(vi) 21 See Government Code section 65852.2(a)(1)(D)(vii) 22 See Government Code section 35852.2(b) • • JENKINS & HOGIN, LLP MAY 30, 2017 PAGE 5 Water and Sewer Utility Fees: CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY - CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY - ACCESSIBLE RECORDS. For ADUs within existing structures in a single-family zone, the City may not require an applicant to install a new or separate utility connection directly between the ADU and the utility.23 Similarly, the City may not require the installation of a new or separate utility connection if the ADU is located within the existing space of a single-family residence or the existing space of an accessory structure on a single- family lot.24 For ADUs within new structures, the City may require an applicant to install a new or separate utility connection directly between the ADU and the utility.25 The connection fee or capacity charge shall be "proportionate to the burden of the proposed accessory dwelling unit, based upon either its size or the number of its plumbing fixtures, upon the water or sewer system."26 The fee or charge may not exceed the reasonable cost of providing the water or sewer service.27 Junior Accessory Dwelling Units: 23 See Government Code section 35852.2(f)(2)(A) 24See Government Code section 35852.2(f)(2)(A) 25 See Government Code section 35852.2(f)(2)(B) 26 See Government Code section 35852.2(f)(2)(B) 27 See Government Code section 35852.2(0(2)(B) JENKINS & HOGIN, LLP MAY 30, 2017 PAGE 6 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY - CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY - ACCESSIBLE RECORDS. Lastly, AB 2406 creates special rules for junior accessory dwelling units ("JADUs") - units which are no more than 500 square feet and part of the residential unit. This bill would clarify that JADUs are not second units and are not subject to the same restrictions. The City is not required to adopt an ordinance specific to JADUs; however such an ordinance would allow the City to: • Limit the number of JADUs to one per existing single-family residence in a single-family zone28; • Require owner -occupancy of the single-family residence in which the JADU is located29; • Prohibit the sale of the JADU separate from the sale of the single-family residence3o; • Require the inclusion of an existing bedroom in the JADU31; • Require that the JADU have a separate entrance32; and • Require that the JADU have an efficiency kitchen33. The ordinance, however, may not require additional parking34, or consider JADUs to be a separate or new dwelling unit for the purposes of fire or life protection, or for the purposes of water, sewer or power connection fees35. No fees or regulations may be imposed on a single-family residence that contains a JADU unless such fees or regulations are imposed on single-family residences generally.36 Upon receiving an application for a JADU, the City shall either approve or disprove the application ministerially (without discretionary review) within 120 days after receiving it.37 28 See Government Code section 65852.22(a)(1) 29 See Government Code section 65852.22(a)(2) 38 See Government Code section 65852.22(a)(3)(A) 31 See Government Code section 65852.22(a)(4) 32 See Government Code section 65852.22(a)(5) 33 See Government Code section 65852.22(a)(6) 34 See Government Code section 65852.22(b)(1) 3s See Government Code section 65852.22(e) 36 See Government Code section 65852.22(f) 37 See Government Code section 65852.22(c) JENKINS & HOGIN, LLP MAY 30,2017 PAGE 7 III. Recommended Action CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY - CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY - ACCESSIBLE RECORDS. Accordingly, the City is required to amend Chapters 15.44 ("Second Units on Single Family Lots") and 17.28 ("Second Units on Single Family Lots") of the Rolling Hills Municipal Code and the Land Use Controls Section in the Housing Element of the City's General Plan in order to conform to state law. Staff will be placing an item on a future agenda of the Planning Commission to amend Chapters 15.44 and 17.28; following the Planning Commission's consideration of these amendments, the item will eventually be presented to the City Council. If you have any questions, please let me know. • JENKINS & HOGIN, LLP A LAW PARTNERSHIP MEMORANDUM TO: Craig Nealis Sharon Perlstein Rick Morgan FROM: Michael Jenkins DATE: May 24, 2004 RE: Status of NPDES permit litigation The purpose of this memorandum is to provide an update on the NPDES Permit litigation. As you will recall, the lawsuit challenges the validity of the Los Angeles Regional Water Quality Control Board's Municipal NPDES Permit issued for Los Angeles County, and all Cities within the County, except the City of Long Beach. The City is named as a real party in interest in the litigation, but as per our previous discussions, is not actively participating in the lawsuit. Up to this point, the following matters of significance have occurred: • The parties were ordered to mediation, but that failed to resolve the issues in dispute. • The parties prepared an administrative record consisting of 36 boxes of documents, including all documents pertaining to NPDES permits from 1990 and 1996. • The judge dismissed certain causes of action brought by the plaintiffs, and ordered that the trial be bifurcated and conducted in two phases. The following claims that have been raised by the plaintiffs remain to be decided in the trial: claims based on the Regional Board's failure to comply with the MEP standard, its failure to: include a "safe harbor" in the Permit; its failure to consider "economics" or to conduct a cost/benefit analysis; its failure to comply with and adhere to the environmental review requirements under CEQA; its interference with the Permittees land use authority; the legal deficiencies with the Inspection requirements within the Permit; the various challenges to the SUSMP provisions; the challenges based on Water Code § 13360 (i.e. imposing particular design requirements or compliance requirements with the Permit, e.g. installing and maintaining trash receptacles at all transit stops); the illegality of the Permit terms that attempt to regulate discharges "into" the municipal storm drain system, as opposed to discharges "from" the municipal storm drain system; and various other challenges to the terms of the Permit. The first phase of the trial is occurring on May 19 and 20, and the second phase on August 10 and 11, 2004. • • JENKINS & HOGIN Page 2 May 20, 2004 I will keep you advised of any significant developments in the trial, and of course, any decision by the court. In the meantime, please let me know if you have any questions. JENKINS & HOGIN, LLP A LAW PARTNERSHIP MEMORANDUM TO: MICHAEL JENKINS, CITY ATTORNEY FROM: ELIZABETH M. CALCIANO DATE: NOVEMBER 12, 2011 RE: RETROSPECTIVE CHALLENGE TO VIEW PROTECTION ORDINANCE ISSUE CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY - ACCESSIBLE RECORDS. The City of Rolling Hills is processing an application for a restoration action under the View Preservation Ordinance (Rolling Hills Municipal Code Chapter 17.26). The Greenbergs, who are the owners of the vegetation in this case, will likely argue that the View Protection Ordinance that applies to vegetation, regardless of when planted, constitutes an impermissible retroactive application of the law that effects a taking of property. SHORT ANSWER Courts of appeal have consistently upheld similar ordinances against such challenges. My research revealed no contrary holding. DISCUSSION California courts have upheld ordinances that protect views as a valid exercise of the police power. The police power provided to municipalities under the Constitution (Art 11, sec. 7) is broad and includes protection of aesthetic values. In Ross v. City of Rolling Hills Estates•(1987) 192 Cal. App. 3d 370, the California Court of Appeal upheld the City's denial of construction of a second story on a house in RHE on the ground that the additional height would obstruct views. The court held that the ordinance was not JENKINS & HOGIN, LLP NOVEMBER 12, 2011 PAGE 2 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY - CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY - ACCESSIBLE RECORDS. impermissibly vague and that view protection was a valid exercise of the City's zoning power. In 1998, the Court of Appeal in Kucera v. Lizza (1998) 59 Cal. App. 4th 1141, extended that rule to view preservation from foliage, holding that the Town of Tiburon could validly protect views from foliage. This holding was followed in Echeverrieta v. City of Rancho Palos Verdes (2001) 86 CaL App. 4th 472, in which the property owner sued the City alleging that the City's tree preservation ordinance, adopted by initiative, was unconstitutional, impermissibly vague and constituted a taking of property. The appellate court in Echevarrieta addressed the retroactive issue directly in a challenge to a Rancho Palos Verdes. The court described the ordinance in that case as follows: "In pertinent part, the Ordinance prohibits residents of the City from significantly impairing a view by permitting foliage to grow in excess of certain height limitations. If foliage in existence already exceeds those height limitations, the person whose view is impaired must first attempt to informally resolve the matter with the person who owns the foliage, and if that fails, may apply for a "view restoration permit." Hearings on the application for the permit are conducted by a view restoration Commission (VRC), a committee,of seven members appointed by the City Council. The VRC may grant the permit only if certain specified findings are made. If the VRC orders any foliage trimmed or removed, or replacement foliage is ordered planted, the costs are to be borne by the permit applicant. Any interested party may appeal the VRC's decision to the City Council." In that case, the court dismissed the retroactive application challenge as follows: "Appellant contends that retroactive application of the Ordinance amounts to irrational and arbitrary action. He also argues that the u JENKINS & HOGIN, LLP NOVEMBER 12, 2011 PAGE 3 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY - CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY- ACCESSIBLE RECORDS. Ordinance allows view seekers to exact retribution against foliage owners and that the VRC did not appropriately balance the interests of the two property owners. In support of these arguments, he cites Eastern Enterprises v. Apfel, supra, 524 U.S. 498. In Eastern, a company that formerly was in the coal mining business left that industry. Several years later, the Coal Industry Retiree Health Benefit Act of 1992 (Coal Act) was enacted, providing for assigned benefits to retirees in the coal industry. The effect of this act was to impose $50 million to $100 million worth of liability on the company based on its activities 30 to 50 years earlier. (524 U.S. at pp. 503, 516-517 [118 S.Ct. at pp. 2137, 2143].) The company sued, claiming there was a taking and a violation of due process rights. (524 U.S. at pp. 517, 529 [118 S.Ct. at pp. 2143, 2149].) In concluding that the company's claims had merit, the Supreme Court noted that retroactive legislation is generally . disfavored. It presents problems of unfairness because it can deprive citizens of legitimate expectations and upset settled transactions. (Eastern Enterprises v. Apfel, supra, at pp. 532, 533 [118 S.Ct. at p. 2151].) The court concluded that the length of time that the Coal Act reached back to impose liability on the company and the magnitude of the liability raised substantial fairness question. Here, there is no automatic retroactive reach of the ordinance. Homeowners are allowed to keep foliage at the height it existed on the effective date of the Ordinance. It is only when another homeowner applies for a view restoration permit that the inquiry begins whether the foliage must be trimmed to a lower height. (See discussion, infra, on vagueness claim.)" Another case issued last month, although listed as not to be published and is thus not citable, relied on Echeverrieta and reached the same conclusion regarding a City of Oakland ordinance. A substantial part of the opinion is pasted below because it provides a good explanation of the Escheverrieta case and rebuts arguments that the Greenberg's may raise in this case: u JENKINS & HOGIN, LLP NOVEMBER 12, 2011 PAGE 4 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY - CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY - ACCESSIBLE RECORDS. "Defendants argue that application of the amended View Ordinance to them "constitutes an impermissible retroactive application of the law" that "effects a 'taking' of the Hanes property." We disagree, because the law, as applied to them, is prospective in application and, even if it were retroactive, it would not constitute a taking or otherwise violate due process, as explained in Echevarrieta, supra, 86 Ca1.App.4th 472. "A statute has retrospective effect when it substantially changes the legal consequences of past events." (Western Security Bank v. Superior Court (1997) 15 Ca1.4th 232, 243 (Western).) In this case, the amended ordinance was applied to view obstructions that postdated the 2004 and 2006 amendments: the Bishops did not request reconciliation and mediation under the ordinance until 2007. The fact that existing trees may or may not have obstructed the Bishops' views before 2004 does not mean that the ordinance is retrospective in its application. "A statute does not operate retrospectively simply because its, application depends on facts or conditions existing before its enactment." (Ibid.) In any event, even if the amendments changed, rather than clarified the View Ordinance, the City Council's declarations of intent reflected a "purpose to achieve a retrospective change.... '[W]e must give effect to this intention unless there ig!s some constitutional objection thereto.' "(Western, supra, 15 Ca1.4th at p. 244.) Defendants object that retrospective application of the amended View Ordinance to them constitutes a "taking" and denies them due process. The same contention was rejected on strikingly similar facts in Echevarrieta, supra, 86 Ca1.App.4th 472. In that case, the City of Rancho Palos Verdes enacted a view protection ordinance that prohibited residents from permitting vegetation to grow beyond certain height u JENKINS & HOGIN, LLP NOVEMBER 12, 2011 PAGE 5 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY - CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY- ACCESSIBLE RECORDS. limitations if it would significantly impair another resident's view. (Id. at p. 475.) If existing vegetation already exceeded the height limitation and impaired a view, the ordinance required the view owner to first attempt informal resolution of the matter with the vegetation owner. If that failed, the view owner could apply to the view restoration committee (VRC) for a view restoration permit. (Ibid.) After a hearing, the VRC could order the removal or replacement of vegetation, at the view owner's expense. Any interested party could appeal to the City Council of Rancho Palos Verdes. In Echevarrieta, the permit seeker had views of the Pacific Ocean and Catalina Island which were obstructed by the down slope neighbor's trees. (Id. at pp. 475-476.) After multiple hearings before the VRC, the down slope neighbor was required to remove some trees and trim others, and the view permit seeker was required to plant shrubs between his property and his neighbor's to mitigate his neighbor's privacy concerns. (Ibid.) After the City Council of Rancho Palos Verdes rejected the down slope neighbor's appeal, he unsuccessfully sued the City of Rancho Palos Verdes. (Id. at pp. 476- 477.) On appeal, the down slope neighbor argued that the ordinance violated the takings clauses of the Fifth Amendment to the federal Constitution, and article 1, section 19 of the California Constitution. (Echevarrieta, supra, 86 Ca1.App.4th at pp. 479-480.) He also argued that retroactive application of the ordinance deprived him of due process. (Id. at p. 482.) The Court of Appeal rejected both arguments. With respect to the takings clause contention, the Echevarrieta court ruled that the imposition of limitations on the height of preexisting foliage was a legitimate exercise of the police power which did not rise to the level of a taking under well -established precedent. (Id. at pp. 479481.) With respect to the due process contention that retroactive application of the ordinance amounts to irrational and arbitrary action, the court held that the ordinance was not irrational or arbitrary because "there is no automatic retroactive reach of the ordinance. u JENKINS & HOGIN, LLP NOVEMBER 12, 2011 PAGE 6 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY - CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY - ACCESSIBLE RECORDS. Homeowners are allowed to keep foliage at the height it existed on the effective date of the Ordinance. It is only when another homeowner applies for a view restoration permit that the inquiry begins whether the foliage must be trimmed to a lower height.... [¶] In addition, there is no showing that the ordinance was applied in an arbitrary or irrational manner. [Citation.] The ordinance requires first resort to informal dispute resolution and provides for noticed hearings andrights of appeal. [Plaintiff] and the City Council duly followed all the required steps." (Id. at p. 482.) In our view, Echevarrieta is dispositive of defendants' takings clause argument. Oakland's View Ordinance, too, is a proper exercise of the police power. Furthermore, we are not persuaded by defendant's arguments that the differences between the Oakland and Rancho Palos Verdes ordinances render Echevarrieta inapposite on the due process issue. Both ordinances operate retrospectively in the same way: Homeowners are allowed to keep their vegetation at preexisting heights, unless a neighbor complains that his or her views are obstructed. At that point, both ordinances encourage informal mediation to resolve the conflict. Under the Rancho Palos Verdes ordinance, if mediation fails to resolve the conflict, hearings and appeals ensue. Under the Oakland ordinance, if mediation fails, the ordinance creates a private cause of action, and places "the burden of proving the alleged view obstruction and the suitability of the proposed restorative actions" on the view claimant. (Oakland Mun.Code of Ord., tit. 15, ch. 15.52, § 15.52.090, subd. (C).) Ultimately, a judge decides, based on enumerated statutory factors, and, as this case demonstrates, the losing party may appeal. The Oakland ordinance provides fair notice and procedural protections that are comparable, if not identical to, the ones provided by the Rancho Palos Verdes ordinance. Defendants have not demonstrated that the Ordinance is arbitrary or irrational in application. Their due process rights were not violated." u JENKINS & HOGIN, LLP NOVEMBER 12, 2011 PAGE 7 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY - CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY - ACCESSIBLE RECORDS. u RECEIVED JENKINS &HOG1N, LLP A LAW PARTNERSHIP NOV 2 0 2013 City of Rolling Hills By TO: FROM: DATE: MEMORANDUM YOLANTA SCHWARTZ, PLANNING DIRECTOR MICHAEL JENKINS, CITY ATTORNEY DAVID KING NOVEMBER 7 2013 RE FEES FOR ROOFTOP SOLAR ENERGY SYSTEMS ISSUES PRESENTED CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. 1. Does the new California law relating to fees for rooftop solar energy systems apply to both the City and the Rolling Hills Community Association (RHCA)? 2. If the County of L.A. imposed $488.90 in solar panel fees, plus $99.30 to upgrade an electric panel in order to install the" solar panels, can the electric panel charge be considered a separate item, not related to solar panels installation? BACKGROUND Senate Bill No. 1222 took effect on January 1, 2013. The new law, which is included at the end of this memorandum for your reference, effectively "caps" permit fees for rooftop solar energy systems. A homeowner in the City has advised the City that the County of L.A. charged him $488.90 for solar panel fees, plus $99.30 to upgrade an electrical panel. According to the County Building Department, the $99.30 charge is a separate, electrical permit issuance fee and does not JENKINS &HOGIN, LLP NOVEMBER 7, 2013 PAGE 2 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. directly relate to the solar panels installation. The homeowner also advised that the RHCA intends to charge him an additional $315. Lastly, you have also advised that the City has a $60.11 administrative fee, but the County inadvertently did not include the City's administrative in the $488.90 fee: DISCUSSION Question No. 1: Does the new California law relating to fees for rooftop solar energy systems apply to both the City and RHCA? The new law states that "[f]or'a residential rooftop solar energy system ... [a] city, county, city and county, or charter city shall not charge a residential permit fee that exceeds the estimated reasonable cost of providing the service for which the fee is charged. Except as provided in paragraph (2), that fee shall not exceed five hundred dollars (S500) plus fifteen dollars ($15) per kilowatt for each kilowatt above 15kW" (Gov. Code § 66015(a)(1).) The term "residential permit fee" is defined as the "sum of all charges levied by a city, county, city and county, or charter city in connection with the application for a rooftop solar energy system" (Id at (e)). The new law clearly applies to both the City and County of L.A. In Rolling Hills, the County acts as the City's agent in issuing building permits. Thus, the $500 cap (plus $15 per kilowatt above 15kW) would apply to the County's residential permit fee for all charges related to the application for a rooftop solar energy system. JENKINS &HOGIN, LLP NOVEMBER 7, 2013 PAGE 3 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. In this instance, the City's administrative fee of $60.11 may not be imposed because it exceeds the cap. The law provides that the County and City may exceed the cap if certain written findings are made (see Gov. Code § 66015(c)). Given the nominal amount of the administrative fee, however, we recommend that the City waive the fee. The new law does not, on its face, apply to private entities. Associations such as the RHCA are regulated by the Davis -Stirling Act and an association is defined as "a nonprofit corporation or unincorporated association" (Civ. Code § 1351(a)). The new law, by its terms, only applies to cities, counties, and charter cities. As an aside, state law prevents associations from increasing the installation costs of solar panels by more than $2,000 (Civ. Code § 714). Question No. 2: Can the electric panel charge be considered a separate item, not related to solar panels installation? The new law defines "residential permit fee" as the "sum of all charges levied by a city, county, city and county, or charter city in connection with the application for a rooftop solar energy system" (Gov. Code § 66015(e) (emphasis added)). The answer to this question depends on whether the electric panel charge is "in connection with" the overall application for a solar panel. It appears that County considers the electrical permit issuance fee to be unrelated to the solar panels installation, in which case the fee would not be subject to the $500 cap. California Government Code JENKINS &HOGIN, LLP NOVEMBER 7, 2013 PAGE 4 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY- CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. Chapter 7.5. Fees for Rooftop Solar Energy Systems Section 66015. (a) For a residential rooftop solar energy system that produces direct current electricity: (1) A city, county, city and county, or charter city shall not charge a residential permit fee that exceeds the estimated reasonable cost of providing the service for which the fee is charged. Except as provided in paragraph (2), that fee shall not exceed five hundred dollars ($500) plus fifteen dollars ($15) per kilowatt for each kilowatt above 15kW: (2) Notwithstanding paragraph (1), a city, county, city and county, or charter city may charge a residential permit fee for a rooftop solar energy system that exceeds the fees specified in paragraph (1) if, as part of a written fmding and an adopted resolution or ordinance, it provides substantial evidence of the reasonable cost to issue the permit. (b) For a commercial rooftop solar energy system that produces direct current electricity: (1) A city, county, city and county,or charter city shall not charge a commercial permit fee that exceeds the estimated reasonable cost of providing the service for which the fee is charged. Except as provided in paragraph (2), the fee shall not exceed one thousand dollars ($1,000) for systems up to 50kW plus seven dollars ($7) per kilowatt for each kilowatt between 51kW and 250kW, plus five dollars ($5) per kilowatt for each kilowatt above 250kW. (2) Notwithstanding paragraph (1), a city, county, city and county, or charter city may charge a commercial permit fee for a rooftop solar energy system that exceeds the applicable fee specified in paragraph (1) if, as part of a written finding and an adopted resolution or ordinance, it provides substantial evidence of the reasonable cost to issue the permit. (c) A written finding , adopted pursuant to subdivision (a) or (b) shall include all of the following: JENKINS &HOG1N, LLP NOVEMBER 7, 2013 PAGE 5 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. (1) A determination that the municipality has adopted appropriate ordinances, permit fees, and processes to streamline the submittal and approval of permits for solar energy systems pursuant to the practices and policies in state guidelines and model ordinances. (2) A calculation related to the administrative cost of issuing a solar rooftop permit. (3) A description of how the higher fee will result in a quick and streamlined approval process.. (d) For purposes of this section, "administrative costs" means the costs incurred in connection with the review, approval, and issuance of the permit, and the hourly site inspection and followup costs, and may also include an amortization of the costs incurred in connection with producing a written finding and adopting an ordinance or resolution pursuant to subdivision (a) or (b). (e) For purposes of this section, "residential permit fee" means the sum of all charges levied by a city, county, city and county, or charter city in connection with the application for a rooftop solar energy system... (f) It is the intent of the Legislature that a city, county, city and county, or charter city that meets the obligations of subdivisions (a) and (b) receive priority access to state funds for the purposes of distributed energy generation planning, permitting, training, or implementation. (g) This chapter shall remain in effect only until January 1, 2018, and as of that date is repealed. 08/'05/2013 22:17 316643 EGEIVED 08/0E-2013 10:17 8103777288 ROLLING—HIILS CITY JENKINS & PIDGIN 1111 PAGE 01/18 JENKINS HOGIN, LIT A LAW PARTNERSHIP MANHATTAN TOWERS 1230 ROSECRANS AVENUE, SUITE 110 MANHATTAN BEACH, CALIFORNIA 90266 (310)643-8448 FAX (310) 643-8441 w'ww.LocALGOVLAW.COM RECEIVED AUG 0 6 2013 FAX COVER SHEET B City of Rolling Hills Y FAX NUMBER TRANSMi'I EED TO: (310) 377-7288 To: Yolanta Schwartz, Planning Director From: David King Client/Matter: Landscaping Guidelines DOC TMENTS NUMBER OF PAGES* ' Resolution - please see page (6) in particular _ 17 'excluding this page The information contained in this facsimile is confidential and maybe protected by attorney -client communication or work product privileges. The information is intended solely for the use of the individual or entity to whom it is addressed. If you are not the intended recipient, you are hereby notified that any use or distribution of This material is prohibited. Please notify us by telephone and return the original by U.S. mail to the address above. Thank you - If there are problems with the transmission of this documents, please call (310) 643-8448 ECEIHED08/05/20t1-0:17 3-103777288 ROLLING-HIItSCITY 08/05/2013 22:17 31064'3 JENKINS & HOGIN 41, PAGE 02/18 RESOLUTION NO.: 1675 A RESOLUTION OF THE CITY COUNCIL Or THE CITY OF SANTA PAULA ESTABLISHING GUIDELINES FOR THE PREPARATION OF LANDSCAPE AND IRRIGATION PLANS CDP. No. : 89-12 APPLICANT: City'Initiated WHEREAS, the City of Santa Paula's General Plan sets standards for compatibility of structures and site plans with neighboring devel- opment within all zoning categories and recommends zoning and code provisions which will assure good design and functionality within projects; and WHEREAS, the City has been limited in assuring that these recom- mended standards for landscaping are met due to lack of guidelines for the preparation of landscape and irrigation plans; and WHEREAS, the city Council and Planning commission have found that the creation of guidelines for the preparation of landscape and irrigation plans will enable the City to assure that projects are attractive and will function well once construction has been complet- ed and will allow the city to disapprove poor quality projects. WHEREAS, by Resolution No. 2988, the Planning Commission has reCOMmended to the City Council of the City of Santa Paula that the Guidelines for the Preparation of Landscape and Irrigation: Plans, attached hereto as Exhibit A and incorporated herein as if set forth in full„ be adopted. NOW, THEREFORE the City council of the city of Santa Paula here- by approves and establishes these Guidelines for the Preparation of Landscape and Irrigation Plans, attached hereto as Exhibit A and incorporated herein as if set forth in full. PASSED and ADOPTED this e -2,09.6A day of City of ant= Paula ATTEST: r , City of Santa Paula 1989. RECEIVED 08/06/2013 10:17 3103777288 ROLLING HIILS CITY 08/05/2013 22:17 310643 JENKINS & HOGIN L11111 PAGE 03/18 • EXHIBIT "A" CITY OF SANTA PAULA GUIDELINES FOR.PREPARATION OF LANDSCAPE AND IRRIGATION PLANS Design. Guidelines, standard Conditi99,§_2±,2EsimlA and,Application Requirements I. DESIGN GUIDELINES FOR SITE AND LANDSCAPE PLANS It is the intent of these guidelines to offer as much opportuni- ty for creativity as possible when designing the required landscap- ing. The applicant is encouraged to take full advantage of the wide range of landscape materials and designs possible within the frame- work established by these guidelines. However, merely satisfying the minimum requirements will not insure approval. The Planning Commis- sion is concerned with how the landscape space is used, how it re- lates to the structures on site and to the surrounding area. The Planning Commission will look, carefully at the selection and size of the plant materials, their arrangement and grouping and their appro- priateness in relation to the environment. and proposed structures. The use of plants and irrigation systems that conserve water will be strangly encouraged., as will the design of landscapes for fire safe- ty. Strong review emphasis will be placed on the appropriate design elements, i.e. stones and other natural materials anei structural elements, i.e. decks, walks, patios, etc. A. GENERAL 1. The Planning Commission will require landscape plans that meet the following percentages of lot laraccaped for these land uses: a. Industrial 15% b. Commercial 20% 0. Institutional 20% d. Office . 20% e. Residential ....(as specified in the permit) f. Multi -family residential . 40% plus areas of buffers and streetscape zones Landscape percentages shall be computed on the basis of the net site area which includes the area of all structures, drives, walks and parking an the site, but not areas dedi- cated for public right-of-way. Perimeter and ulterior parking lot landscaping may be credited to the overall site landscaping percentages. 2. Landscaping around the full perimeter of the site adjacent to the property lines is encouraged. Generally, an area adjacent to a public right-of-way should have landscaping' increasing in proportion as the scale, width and height of the structures increases. (1) RECEIVED 08/06/2013 10:17 3103777288 ROLLING HIILS CITY 08/05/2013 22:17 310642 JENKINS & HOGIN PAGE 04/18 3. Each landscape plan shall be compatible with the shape and topography of the site and the architectural characteris- tics of the structures on the site. Each landscape plan, should be compatible with the character of adjacent land- scaping, provided the euality.of the adjacent landscaping meets the standards• cf these guidelines. Of particular concern is the ultimate size of the plants in relationship to the scale of surrounding development. 4. Each landscape plan should illustrate a concern for design principles such as balance, scale, texture, form and unity. 5. Each landscape plan should address the functional aspects of landscaping such as drainage, microclimate/appropriate planting, erasion prevention, wind barriers, provisions for shade, sound absorption, dust abatement and reduction of glare. 6. The plant material selected shall he capable of healthy growth te both micro a within and macro and water availability soil,ven range of availability (see plant list,?ttach- ment 1) . 7. The size and spacing of plants at planting time should provide the desired effect within a reasonable period of time and also provide for mature growth and minimize mainte- nance. 8. Landscaping should be used to relieve solid, unbroken eleva- tions and to soften continuous wall expanses. 9. The landscaping shall permit adequate sight -distance for motorists and pedestrians. LO. Trees and shrubbery shall be arranged so landscaping andscap nd s not interfere with the effectiveness of signage, parking • lot and street lighting or create inappropriate visual barriers. 11. The use of design elements such as architectural features, _ sculptures or fountains is encouraged. The use of local stone for walls, architectural features, etc. is encouraged. 12. The use of materials such as crushed rock, redwood bark, chips, pebbles and stone or masonry slabs in place of live plant materials shall be discouraged. Artificial plant material is not acceptable. B. PLANTING FOR FIRE SAFETY Fire safety begins with isolating structures from fire hazard conditions by modifying and managing landscapeobu butter eraof fat1nt- 150 feet around buildings. W�. ha zones and planting treatments can be established. (2) RECEIVED 08/06/2013 10:17 3103777288 08/05/2013 22:17 310641 JENKINS a HOGIN411, t ROLLING HIILS CITY PAGE 05/18 The defensible space is divided into four zones as described below. Plants are chosen and pruned to provide.less fuel volume, so they are less flammable and there is space for firefighters and equipment to operate safely. Most existing trees can remain but all should be pruned high. In your garden, you may have to compromise between appearance and. safety. The numbers after each zone indicate the recommended width of that zone. Use the .smaller number if you live in a low hazard area, the greater if you live in an area of high fire risk. pone 1, 30 to 50 feet - Domestic planting. The planting which is located around buildings should be careful- ly placed and consist of species which do not readily catch fire. Do not compromise buffer treatment by creating heavily planted landscapes which are susceptible to fire during the dry season. In addition, to avoid plants that burn easily, we should limit the amount of tall trees and make efforts to thin foliage and dead branches from large plants next to our houses. Immediately surrounding your house,. use slow -to -ignite plants. mostly ground covers and low shrubs. Such plants include dwarf Oleander, fortnight lily and Natal plum. *Acceptable domestic plant species:. Arbutus uaeda Strawberry Tree Arctastaphylas species Manzanita Ceratonia siliqua . Carob Tree Cercis occidentalis Western Redbud Convoivulus cnerorum Bush Morning Glory Feijoa sellowiana pineapple Guava Metrosideros excelaus New Zealand Christmas Tree Myoporuni species .. Myoporum Nerium oleander oleander Pittosporum species Pittosporum Prunus species Evergreen Cherry Punica granatum Pomegranate Pyracantha species Firethorn Rhamaus alaternus Italian Buckthorn Ribes species Current, Gooseberry Sch pus terebinthifo1ius Brazilian Pepper Simaondsia chinensis Jojoba Tecamaria capensis ... Cape Honeysuckle Undesirable domestic plants species: Acacia species Acacia Cedrus species Cedar Cupressus species Cypress Dodonaea viscose Hopseed Bush Eucalyptus species Eucalyptus Juniperus species Juniper Pennisetum Fountain Grass PinuS species Pine (3) RECEIVED 08/06/2013 10:17 31©3777288 ROLLING HIILS CITY 08/05/2013 22:17 3106 41 JENKINS & HOGIN 1111 PAGE 06/18 *These plants are able to survive limited supplemental water, as well as show moderate fire retardance. Other plants are.suit- able for domestic planting in high fire hazard areas but require ample amounts of moisture for best performance. Zone 2, 30 to 50 feet - Fire retardant planting. The third planting zone .establishes the maximum fire prevention edge. The use of low gra' undcover plants which .receive regular irrigation will be best suited to stop any ground fire that could reach this area. .The low foliage level, in combination with high moisture content, is the key to this planting. Noth- ing zn this zone should be over 18 inches high and a regular program of watering and weed control is necessary. Depending upon the degree of fire risk, this planting can vary from 25-50 feet in width in order to achieve the appropriate level of safe- ty. While there are some drought tolerant plants which can provide good fire safety in this zone, we should invest a little more water and maintenance to achieve the maximum fire barrier well away from our homes. This drip -irrigated zone uses mostly low - growing ground covers such as Cape weed, coyote brush, dwarf ice plant and gazania. Also in this zone are fleshy succulents such as jade plant and sedum and shrubs such as oleander and star jasmine. Low growing, high fire retarding plants: Carpobrotus species Oelosperma 'Alba' Drosanthemum floribundum Lampranthus spectabilis Malephora crocea Sea Fig White Trailing Ice Plant Rosea Ice Plant Trailing Ice Plant Croceum Ice Plant Low growing, moderate fire Arctotheca calendula Baccharis pilularis Coprosma kirkii retarding plants Cape Weed Prostrate Coyote Bush Creeping Coprosma Gazania rigens leucolaena .. Trailing Gazania Lippia cafescens Lippia Myoporum parvifolium Myoporum osteosperm ua fruticosum. African Daisy Santol.ina species Lavender Cotton Trifolium fragiferum var. O'Connor's O'Connor's Legume Vince species periwinkle. Zone 3, 30 to 100 feet - Low volume, slow burning planting. This area is the transition between low -volume, slow -burning ground covers and plants native to your area.. Selected native and introduced plants which offer some natural character should be in this zone. Growing here are shrubs such as rockrosc and buckwheat which have low fuel volume and water needs. Plants with low profile anti lzmited foliage mass can diminish the rate (4) 08/05/2013 22:17 31064.E RECEIVED 08/06/2013 10:17 3103777288 ROLLING HIILS CITY JENKINS & HOGIN PAGE 07/18 and intensity of fires as well as' provide reasonable soil cover- age. Seeds or container plants for this zone will need some supplemental water to become established but the proper species will survive with natural moisture after one or two seasons. Invasive grasses and large or crowded plants must be removed by periodic maintenance. Any plant that is surviving without supplemental water will have very low moisture content in their leaves during the dry summer months. The effectiveness of this planting is achieved by slow- ing fires with plants that have little to burn. A mixture of plant types is a good idea, as site conditions vary and differ- ent species will survive better in different locations. Plants which are considered of value in low volume, slow burning land- scape zone include: Low fuel volume native plants: Eriophy'llum species Yarrow Eschscho1zia ca1$fornica . _ . california Poppy Lotus scoparius Deerweed Lupinus species Annual Lupines Mimulus species Monkey Flower Penstemon species Pensteraon Salvia coLumbariae . Chia Salvia sonomensis Creeping Sage Trichostema lanatum Woolly Blue Curls Zauschneria species .- California Fuchsia Low fuel volume introduced plants: Artemisia caucasica Silver Atriplex glauca Saltbush Atriplex semibaccata Creeping Saltbush Cistus crispus Roc3crose Cistus salviifolius Sageleaf Rockrese Santolina chamaecyparissus Lavender Cotton Santolina virens Green Santolina Zone 4, 30 to 100 feet - Selective thinning of native vegeta- tion. The process of ire safety begins with the selective removal of highly flammable plant species, large shrubby plants and dense groupings of plants to limit overall foliage mass and reduce fuel volume. The removal of natives should be managed: 1. To protect exposure of soils that would result in erosion problems. 2. To result in a natural appearance. 3. To keep down returning plant growth. (5) 08/05/2013 22:17 31OE43 JENKINS & HOGIN L RECEIVED O8/0E/2O13 10:17 31©3777288 ROLLING HIILS CITY PAGE 08/18 Natives are necessary here far soil stability and because they don't require much water. Existing live oaks and shrubs are thinned. Thin all native vegetation selectively every three to five years. High fire hazard species: Adenostcma f asciculatum Chamise Adenostoma sparsifolium _ Red Shanks Artemisia californica California Sagebrush 'Eriagonum fasciculatum Common Buckwheat Salvia species sage *Valuable watershed species: Aretastphylos species Manzanita Ceanothus species Wild Lilac Ccmarostaphylis diversifolia Summer Holly Garrya species Silk Tassel Heterome.les arbutifolia Toyon Juglans species Walnut Rhamnus species Buckthorn Rhus species Sumac Quests species oax *These plants provide good slope and soil stabilization, wild- life habitat and are not as flammable as the high fire hazard species. However, all of these plants should be thinned to reduce their foliage mass and be retained in limited numbers to prevent high intensity fires. C. SCREENING 1, Landscaping may be required to screen storage areas, trash enclosures, parking areas, public utilities and other simi- lar land uses or elements which do not contribute to the enhancement of the surrounding areas. 2. Landscaping screening shall be of suitable width, height and density so that it provides the desired effect within three years growing time. D. PARKING _ ABEAS 1. Perimeter landscaping adjacent to the property lines is required in parking areas. Berms to shield cars in parking lots from the street are required whenever possible. On corner lets, the landscape shall feature some element as a focal paint, i.e., a specimen tree, piece of art or street furniture, etc. The element featured shall have a site with an area of at least 500 square feet - (6) RECEIVED 08/06/2013 10:17 3103777288 ROLLING HIILS CITY 08/05/2013 22:17 31064 JENKINS & HOGIN PAGE 09/18 2. Exposed parking areas should devote a minimum of ten per- cent of their area to interior landscaping. Interior park- ing lot landscaping shall be computed on the basis of the net parking facility, which includes parking stalls, access drives, aisles, walkways, dead spaces and requured separa- tions from structures, but shall not include required land- scaping of the perimeter of the property. 3. Trees should be planted in parking areas to provide shade, diversity and seasonal color, etc. (see list of selected trees, Attachment 2). 4. Interior landscaping shall be contained ii planting beds or pockets with a raised concrete curb. Planter area curbs may be used in place of wheel stops. II. STANDARD CONDITIONS OF APPl: oVAL FOR SITE AND LANDSCAPE PLANS NOTE: The following conditions are typically attached, either in whole or in part, to all landscaping application approved by the City. If any of these conditions are not acceptable, the applicant may discuss them with the staff or the planning Commission at the time of the meeting. 1. The approval is granted only for the property described in the application and only for the approved landscaping as shown on the plans submitted. • 2. The landscaping and irrigation system shall be located., installed and maintained as specified on the approved plans. All dead and/or missing plants must be replaced on a continuing basis,. 3. Should the City require any changes to the 1Rn+imcape plans submitted, the applicant shall submit for staff review one (1) complete set of revised plans showing in detail all of the revisions and changes required. 4. No final inspection or occupancy clearance will be granted until all landscaping is installed in accordance with the plans approved and the conditions required by the City. 5. All plant materials and the landscape and irrigation design shall be represented accurately an the plans and any snb- stantial deviation. will require the express approval of the proposed revisions by the City.. Any substantial change shall require the resubmittal of revised plans to the City for consideration. Any minor changes to the approved plans may be approved by the Planning Director or authorized representative. (7) L VED Uri/06/2013 1U:11 3103(17286 ROLLING HIILS CITY 08/05/2013 22:17 310643 JENKINS & HOGIN 1411 PAGE 18/18 6. 711 landscaping adjacent to parking and vehicular circula- tion areas shall be contained in planters and/or enclosed by a raised concrete curb. All planters adjacent to the street right-of-way shall be constructed per specifications of the Public Works Director/City Engineer. 7. The la.rlscape architect shall certify the plans have been implemented according to the approved plan. S. This approval is subject to the applicants paying all fees and assessments to the City as requited by the E'ee Schedule Resolution. 9. All approvals of the City are subject to and dependent upon the applicant complying with• all applicable ordinances, codes, regulations, adapted policies, these conditions and the payment of all applicable fees and assessments. 10. At the sole discretion of the City, the failure to comply with any condition hereof may result.in the amendment or revocation of any underlying permit, or the issuance of a citation, as may be appropriate in the case. 11. Should the applicant fail to comply with any condition hereof, the City may, in its sole discretion, undertake such acts and incur such expenses as it may consider neces- sary to effect compliance, the cost thereof to be reim- burled by the applicant or current property owners, as may be appropriate in the case. III. APPLICATION REQUIREMENTS FOR. SITE AND LANDSCAPE PLANS Applications for Planning Commissioi approval of landscape plans shall be accompanied. by the following three (3) items. Each item must be folded to fit into a 9" x 14" envelope. Four (4) copies of each item is required for preliminary review. Eleven (11) copies of each item is required for Planning Commission review. A. A LANDSCAPE PLAN dimensionet and drawn to scale and including the following: 1. Name and address of the project by street number, street name and zip code or by Assessor's parcel number and lot number if no address has been assigned. 2. A vicinity map which locates the project in relation to streets and adjacent buildings and gives a general indica- tion of existing landscaping on adjacent property and on site. 3. A North arrow and a bar graph indicating the scale. .Accept- able drawing scales are: 1.14" = 1', 1/8" = 1', 1" = 10'r 1" = 20', 1„ - 30' and l" = 40'. (8) RECEIVED 08/06/2013 10:17 3103777288 08/05/2013 22:17 310643 JENKINS & HOGIN ROLLING HIILS CITY PAGE 11/18 3, ,A SOILS REPORT analyzing the texture, gypsum / lime / nitrogen / phosphorous / potassium / salinity content and pH in the areas proposed for landscaping may be required. The necessity for a soils report will be determined by staff subject to approval of the Planning commission for those projects that the Planning commission reviews. Generally, projects requiring a soils re- port will be those in newly developing areas and/or those projects of a scale that could visually affect the surrounding area. C. Upon approval by the City of a landscape plan, teo (2) copies of AN IRRIGATION PLAN must be submitted to the staff to insure that an adequate irrigation system is provided. Final approval of a landscape plan will depend an the adequacy of this submittal and its subsequent approval. 1. The following technical design guidelines should be consid- ered when preparing an irrigation plan: a. water meter and line sizes for the property should be calculated from total water demand which should be at least the sum of the maximum irrigation demand and all building demand. b. Flex -risers or other means of protecting exposed irri- gation heads and ].ateral..lines from damage shall be used where vandalism is probable. c. when► appropriate, underground irrigation piping shall be buried deep enough to protect lines from damage. d. The system should be designed with separate control valves and/or sprinkler heads as appropriate for trees, shrubs and turf with varying irrigation require- meats. e. The distance between sprinklers should not exceed 70% (seventy percent) of the nozzle diameter requirements. f. The irrigation system shall be designed so that streets, sidewalks, windows, walls and fences are not sprinkled. 2. A complete irrigation plan will generally include the fol- lowing information: a. The paint of connection. b. The design pressure. c. Indication of the pounds per square inch (PSI) and gallons per minute (GPM) of supply lines. d. Pipe specification: Type of pipe, size, class and/or schedule. e. Piping plans in relation to the landscaping plan. f. Type, model number and location of sprinkler heads anei valves. (9) RECEIVED 08/06/2013 10:17 3103777288 ROLLING HIILS CITY 08/05/2013 22:17 31064 JENKINS & HOGIN PAGE 12/18 g. Hose bibbs. h. Location of backflow devices. i. Name, address and telephone number of the professional, person who prepared the irrigation plans and date of preparation. Include state license number if prepared, by registered landscape architect or if prepared by a licensed individual,. Attachment "3" is an example irrigation plan. IV. SUBMITTAL EEpUIRE ENTS The project's landscape design plans shall be prepared by a Califor- nia registered landscape architect, unless waived by the Planning Director or designee. In order to allow evaluation of the project's landscape plans in a comprehensive and complete manner, submittals shall include the following; 1. Plan Check Fee: The applicant shall pay the required fees to cover landscape review and inspection. 2. Planting Plan: The planting design shall be drawn on clear and legible base sheets prepared especially for the land- scape submittal. Three (3) copies shall be submitted at the time of filing. The following requirements and informa- tion shall be provided: a. Size: Plans shall not exceed 30" x 42" or be less than 22" x 36" in size. b. Scale: The scale shall not be smaller than 1" = 20', unless prior approval has been granted by the .Planning Director or designee. Exceptions for smaller scale shall be only for those plans that are for large areas not requiring detail.. In no case shall the scale be less than 1" = 4:0'. c. Title Block: Indicate can all plans the names, address- es and phone numbers of the applicant and 1 nAwcape architect. Also the Community Development Project identification number shall be indicated (i.e. CDP No. 89-01). d. Physical Characteristics: The landscape plans should accurately and clearly portray the following existing (to be retained) and proposed features: - Landscape materials, trees, shams, groundcover, etc. - Property lines. - Streets, street right-of-ways, access easements and/or public or private driveways, walkways, bike paths and any other paved. areas. - Buildings and structures. - Parking areas, lighting, striping and wheel stops. (10) RECEIVED 08/06/2013 10:17 3103777288 ROLLING HIILS CITY 08/05/2013 22:17 310643 JENKINS & HOGIN L PAGE 13/18 Grading areas, top and toe of slopes, slope direction. Utilities, street1ighting, fire hydrants (if available), Natural features, water courses, rack outcropping, etc. Landscape designs may include design elements such as boul- ders, mounds, signs, sculpture, etc. All design elements shall be designated as to the size (at maturity in the case of plant materials) and be in scale with the proposed project. • Planting symbols shall be clearly drawn and plants labeled or abbreviated (3 letter minimum) on each sheet by botanic name. Numeric or graphic definition alone is not accept- able. Container size and/or spaci.Xg and quantities shall be clearly indicated for each group of plants. Sizes of plants at planting time should be adequate to meet specific conditions of project approval. See Attachment "4" as an example of a landscape design (planting) plan. . 3. Irrigation Plan: The irrigation design shall provide ade- quate coverage and sufficient water for the continued healthy growth of all proposed plantings with a minimum of waste or overspray on adjoining areas. Irrigation plans shall be drawn in a legible manner, sepa- rate from, but utilizing the same format as the landscape design plan. Plans shall be concise and accurate, includ- ing, but not limited to: a. Design pressure as well as static pressure (contact Santa Paula Water Wks., Ltd). b. Point of connection (location and size). C. Backflow protection, as approved by Ventura County Environmental Health. d. Valves, piping, controllers, heads, quick couplers, etc. Show gallonage requirements for each valve on the plan. The legend shall include equipment manufacturer, type of equipment, model number, gallons per minute (GPM) demand, pounds per square inch (PSI) demand, radius/diameter of coverage, remarks or special notes and a reference to the corresponding detail number. All equipment shall be de- signed for installation per manufacturer's recommendation, Uniform Plumbing Codes and all local regulations. RECEIVED 08/06/2013 10:17 3103777288 ROLLING HIILS CITY 08/05/2013 22:17 31064 JENKINS & HOGIN PAGE 14/18 4. Written Specifications/Apnlicabie Details: Three (3) copies of the details and specifications shall be provided. These shall include, at the minimum, specifica- tions and details necessary for planting, soil preparation, tree staking and guying, separation of different types of planting areas, installation details and post installation maintenance programs, etc. (see Attachment "5"). S. Site Plans One copy of the approved development permit site plan for the proposed project shall be provided in order for the landscape consultant to have a clear and accurate portrayal of the project and project site, 6. Architectural Elevations: One copy of the proposed pro - j ect' s elevations shall be submitted in order to review compatibility of proposed plant materials with architectur- al design elements. 7. Sradin_a- Plan: One copy of the approved grading plan shall )e provided in order to review height of graded slopes, pad elevations and finished grade in relation to the plantings and irrigation planned. 8. Conditions of Approval: One copy of the approved project conditions, initialled by the applicant's landscape archi- tect, shall be submitted, with the landscape plans so that the applicant's landscape architect is ensured of having seen the conditions and so that the landscape consultant can review the proposed landscape plans for consistency with the specific conditions.. v, LANDSCAPE STANDARDS Proposed plant materials should relate to architectural design ele- ments of the structures on the site and should be compatible with the character of adjacent landscaping, provided the quality of the adja- cent -landscaping meets the standards of this guide. The following 1andstape standards for permanent landscaping are minimums When special circnmStances or exceptional characteristics are applicable to the property involved (size, shape, topography, etc.), the Plan- ning Director may modify (reduce or increase) the standard(s) except as otherwise limited by the Zening Ordinance Code. 1. Minimum Site Coverage: Landscape percentages shall. be computed an the basis of the net project site area which includes the area of all structures, drives, walks and parking on the site but not areas dedicated for public right-of-way. The required percentages of landscaping relative to site area are as follows: (12) r) mine RECEIVED 08/06/2013 10:17 3103777288 ROLLING HIILS CITY 08/05/2013 22:17 31064? JENKINS & HOGIN L PAGE 15/18 a. Industrial 15% b. commercial 20% c. Institutional 20% d. Office 20% c. Residential ....(as specified in the permit) f. Multi -family residential plus areas of buffers and streetscape zones Minimum coverage requirements for commercial lots of less than 5,000 square feet may be modified by the Planning Director, depending on architectural design, 2. Minimum Planter width: Landscaped areas shall be a minimum of five (5) feet wide (including curbs). Narrower land- scape areas may be permitted but shall not be counted to- ward meeting the minimum coverage requirements of No. 1 above and No. 4a. below. 3. Perimeter Planting: The area within required setbacks of commercial, or industrial projects not used for other purpos- es shall be landscaped. 4. Parking Areas. All open (uncovered) automobile parking areas shall have landscaping in accordance with the follow- ing: a. Open Parking areas shall contain a minimum of ten percent (10%) of the area in landscaping, which is counted toward meeting the minimum site coverage re- quirements. Landscaping shall be computed on the basis of the net parking facilities, which includes parking stalls, access drives, aisles and walkways, but shall not include required landscaping adjacent to streets. b. A landscaping strip shall be provided along propertY lines adjacent to any public or private street right- of-way. These planting strips shall not be less than five (5) feet wide for commercial lots and not less than ten (10) feet wide for industrial. lots. Land- scape strips adjacent to major thoroughfares may bSe required to be greater. c. All parking lot planting areas shall be entirely en- closed within a reinforced brick or masonry planter box or portland cement concrete curb not less than six (6) inches high. d. Landscaping shall permit adequate site -distance for motorists and pedestrians and shall not interfere it the effectiveness of signage or parking lotlighting. e. Trees should be planted in parking areas to provide shade, diversity and seasonal color. (13) • RECEIVED 08/06/2013 10:17 3103777288 ROLLING HIILS CITY 08/05/2013 22:17 31064 JENKINS & HOGIN 1111 PAGE 16/18 g. f. A minimum of one tree shall be installed within a tree well or planter area of the parking lot for every ten (10) single' -row parking stalls or every twenty (20) double -row parking stalls. Tree wells shall be a minimum of sixteen (16) square feet (including curbs). Concrete wheel stops shall be provided for all parking spaces. The concrete curb around landscape areas may be utilized as a wheel stop provided the area of car overhang (2 1/2 foot ,maximum) does not damage or inter- fere with plant growth or irrigation systems. If this alternative is utilized, minimum planter widths (in- cluding curb) shall be as follows (see Attachment 6). (1) Not less than 5 1/2 feet for single -vehicle over- hand. (2) Not less than 8 feet for double -vehicle overhang. 5. screening: Landscaping should be used to screen storage areas, trash enclosures, parking areas, public utilities and other similar land uses or elements which do not con- tribute to the enhancement of the surrounding areas. Land- scape screening shall be planted at a height and density so that it provides the desired effect within three (3) years growing time. Long expanses of walls should be interrupted by inserts for plants. 6. Street Trees: Street trees may be required as a conditions of the development permit. No street tree will be approved for planting where its growth will cause interference, obstruction, damage or injury (either directly or indirect- ly) to use of a sidewalk or street right-of-way (see Attach- ment "7" for list of suggested street trees). Street trees shall be planted according tip the following standards and as delineated per Attachments "7A" and "8": a. Trees shall not be planted within thirty (30) feet of the curb return of a street intersection. b. Trees shall not be planted closer than four (4) feet from any walkway or public sidewalk, except where tree wells or parkways are provided in the sidewalk area (see Attachments "8-B" and "8-C"). Where trees are planted closer than six (6) feet from any public side- walk, Type "D" tree well details shall be Used. (see Attachment "8-D"). (14) RECEIVED 08/06/2013 10:17 3103777288 ROLLING HIILS CITY 08/05/2013 22:17 31061 JENKINS & HOGINIIII PAGE 17/18 c. Trees shall not be located closer than ten (10) feet from any driveway, utility pole, fire plug or to the rear of any street or directional sign; fifteen (15) feet from light standards and twenty-five ( 25) feet from the front of any traffic or directional sign. d. Trees shall be spaced an average of forty (40) feet apart but not less than one per lot and two pet corner lots. 7. Use of plant Materials: The scope of a project will ulti- mately determine landscape plant selection. A listing of native and exotic plant materials is outlined on Attachment "1". In order for landscaping to relate to architectural design, the following criteria is suggested: a. Evergreen trees are encouraged agairmt buildings to soften the appearance of blank expanses of walls, visually screen neighboring projects and subdivided exterior spaces. b. Deciduous trees are effectively used for solar control in summer and winter. Some trees are flowering and are desirable as accents. c. Trees that typically grow taller than twenty (20) feet in height and do not lend to top trimming will not be permitted under utility wires. d. Large shrubs are used to screen undesirable views and act as an intermediate height element to bring build- ings into human scale. e. Medium/low shrubs are ornamental and provide foliage, . texture and color to landscape themes (see Attachment If 9,T) . f. Vines and espaliers are effective screens for visually softening walls and fences. Many vines are available that grow in narrow planters and can provide excellent flower color to brighten buildings and walls (see Attachment "10"). g. Applicable native plant materials and drought tolerant species are encouraged for water conservation (see Attachment "1"). 8. Groundcover: The use of perennial groundcover is an accept- able landscaping method in reducing maintenance costa and controlling erosion. Irrigated and non -irrigated grcundoovers are discussed below: (15) RECEIVED 08/05/2013 10:17 3103777288 ROLLING HIILS CITY 08/05/2013 22:17 31051 JENKINS & HOGIN• PAGE 18/18 a. Irricxated: Irrigated groundcovers may be planted from rooted cuttings or applied as hydromu1ch. Rooted cuttings and hydromulched groundcovers may be selected from Attachment "11". other rooted cuttings and seed mixtures may be considered if submitted by a Califor- nia registered landscape architect. b. Non. -irrigated: In certain situations, temporary plant- ings may be required where irrigation is not economi- cally feasible nor desirable. Non -irrigated hydromulch seeds as indicated on Attachment "12" are acceptable for natural or undisturbed slopes. Hydromuloh seeds should be applied following the first measurable rainfall in the VALL of the year or a tempo- rary irrigation method shall be provided to ensure germination and minimum growth. If the natural rain- fall fails to provide adequate moisture for germina- tion, supplemental irrigation may be required. (16) From: Mike Jenkins <MJenkins@localgovlaw.com> Date: Thursday, August 1, 2013.5:53 PM To: Corey Schaffer <cschaffer@weho.org>, "Stephanie DeWolfe (SDeWolfe@weho.org)" <SDeWolfe@weho.org>, John Keho <JKeho(Wweho.org>,-Elaine Doerfling <edoerfling@hermosabch.org>, "Linda Abbott (labbott@hermosabch.org)" <labbott@ hermosabch.org>, Ken Robertson <krobertson@hermosabch.org>, Pamela Townsend <ptownsend@hermosabch.org>, Yolanta Schwartz <ys@cityofrh.net>, "dstrickfaden@hermosabch.org" <dstrickfaden& hermosabch.org>, Kenn Fujioka <kfuiioka@sgvmosquito.org>, "_1 Saviskas, Robert" <rsaviskas@lawestvector.org>, Jacki Bacharach <iackibach@cox.net>, Mary Silverstein <mary@hcbf.org>, Colleen Pelliccia <cpelliccia@laup.net>, William Sperling <WSperling@laup.net> Subject: Agenda descriptions: New court of appeal. decision The Ralph M. Brown Act (Gov.Code <http://web2.westlaw.com/find/default.wl?mt=7&db=1000211&docname=CAGTS54950&rp=%2ffind%2fdefault. wl&findtype=L&ordoc=2030651202&tc=-1&vr=2.0&fn= top&sv=Split&tf=-1&pbc=4C773B0B&rs=WLW13.04> § 54950 et seq. <http://web2.westlaw.com/find/defa ult.wl?mt=7&db=1000211&docname=CAGTS54950&rp=%2ffind%2fdefault. wl&findtype=L&ordoc=2030651202&tc=-1&vr=2.0&fn= top&sv=Split&tf=-1&pbc=4C773BOB&rs=WLW13.04> ) requires, among other things, that the legislative body of a local agency shall post, at least 72 hours before a regular meeting, "an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting...." (§ 54954.2, subd. (a)(1).) The same section of the Brown Act adds that "[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda...." (§ 54954.2, subd. (a)(2):) In the recently decided case entitled San Joaquin Raptor Rescue Center v. County of Merced, 216 Cal. App. 4th 1167 (2013) the court of appeals holds that the agenda description for a land use agenda item that involves a CEQA determination must, in order to comply with the Brown Act, identify all of the actions to be taken by the legislative body, including the CEQA determination. The case involved a planning commission agenda item for approval ofa subdivision. The county had prepared and was proposing adoption of a mitigated negative declaration in connection with the project. The face of the agenda identified the subdivision project but made no mention of the mitigated negative declaration. The court held that the agenda description was insufficient under the Brown Act: "Applying the agenda requirement of the Brown Act tothe undisputed facts of this case, we have no difficulty concluding that the Commission violated that requirement. The Brown Act clearly and unambiguously states that an agenda shall describe "each item of business tobe transacted or discussed" at the meeting. (§ 54954.2, subd. (a)(1), italics added.) Here, the Commission failed to disclose in its agenda that it would be considering the adoption of the MND at its October 14, 2009, meeting. The adoption of the MND was plainly a distinct item of business, and not a mere component of project approval, since it (1) involved a separate action or determination by the Commission and (2) concerned discrete, significant issues of CEQA compliance and the project's environmental impact. As an individual item of business, it had to be expressly disclosed on the agenda; it was not sufficient for the agenda to merely reference the project in general. Because the Commission discussed and adopted the MND at its October 14,2009, meeting even though that matter was not set forth on the meeting agenda, it violated the Brown Act. (§ 54954.2, subd. (a)(1) & (2).) We are further persuaded of the correctness of this conclusion by the fact that a public agency's decision whether to adopt or certify a CEQA document (such as a negative declaration, MND or an EIR) is always a matter of at least potential public interest since it would concern the local environmental effects of a proposed project. Such issues often motivate members of the public to participate in the process and have their voices heard. Of course, that is exactly what the Brown Act seeks to facilitate. Its purposes include ensuring that the public is adequately notified of what will be addressed at a meeting in order to facilitate public participation and avoid secret legislation or decisionmaking. (§ 54950 <http://web2.westlaw.com/find/default.wl?mt=7&db=1000211&docname=CAGTS54950&rp=%2ffind%2fdefault. wl&findtype=L&ordoc=2030651202&tc=-1&vr=2:0&fn= top&sv=Split&tf=-1&pbc=4C773B0B&rs=WLW13.04> ; Los Angeles Times Communications v. Los Angeles County Bd. of Supervisors, supra, 112 Cal.App.4th at pp. 1321 1322, 5 Ca1.Rptr.3d 776 <http://web2.westlaw.com/find/default.wl?mt=7&db=0007047&tc=- 1&rp=%2ffind%2fdefault.wl&findtvpe=Y&ordoc=2030651202&serialnum=2003734994&vr=2.0&fn= top&sv=Split &tf=-1&pbc=4C773B0B&rs=WLW13:04> .) Those purposes would be impaired if a public agency could refuse to disclose in its meeting agenda that it will be considering approval of a CEQA document.. Such an approach would allow a potentially controversial issue to be quietly proposed and decided without having to open the discussion to meaningful public input. That is one of the evils the Brown Act was designed to prevent. (§ 54950 <http://web2.westlaw.com/find/default.wl?mt=7&db=1000211&docname=CAGTS54950&rp=%2ffind%2fdefault. wl&findtype=L&ordoc=2030651202&tc=-1&vr=2.0&fn= top&sv=Split&tf=-1&pbc=4C773B0B&rs=WLW13.04> ; see Epstein, supra, 87 Cal.App.4th at p. 869, 104 Cal.Rptr.2c1857 <http://web2.westlaw.com/find/defau lt.wl?mt=7&db=0003484&tc=- 1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2030651202&serialnum=2001195205&vr=2:0&fn= top&sv=Split &tf=-1&pbc=4C773B0B&rs=WLW13.04> [the Brown Act is construed liberally to accomplish its remedial purposes].)„ This holding means that the description in the agenda itself (not just the staff report) must indicate the CEQA determination being presented to the legislative body along with the substantive action i.e. that the project is exempt from CEQA, or that a negative declaration or EIR, etc. is proposed for adoption. We can further extrapolate from the case that the agenda description for every agenda item, not. just land use items, must set forth each separate action or decision being considered by the body as part of the item. Where an item of business involves discrete actions, each one should be listed on the agenda. Please keep this in mind as you prepare agenda descriptions and alert all of your staff involved in preparing agenda descriptions to adhere to these requirements so as to avoid Brown Act disputes. Let me know if you have any questions. Mike Michael Jenkins JENKINS & HOGIN, LLP Manhattan Towers 1230 Rosecrans Avenue, Suite 110 Manhattan Beach, CA 90266 Tel: 310.643.8448 Fax: 310.643.8441 Mlenkins@LocalGovLaw.com <mailto:Mlenkins@LocalGovLaw.com>.. www.LocalGovLaw.com <http://www.LocalGovLaw.com> This is a transmission from the Law Firm of Jenkins & Hogin, LLP: The Information contained in this email is confidential and may be protected by the attorney -client and/or attorney work product privileges. This information is intended solely for the use of the individual or entity to whom it is addressed. • Friday, October 5, 2012 10:17 AM Subject: FW: Follow-up To Commissioners re Question on Campaigning Date: Friday, October 5, 2012 10:17 AM From: Anton Dahlerbruch <adahlerbruch@cityofrh.net> The following is for Planning Commissioner's, so everyone has the same information. Tony Forwarded Message From: Elizabeth Calciano <ecalciano@localgovlaw.com> Date: Fri, 5 Oct 2012 17:03:19 +0000 To: Anton Dahlerbruch <adahlerbruch@cityofrh.net> Cc: Michael Jenkins <mjenkins@localgovlaw.com> Subject: Follow-up To. Commissioners re Question on Campaigning Tony: Could you please forward on this advice to Chairman Pieper and Commissioner Henke which follows up on questions that they asked me last night. I am not sure I have their current email addresses. Thanks, Beth Chairman Pieper and Commissioner Henke: Question: You had asked whether you may actively campaign against Colyear's initiative. Response: There are no constraints on expressing your personal views in any forum on initiatives. Therefore, campaigning against the initiative is not a problem. Question: You had also asked whether it would be a problem under the Brown Act if more than two Commissioners meeting to plan met to coordinate efforts against the Initiative. Response: It is not a Brown Act violation if three commissioners are part of a group organizing against the measure and attending meetings together to strategize against the measure, so long as they do not discuss Commission issues. There is a clear delineation between strategizing against the measure and discussing how to amend the current view ordinance or discussing a pending view case. You need to be careful to strictly avoid discussing the substance of the view ordinance or pending view cases while you are strategizing on the initiative. As a matter of appearance, it would be preferable that three of more of you not meet alone because that may encourage some to speculate and allege that you are violating the Brown Act. In Page 1 of 2 • • other words, while it is legal to meet alone, we recommend that you attempt to include others in your meetings. This will avoid that perception and will also ensure that there are witnesses who could verify that Commission business was not discussed and that you stuck to the subject at hand. Also, just as a reminder, as Mike Jenkins previously advised in his July 20 memorandum, individual City officers have no authority to speak on behalf of the City unless expressly authorized to do so. Hence, to the extent you wish to speak about any of these matters, you should always be clear that you are expressing a personal opinion, not a City position. The City Council will typically authorize the Mayor, the City Manager or the City Attorney to express the official position of the City on any matter. If you have any further questions, please feel free to call me at 626-437-3865. Elizabeth M. Calciano Jenkins & Hogin, LLP Manhattan Towers 1230 Rosecrans Avenue, Suite 110 Manhattan Beach, CA 90266 Tel: (310) 643-8448 - ext. 128 Fax: (310) 643-8441 ECalciano@LocalGovLaw.com Check out our new website: www.LocalGovLaw.com <http://www.LocalGovLaw.com> This is a transmission from the Law Firm of Jenkins & Hogin, LLP. The information contained in this email is confidential and may be protected by the attorney -client and/or attorney work product privileges. This information is intended solely for the use of the individual or entity to which it is addressed. If you believe that this message has been sent to you in error, please (1) do not read it, (ii) reply to the sender that you have received the message in error, and (iii) erase or destroy the message. To the extent that this email message contains legal advice it is solely for the benefit of the client(s) of Jenkins & Hogin, LLP represented by the Firm in the particular matter that is the subject of this message and may. not be relied upon by any other party. Page 2 of 2 • • CRP JENKINS & HOGIN, LLP A LAW PARTNERSHIP DAL TO: CC: FROM: DATE: MEMORANDUM HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL ANTON DAHLERBRUCH, CITY MANAGER MICHAEL JENKINS, CITY ATTORNEY LAUREN FELDMAN, ASSISTANT CITY ATTORNEY NOVEMBER 9, 2009 RE: ALTERNATIVES FOR COMPLIANCE WITH THE MACHADO LAKE TMDL CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY - ACCESSIBLE RECORDS. Issue Does Rolling Hills have a more cost-effective alternative to achieve compliance with the Machado Lake Nutrient TMDL, or to eliminate this NPDES Permit requirement? Short Answer Yes, obtaining coverage under a the Phase II Small MS4 general permit can alleviate some of the City's existing permit obligations, including compliance with the strict numerical water quality standards in the TMDL; however, it is not necessarily an option that the federal regulations require the Regional Board to offer the City since it has already been designated as part of a large MS4, and achieving that result would require collaboration and negotiation with the Regional Water Quality Control Board. Introduction In September, staff presented the Council with three options for compliance with the Machado Lake Nutrient TMDL, all of which would require significant financial expenditures ranging from: (i) $410,000 for participation in a multi -city Lake Watershed Management Plan; (ii) $40,000 initial and $40,000 annually for demonstrating the City' s individual compliance through its own monitoring program; or (3) $175,000- $300,000 for demonstrating compliance through a special study work plan. The summary of these compliance options is attached to this report for your reference. The Machado Lake Nutrient TMDL, which became effective on March 11, 2009, is intended to correct the impairment of water quality in the lake. In this TMDL, the Regional Water Quality Control Board ("Regional Board") has identified the sources of pollutants in the lake and assigned allocations or limitations on those pollutants loads to bring the lake to the desired target concentration by September 11, 2018. This is the first NOVEMBER 9, 2009 PAGE 2 TMDL that creates a significant financial burden for the City, although Rolling Hills is also subject to a Trash TMDL in Machado Lake and a bacteria TMDL in the Santa Monica Bay. The TMDL(s) have strict numeric pollutant limits that must be achieved by one of these three compliance options by a date certain; as an MS4 permittee responsible for discharges to the lake, the City must demonstrate compliance by one of these three options. Once a TMDL is adopted, a responsible discharger is required to comply, and there are no exceptions under this NPDES permit. Failure to comply with the TMDL subjects the City to enforcement actions from the Regional Board or private citizen lawsuits, both of which couldresult in financial penalties of tens of thousands of dollars per day of violation. Due to the significant potential costs for compliance with that and other water quality regulations, the City Attorney's office, in conjunction with the City' s stormwater consultant Kathleen McGowen, has prepared the following memo summarizing available mechanisms to remove the City from the TMDL requirements. Because the TMDL is applied to the City through the City's MS4 permit, we must start with an explanation of the structure of the existing permit. Next, the memo will describe alternative mechanisms for removing the City from the MS4 permit requirements, and ultimately the TMDL. Lastly, the memo will analyze those options for your consideration. Summary of Existing NPDES Permit The Federal Clean Water Act ("CWA")1 provides for the regulation and reduction of pollutants discharged into the waters of the United States by extending National Pollutant Discharge Elimination System ("NPDES") requirements to storm water and urban runoff discharge from municipal storm drain systems. The CWA requires the EPA to establish a storm water control program in two phases. Phase I requirements were created in 1990 and Phase II (discussed later on) were released in 1999. Phase I regulates storm water discharges from mostly medium and lie Municipal Separate Storm Sewer Systems (MS4s) serving populations of 100,000 or more. The Los Angeles County permit is a system -wide Phase I permit covering most of the entities draining or contributing into the large MS4 throughout the County (of which the County owns or operates much of the stormdrain system's main lines) The City of Rolling Hills, along witheighty-three other cities, is a co-permittee under the Los Angeles County MS4 Permit, issued by the Regional Board in 2001. As a co - 1 33 U.S.C. Sections 1251, et seq. NOVEMBER 9, 2009 PAGE 3 permittee, the City is required to implement procedures to prevent non -storm water discharges from entering into the stormwater system. Co-Permitee Status Assessing alternatives to the Los Angeles County system -wide permit first requires an understanding of how the City first was designated as a co-permittee under the permit. The CWA regulations require the Regional. Board to issue an NPDES Permit for discharges from large and medium MS4s. When the first permit was issued, it was in the Regional Board's discretion whether to issue one system -wide permit covering all or a portion of all municipal storm sewers within adjacent or interconnected large or medium MS4 systems, or to issue different permits for categories of discharges within MS4s, e.g., all discharges owned or operated by the same municipality, or all discharges within a system that discharge to the same watershed.2 The federal regulations explicitly required that based on population and urbanization, the Board had to designate the City of Los Angeles and the unincorporated County of Los Angeles operators of large MS4s.3 The Regional Board determined that the other MS4 operators in the area were part of this large MS4 system and had the choice to become a co-permittee with other MS4 operators, or to submit a distinct permit application only covering discharges from the MS4 for which the operator is responsible (individual permit).4 Rolling Hills joined with the other 83 cities as co-permittees in the Los Angeles County system -wide permit. County's Principal Permitee Responsibilities Under the MS4 Permit, the Los Angeles County Flood Control District is designated the Principal Permittee, responsible for the lion's share of the tasks associated with the permit. Some of these responsibilities include implementing the six model programs in the Stormwater Quality Management Program (SQMP), including creating public information/education campaigns, development planning and construction responsibilities, elimination of illicit discharge/cormections, and engaging in public agency best practices/good housekeeping activities and industrial/commercial facilities control activities. The County also manages the electronic submittal of annual reports from all eighty-four co-permitees and compiles all of the information into a joint submittal. 2 40 CFR 122.26 (a)(3) 3 In designating which municipalities are part of the Los Angeles County MS4 based on the relationship of the discharges, the Board also considered the following factors: physical interconnections, relative location of discharges, quantity and nature of pollutants discharged, the nature of receiving waters, or because they are part of an overarching stormwater management regional authority (e.g., the Los Angeles County Flood Control District). 4 40 CFR 122.26 (a)(3)(iii). NOVEMBER 9, 2009 PAGE 4 The County is responsible, for most water quality monitoring throughout the six watersheds covered by the permit, and submits the annual storm water monitoring report with data, results, methods, graphical summaries and maps, long-term trends, comparison with Water Quality Standards, and analysis of findings to the Regional Board. The County also provides contract services to contract cities to help meet permit obligations, including Standard Urban Stormwater Management Plans ("SUSMP") review and site specific mitigation review fornew developments, assessing compliance with construction requirements, verifying coverage under statewide general construction permit, review of wet weather erosion control plans, inspection of construction sites, and training for construction inspectors. City's Co-Permitee Responsibilities In comparison, the co-permittees have a more limited role. Required activities under the Permit include preparation and submittal of an annual report detailing the City' s compliance, participation in mandatory coordination meetings with co-permittees, and responding to information requests by the Regional Board staff as needed. Rolling Hills is also required to implement the mandatory programs of the County SQMP5 as follows: 1. Public Information and Participation - The City conducts most outreach to residents via the City's newsletter and website, but also cooperates with the County and sister cities in joint outreach programs to the community, particularly those focused on TMDL pollutants of concern. 2. Development Planning - The City implements development planning requirements through updates to its General Plan and municipal code, and development planning review, including the County's contract services for plan checking and review of SUSMPs for hillside homes. 3. Development Construction - The City implements development construction programs by contracting out for construction inspections, including compliance with erosion control plans and compliance with the Statewide General Construction Permit. City staff is also involved in construction site inspections as needed. 5 Additional SQMP programs are Industrial/Commercial Facilities Control and Public Agency Activities; however, since there is no industrial or commercial zoning or use within the City and the City conducts few activities that are subject to the permit, these programs do not contribute significantly the permit obligations. • NOVEMBER 9, 2009 PAGE 5 4. Illicit Connections and Illicit Discharges Elimination — City staff respond to compliant reports of illicit discharges and also respond when a staff/inspector notices potential violation in the field; staff and inspector immediately visit the site. The owner and/or contractor are directed to immediately correct the violation. A re -inspection of the site is scheduled within two days. The City also provides annual reporting of illicit discharges to the County for its trend analysis. 5. TMDL Compliance - Compliance with Total Maximum Daily Load pollutant - specific, water body -specific limitations are being enforced by incorporation into the MS4 Permit. The City is currently implementing a Monitoring and Reporting Plan for the Machado Lake Trash TMDL, will be making its first required submittal under the Machado Lake Nutrient TMDL in March 2010, and has been participating in Jurisdictional Group 7 monitoring activities for the Santa Monica Bay Beaches Bacteria TMDL. Over the past five years, particularly since incorporation of the TMDLs, Rolling Hills has more than doubled its annual expenditure for permit activities and compliance, from just over $17,000 in 2005-2006 to over $59,000 in 2008-2009, excluding City Attorney expenditures and staff time. If the additional requirements adopted in Ventura County's new permit are indicative of what the new permit will require, those costs are only expected to increase dramatically. Additionally, the Regional Board issued a Notice of Violation to Rolling Hills (and 19 other cities subject to the Santa Monica Bay Bacteria TMDL) in March of 2008 and followed up with a supplemental notice last month. Although the City has presented compelling arguments to eliminate liability and has petitioned the State Water Resources Control Board to appeal the ultimate determination, the City is threatened with steep fines resulting from the alleged exceedances of water quality standards. The Los Angeles County system -wide Phase I MS4 permit expired in 2006; however the terms and conditions in an expired permit are automatically continued until such time as the Regional Board adopts a new permit.6 Additionally, the Regional Board is reopening the expired LA County MS4 Permit to insert adopted TMDLs. Staff expects that a draft LA County MS4 permit will be circulated for review before the end of FY2009-2010 and the new County -wide permit should be adopted by early 2011. 6 23 Cal. Code Regs. 2235.4, 40 CFR 122.6. NOVEMBER 9, 2009 PAGE 6 Prior to expiration of the existing permit in 2006, the County submitted its application for permit renewal, referred to as a Report of Waste Discharge,' on behalf of itself and the co-permitees. Since the Regional Board has not yet adopted a new permit, the timing is appropriate to assess the utility of being a co-permittee under the Los Angeles County' s "one size fits all" permit. Unlike other co-permittees, the City of Rolling Hills is a unique, low -density residential community where development consists of single-family residential homes on large lots; the only nonresidential development in the City consists of City administration buildings, a fire station, recreational facilities and a public school campus. All streets, roads and trails in the City are privately owned and maintained by the Rolling Hills Community Association. The City has no commercial or industrial uses and there is no land zoned for such purposes. All natural watercourses are also located on private property and the City's records indicate that all storm drains in the City are owned and maintained either by the Community Association, private property owners or the County of Los Angeles; however, some maps of catch basins call into question whether the City could have jurisdiction over portions of the drainage system.8 There are a significant number of equestrian properties in the City, and the vast majority of homes utilize onsite wastewater treatments systems rather than connect to a sewer. Both factors can produce bacteria and nutrient pollutants that can be. carried via stormwater to receiving waters. An additional complication exists in that active landslides in some areas of the City make it hazardous for the City to encourage storm retention on site if such retention will result in absorption of water in slide planes. The benefit to participating as a co-permittee is having the County of Los Angeles responsible for a majority of the monitoring and reporting programs described above. The cities can also share resources and work together to meet the permit obligations, though sometimes coordinating in the group setting can be difficult and, productivity can be delayed by differing opinions, politics and bureaucracy. On the other hand, Rolling Hills is grouped together with other participating agencies that are much different, having much larger land areas and more objectionable land uses that contribute to degradation of water quality more so than single family homes. And the existing framework requires the City to blame other agencies to alleviate its own ' The application procedure for a NPDES permit is governed by Title 40, Part 122 of the Code of Federal Regulations. 23 Cal. Code Regs. 2235.1. 8 Some catch basins within City boundaries are designated as city -owned on the County's stormdrain maps; however, City staff believes these maps are incorrect and they are either County -owned or privately owned. NOVEMBER 9, 2009 PAGE 7 responsibility for water quality exceedances. For example, under the Notices of Violation issued in March 2008, and again in October 2009, the City is required to identify and provide evidence of the pollutant source outside the City to alleviate its own liability. The system is flawed in that agencies are expected to coordinate with one another and at the same time, point blame for exceedances in the receiving waters. Is Rolling Hills required to have an NPDES Permit? Rolling Hills determined in 1996 that designation as a co-permittee would be advantageous; however, part of the analysis of any available alternatives naturally begins with the question of whether Rolling Hills is required to have an NPDES permit under state or federal law. The answer to that question is most likely yes. Under state law, an NPDES permit is required if a federal permit is required under the CWA.9 The CWA's coverage requirements are very broad: any person discharging pollutants from any point source to the navigable waters of the United States (i.e. to the ocean and Machado Lake) must obtain a NPDES Permit.1° In Rolling Hills, stormwater and urban runoff (i.e. the pollutants) flow via natural drainage channels, catch basins, culverts and small segments of County Flood Control District storm drain system into the interconnected MS4 operated by the County, Rolling Hills Estates and Rancho Palos Verdes. A point source is defined as any discernible, confined and discrete conveyance, including any pipe, ditch, channel, tunnel, conduit, well, from which pollutants are or may be discharged.11 In other words, the City need not own a typical storm drain system to fall under the purview of CWA; a series of conveyances from which polluted stormwater will travel and is ultimately conveyed into a body of water falls under this definition. The EPA has opined that stormwater running into a roadside ditch is a point source, as the ditch is considered a conveyance system covered by the CWA and point sources exist when the pollutants are discharged to a body of water, i.e. Machado Lake, coastal streams (including some blue -line streams in Rolling Hills) and the ocean through the conveyance.12 Hence, the drainage system throughout Rolling Hills conveys stormwater through a combination of natural drainage channels, storm drains and culverts and fall under the broad umbrella of the CWA. There is an argument that the City should not be subject to an MS4 NPDES Permit because it is not a municipal storm water operator as it does not own or operate any of 9 Ca1. Wat. Code, § 13376. 10 Ca1. Wat. Code Sec. 13376. 11 40 C.F.R. 122.2. 12 See USEPA Stormwater Program Questions and Answers, January 21, 2004, page 4. • • NOVEMBER 9, 2009 PAGE 8 the stormwater conveyances13. To staff's knowledge, the County owns most of the conveyances in the City and is the operator of those segments. The Community Association owns the roads and potentially some of the catch basins and could be considered an MS4 operator under the definition, but it is not a public body. Other stormwater conveyances may have been installed by private property owners and, if privately owned, would not technically be regulated as municipal storm sewers. But, these system of conveyances still fall under other Clean Water Act provisions and if the City argued to the Regional Board at it was totally exempt from the MS4 permit, the State could act under its own authority and require a permit for these point source discharge as Waste Discharge Requirements for individual properties (as it does for private septic systems). City staff would need to conduct a full investigation of the stormwater conveyances in the City to determine if arguing for exclusion from the MS4 permit requirement is a fruitful argument. Are there any alternatives for an MS4 permit in Rolling Hills? 1. Waiver of the NPDES Requirements State law provides that the Regional Board may waive the requirement to submit a Report of Waste Discharge (permit application) and receive MS4 permit coverage if the State or Regional Board determines, after any necessary board meeting, that the waiver is consistent with the Basin Plan for Coastal Watersheds in Los Angeles and Ventura Counties and is in the public interest. 14 The Los Angeles Basin Plan's stated goals are to preserve and enhance water quality by designating the beneficial uses for ground and surface water, state water quality objectives that promote the state's antidegradation policy and describe implementation programs to protect water quality. 13 40 CFR 122.26 (b) (8) Municipal separate storm sewer means a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains): (i) Owned or operated by a State, city, town, borough, county, parish, district, association, or other public body (created by or pursuant to State law) having jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, including special districts under State law such as a sewer district, flood control district or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 208 of the CWA that discharges to waters of the United States; (ii) Designed or used for collecting or conveying storm water; (iii) which is not a combined sewer and (iv) which is not part of a Publicly Owned Treatment Works (POTW) as defined at 40 CFR 122.2. 14 Cal. Water Code section 13260, 13269. NOVEMBER 9, 2009 PAGE 9 Despite the City's low density and vast amount of pervious open space, the Regional Board Executive Officer has determined that Rolling Hills has violated water quality standards and issued a Notice of Violation on March 4, 2008, supplemented last month with a second NOV. The enforcement proceedings are in the beginning stages and the City has not yet had the opportunity to challenge those findings in front of the State or Regional Boards. But at this time, the Executive Officer has already determined that the City is contributing to violations of water quality standards in the Santa Monica Bay. Stated differently, it highly unlikely that the Board would consider waiving the MS4 permit requirement for Rolling Hills while an NOV is pending. Further, the significant number of equestrian properties within the City and the use of onsite wastewater treatment systems raise reasonable water quality concerns that the Regional Board has a duty to manage through permit regulation. A meeting is scheduled to discuss the NOV with the Regional Board's staff, which will hopefully shed some light on any particular concerns with Rolling Hills; but at this time, it does not seem that waiver is a viable alternative. 2. Applying for an Individual Permit drafted specifically for the Rolling Hills Any permittee may petition for coverage under an individual permit, whereby the City would assume, among other things, responsibility for the city specific stormwater management and monitoring programs. Arguably, the City can apply for an individual permit until ninety days after the new LA County MS4 permit has been published.15 However, Signal Hill, Downey, and a group of five cities consisting of Azusa, Claremont, Glendora, Irwindale and Whittier petitioned for individual permits in 2006, before the existing permit expired. Even though these are applications for new, individual permits, the Regional Board processed the petitions as "reapplications." Reapplications must be submitted 180 days before the existing permit expires. If Rolling Hills is interested in exploring an individual permit, there is a risk that the Regional Board would reject the application as untimely and City should confer with the Regional Board's Executive Officer to verify if an application would be accepted at this time.16 15 40 C.F.R. 122.28(b)(3)(iii). 16 Application requirements can be found at 40 CFR 122.33, and 122.21(f) and 122.34(d). See 40 C.F.R. 122.34(b)(3) for map requirements under 122.21(f)(7). The Application must include a demonstration of adequate legal authority and stormwater ordinances, source identification (e.g. identifying major outfalls and drain inventory in the City), and an assessment/characterization of the discharges from the stromwater conveyance system. See 40 C.F.R. 122.26(d). The application must also include a description of the best management practices that the City will implement under its stormwater management program, the measurable goals of each BMP, an estimate of square miles served by your small MS4 and any additional information that RWQCB requests. Also, the City must submit a storm sewer map that meets the certain requirements. • • NOVEMBER 9, 2009 PAGE 10 The minimum requirements of an individual permit are to develop, implement and enforce a stormwater management program to reduce the discharge of pollutants from the MS4 to the maximum extent practicable. In reviewing the Regional Board's response to the 2006 individual permit applications, the Board seemed unwilling to eliminate any provisions of the existing stormwater management program and monitoring program; however, the response did indicate a willingness to work with the cities to develop appropriate permit requirements. Hence, the City's obligations under its existing stormwater management program17 would not change because those requirements are mandated by federal law.18 And the Regional Board could incorporate additional obligations for the City. As a result, being principal permittee under an individual permit will likely result in more, not less, work for the City. The City will also still be subject to any existing TMDLs under an individual permit because the TMDLs are customized water quality improvement plans for specific impaired bodies of water, not tied specifically to the LA County MS4 permit. The City is already subject to the Santa Monica Bay Beaches Bacteria TMDL for which it participates jointly with other peninsula cities and the Machado Lake Trash TMDL and Machado Lake Nutrient TMDL, discussed above. Under an individual permit, the City must demonstrate on its own that the TMDL allocations are being met by incorporating the TMDL into the stormwater management program. The TMDLs must also be implemented, documented and maintained by inspections, reports, and/or monitoring. If a permitee determines that the discharge is not in compliance with the TMDL, the permittee must improve controls on the discharge and re-evaluate.19 If the Council is interested in this option, staff can prepare a more detailed presentation of the application requirements, costs of preparation and proposed time schedule for application and compliance with new permit requirements or confer with the Regional Board on the utility of this option. 3. A Phase II Small MS4 General Permit The State Water Quality Control Board provides another alternative permit to meet the requirements of the CWA, called a Phase II Small MS4 General Permit. The Phase II " The activities include public education and outreach, public involvement, illicit discharge detection and elimination, construction site stormwater runoff control, and pollution/prevention and good housekeeping ? ractices. 8 See 40 C.F.R.122. 34(a). 19 See USEPA Storm water Program Questions and Answers, January 21, 2004, page 10. NOVEMBER 9, 2009 PAGE 11 permit is a general "one size fits all" statewide permit that is already drafted to regulate stormwater discharges from small MS4s. The permit currently covers over 250 entities in California. Like the LA County Permit, the Phase II permit expired in 2008, but continues in force and effect until a new General Permit is issued. The State Water Board staff is in the process of drafting the new permit, through a collaborative process involving key stakeholders and it is unclear whenthe new permit will be adopted. Although issued by the State Board, compliance with the permit is reviewed and enforced by the Regional Board. This permit regulates the discharges of stormwater from designated small MS4s. A small MS4 is an MS4 that is not permitted under large/medium MS4 Phase I regulations which is owned or operated by a city or other public body having jurisdiction over disposal of stormwater and other wastes, and interconnected with other MS4s.2° Since Rolling Hills has already been designated as part of a Large MS4, this alternative is a two-step process. First, the City could petition the Regional Board to designate Rolling Hilts' stormwater conveyance system as its own small MS4 because the system is interconnected within LA County' s permitted MS4 in that stormwater draining from Rolling Hills is allowed to flow directly to the MS4 from LA County, Rolling Hills Estates and Rancho Palos Verdes. A petition to change that designation would be a request of first impression for the Regional Board and entirely within the Board's discretion. In determining if Rolling Hills should be designated as a small MS4, the Regional Board would consider the characteristics of the conveyance system and the City. A more detailed hydrology analysis would be required before we could assess the strength of this petition. If the Regional Board agreed to consider a petition to designate Rolling Hills as a small MS4, the City would then be required, within 180 days designation (or a later date if authorized by the Board), to submit a Notice of Intent (i.e. application, including information on the City's BMPs and measurable goals), appropriate fee and complete stormwater management program.21 Rolling Hills would continue to be covered by the existing NPDES Permit during this process. The stormwater program must be approved by the Regional Board, or its Executive Officer (EO), prior to permit coverage commencing. The General Permit requires the 20 40 CFR 122.26(b)(16). 21 40 CFR 122.33. NOVEMBER 9, 2009 PAGE 12 program to be fully implemented by the end of the permit term (or five years after designation for those designated subsequent to General Permit adoption). When the Notice of Intent was deemed complete, the Board would begin a 60 -day public review period, during which time any member of the public may request that the Board conduct a public hearing before authorizing coverage. If no public hearing is requested within 60 days and Regional Board staff recommends approval of permit coverage, coverage commences automatically. The General Permit has three major requirements: (1) to prepare and implement a stormwater management program; (2) reduce discharge of pollutants to the maximum extent practicable; and (3) annually report on the progress of the program implementation. The first and third requirements are not very different from the program and annual reporting requirements for all other permits. The general permit effectively prohibits the discharge of materials other than stormwater that are not "authorized" non- stormwater discharges. The general permit also incorporates discharge prohibitions in the Ocean Plan and Basin Plan, including any applicable TMDL, such as the Nutrient, Bacteria and Trash TMDLs; however, the inclusion of Best Management Practices ("BMPs") in lieu of these numeric effluent limits is allowed in stormwater permits. 22 The permit requires permittees to implement BMPs that reduce pollutants in stormwater runoff to the Maximum Extent Practicable. The most significant benefit under the Small MS4 permit, however, is that for small cities with populations under 50,000, the permit does not require strict compliance with water quality standards, but instead requires compliance with water quality standards over time, through an iterative approach requiring improved BMPs. This means that the City must keep implementing additional BMPs until pollutants are reduced to the maximum extent practicable. It is recognized that "pollutant reductions that represent MEP may be different for each small MS4, given the unique local hydrologic and geologic concerns that may exist and the differing possible pollutant control strategies. Therefore, each permittee will determine appropriate BMPs to satisfy each of the six minimum control measures in the stormwater program through an evaluative process.i23 In choosing BMPs, the City would focus on technical feasibility, but cost, effectiveness, and public acceptance are also relevant. The State Board has determined that if the City chooses only the most inexpensive BMPs, it is likely that MEP will not be met. If the City employs all acceptable BMPs except those that are technically infeasible in that locality, or whose 22 40 C.F.R. 122.44(k)(2) 23 Federal Register, Volume 64, No. 235, page 68754, December 8, 1999. NOVEMBER 9, 2009 PAGE 13 costs exceeds any benefit to be derived, it would meet the MEP standard. Whereas under the current LA County MS4 Permit, when TMDLs with strict numerical targets are inserted, they must be met by a deadline certain and MEP is no longer the compliance standard. Three additional BMPs that the City could suggest as part of an application for coverage under the small MS4 general permit are manure/stable control ordinance, septic inspection programs, and inspections for greywater. Given the propensity for landslides in the area, retention of stormwater would likely prove infeasible. Under this permit, monitoring is not necessarily required —although the Board can require the City to implement a monitoring program. The general permit also favors inspections as a form of visual monitoring; however, the RWQCB can require additional monitoring under the permit. If the Council is interested in this option, staff can prepare a more detailed presentation of the application requirements, costs of preparation and proposed time schedule for application and compliance with new permit requirements; however, before committing considerable time and resources to preparation of an individual permit application, the City is advised to meet with the Regional Board's Executive Officer to verify whether she would consider a petition to designate Rolling Hills as a small MS4. Conclusion The alternatives presented above are not traditional courses of action for the Regional Board to consider; however, they represent the only mechanisms available to address Rolling Hills' stormwater compliance concerns. Waiver of the MS4 permit requirements is not a viable option at this juncture given the Board's recent enforcement action. Also, applying for an individual permit would increase the City' s responsibilities and costs and not relieve the City of its obligations under the Machado Lake Nutrient TMDL. Although the Small MS4 general permit appears to be the most advantageous permitting mechanism for the City of Rolling Hills because it is the only one that does not require strict compliance with TMDL numerical limits but allows for an iterative adaptive approach, it is not necessarily an option that the federal regulations require the Regional Board to offer the City once it has already been designated as part of a large MS4. In order for the Regional Board to consider making such a special exception for the City, we believe that the City would need to make a compelling two -fold argument: 1) list the NOVEMBER 9, 2009 PAGE 14 specific reasons that the City is unique and that other cities could not also make the same argument; and 2) the City would need to offer significant water quality implementation measures on a timely schedule of implementation that would be sufficiently attractive. The risk of making this offer is that once the City proposes additional BMPS that it is willing to undertake, the Regional Board could reject the offer and require those same actions in the implementation plan for the Nutrient TMDL.. Under the Machado Lake Special Study/Option 3 scenario this implementation plan must be submitted to the Regional Board by September 2011. So in negotiating coverage under the Small MS4 Permit, we would need to show that we could expedite implementation by eliminating the special study phase and develop and implement measures under a compressed schedule to make this approach attractive. Balanced against the risks associated with pursuit of a Small MS4 permit are the unknown, but likely high, costs associated with future NPDES and TMDL compliance. Among the reasons the City could provide for such special consideration would be: • The City is already by design a prime example of low impact development because of the low density of development, preservation of natural drainage courses and native habitat, and high degree of stormwater infiltration and minimal presence of engineered stormwater conveyances. • The City does not actually own any storm water conveyances so that the only municipally owned conveyances are those limited systems installed by the County. So the City is not entirely convinced that it should be considered an MS4 operator (we may need to resolve some confusion regarding catch basin ownership with LACFCD before this can be demonstrated). 24 • The City owns no easements that would allow it to install structural devices for treatment of TMDL pollutants in stormwater and any such attempt to install such devices in privately owned natural drainage courses would create significant adverse impacts on existing natural habitat and create tremendous CEQA, 2440 CFR 122.26 (b) (8) Municipal separate storm sewer means a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains): (i) Owned or operated by a State, city, town, borough, county, parish, district, association, or other public body (created by or pursuant to State law) having jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, including special districts under State law such as a sewer district, flood control district or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 208 of the CWA that discharges to waters of the United States; (ii) Designed or used for collecting or conveying storm water; • • NOVEMBER 9, 2009 PAGE 15 permitting as well as property right difficulties. Source control measures such as the horsekeeping/septic/graywater and limited institutional controls (e.g., trash collection) are the only options available for TMDL implementation. Stormwater retention is not feasible as some of the City is a landslide area. • Due to the City's low density residential land use, there is a very fmite list of potential sources of pollutants to be controlled: septic systems which may have failed, ineffective horsekeeping BMPs, and illegal gray water discharges. We could make the following argument in offering the water quality implementation measures. First we would point out that the City of Rolling Hills is already likely to be the most compliant City the Machado Lake nutrient and trash TMDL objectives because of its low density, high degree of perviousness, and natural drainage, which the Regional. Board should be encouraging as excellent examples of low impact development. Second, although we believe that monitoring is likely to demonstrate that the City is already compliant or closer to compliance with the nutrient TMDL than any practicable engineered solution could produce, the City Council does not want to continue to spend its limited funds on monitoring studies that don't actually make improvements to water quality, but would rather take the additional implementation measures it has identified to control the finite list of sources of anthropogenic pollutants within the City, thus improving water quality regardless of whether it is already meeting the TMDL requirements. We could also use the same set of arguments above and rather than request coverage under the Small MS4 general permit, suggest to the Regional Board that monitoring of stormwater discharges from the City is impractical and a waste of limited public funds. It would be better for water quality to allow the City to submit an implementation plan without a water quality monitoring component, but using a performance -based monitoring plan with measurable goals and objectives. There is no provision for such an approach in the Nutrient TMDL as currently written, so it is unlikely that the Regional Board would entertain this option. Alternatively, the City could confer with Regional Board staff on both of these frameworks in light of the City's objectives, and seek direction as to how best to accomplish these objectives from a regulatory standpoint, i.e., if these approaches would be feasible from the Regional Board staff's perspective: coverage under the Small MS4 general permit, or submittal of an expedited implementation plan with performance -based monitoring in lieu of water quality monitoring. Staff may also have a different regulatory mechanism to suggest that would meet the City's goals. NOVEMBER 9, 2009 PAGE 16 The time period to pursue these alternatives is short, as the deadlines for implementing a compliance option for the Nutrient TMDL are approaching. 1) The City must determine immediately if it is going to forgo any of the abovementioned alternatives and participate in the multi -city Lake Watershed Management Plan (Nutrient TMDL Option 1, $410,000). Under the TMDL, the participating cities must execute a Memorandum of Agreement by March 2010 and submit the Plan to the Regional Board the following September, and the City of Los Angeles needs a commitment from the City immediately to begin working on those deliverables. This is the most expensive TMDL compliance option and does not guarantee that the TMDL pollutant targets will be met by the deadline. In other words, there is a risk that the Regional Board could require additional compliance activities down the road. 2) The City has until March 2010 to submit its own monitoring and reporting plan (TMDL Option 2, $40,000 initial and $40,000 annually) or to submit a work plan for a special study (TMDL Option 3, $175,000-$300,000). If the City were to pursue a Small MS4 Permit, it would need a commitment from the Regional Board's Executive Officer that this March deadline would be stayed while the small MS4 application was being processed. 3) The Small MS4 General Permit option is creative and would ultimately address the City's concerns with spending limited funds on monitoring rather than implementing activities that improve water quality. The Council should consider whether it is willing to offer additional BMPs such as manure/stable control ordinance, septic inspection and upgrade programs, and inspections for greywater sources in consideration for the Regional Board designating the City as a Small MS4. If so, the Council should direct staff to promptly schedule a meeting with the Executive Officer of the Regional Board, preferably in the City, to discuss the viability of these alternatives before beginning work on any of the Machado Lake TMDL compliance plans. 4) If the Council is not willing to offer these additional BMPs in negotiations with the Regional Board, it should direct staff which Machado Lake Compliance Option to pursue. Staff can also provide any additional information you need to make this determination. MEMORANDUM. TO: Honorable Mayor and City Council FROM: Anton Dahlerbruch, City Manager DATE: October 6, 2009 SUBJECT: Monks v. Rancho Palos Verdes CC: Yolanta Schwartz, Planning Director Mike Jenkins, City Attorney Attached, you may recall, is a memorandum from City Attorney Mike Jenkins concerning how the Court's decision in Monks v. Rancho Palos Verdes (Monks) affects the City of Rolling Hills. This memorandum is to advise that the City has not yet had to consider a developer/property owner application to which the Monks ruling is applied. The Monks ruling basically states that a building permit cannot be denied solely for not achieving a 1.5 factor of geologic stability. For a building permit, each property will have to be evaluated on a case -by -case basis. The burden is on the property owner to demonstrate that the lot can be built on without risk of catastrophic damage or loss. The owner will have to meet that burden by providing geologic evidence (by way of an expert opinion) that the property will only experience slow, moderate movement, and there is no risk of a sudden catastrophic event. For the City Council's information, when the Monks ruling affects a future request for a building permit, it may be necessary for the City to direct the applicant to Willdan for plan review, permitting and inspection. Currently, it appears that the Los Angeles County Department of Building and Safety will not recognize the Monks decision. If/when such an application is received, our actions will follow the advice of the City Attorney. Please let Yolanta or me know if you have any questions. Thank you. JENKINS • HOGIN, LIT A LAW PARTNERSHIP MEMORANDUM TO: Yolanta Schwartz FROM: Michael Jenkins DATE: November 3, 2008 RE: Recent Developments in Regulatory Takings Jurisprudence Relating to the Application of Geological Safety Guidelines CONFIDENTIAL THIS MATERIAL IS SUBJEC:I TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUC I PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. Last month, the Second District Court of Appeal issued its opinion in Monks v. City of Rancho Palos Verdes. The plaintiffs in Monks were several landowners with property located in a landslide area of Rancho Palos Verdes. The area had been the subject of a building moratorium since 1978 due to its history of geological instability. The City's building code effectively prohibited residential construction unless a property owner could demonstrate that the property had a minimum gross (over the general area) as well as a local geological factor of safety of 1.5. None of the plaintiff property owners could demonstrate a gross factor of safety of 1.5. Therefore, the City's rules precluded them from improving their legal lots with single-family residences. There was no evidence to suggest that the landslide was subject to catastrophic failure; rather, the slide was subject to slow movement over time. Likewise, there was no evidence to suggest that construction of single-family residences on plaintiffs' properties would pose a significant threat to persons or property. Applying well -established legal principles, the Monks court held that the City's rules effected a permanent taking of plaintiffs' properties. Although the building code required a minimum 1.5 factor of safety for residential construction, the City was required to do more than simply offer up a statutory rule or other legislative decree in order to avoid a takings claim. Rather, as the United States Supreme Court first established in the case of Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, the government may only proscribe all beneficial use of property if it can show that background principles of nuisance and property law would prohibit the intended use. In order to constitute a public or private nuisance, the intended use must actually pose a significant harm to persons -or property. "State nuisance law- focuses on the actual harm posed by plaintiffs' intended use of the property, not scientific labels that merely reflect the uncertainties of the situation." Monks, slip op. at 47. Stated differently, "In essence, the city must show that, under common law nuisance principles, it could obtain an injunction against the construction of homes on [the subject] lots." Monks, stip op. at 44. This is a very high standard indeed —one that requires a detailed case -by -case evaluation rather than an across-the-board application of an inflexible statutory standard. While the Monks decision did not expand the law, it did put the City on notice of exactly what to expect from a court if the City were to rely solely on an applicant's inability to demonstrate the generally -accepted minimum safety factor of 1.5 as a basis for denying a permit for a primary residential use. In short, the City may not deny approval for residential construction simply on the grounds that a particular parcel may not be able to demonstrate a 1.5 factor of safety. A case -by -case inquiry will be necessary to ascertain whether the specific development proposal would pose a significant threat to the public health and safety. The City of Rolling Hills does not have in effect a moratorium similar to that of Rancho Palos Verdes, nor does it have any zoning or subdivision ordinance restricting construction in areas susceptible to landsliding. Currently, the County of Los Angeles, under contract with the City, processes building permit applications within the City of Rolling Hills pursuant to the County Building Code. The County applies its own geotechnical guidelines when processing permits and those guidelines strictly require a minimum 1.5 factor of safety for static loads and 1.1 for pseudostatic loads. Projects that cannot meet this minimum requires are denied building permits without the benefit of further analysis. RECOMMENDATION: The County's approach, in particular its strict reliance on the 1.5 factor of safety in all cases; may be too rigid and could lead to City liability under Monks. Accordingly, the City should ascertain whether the County building department has been advised by County Counsel relative to the implications of Monks, and whether it is prepared to apply a less rigid standard than strict reliance on the 1.5 factor of safety. If not, all future building permit applications within the I- ying Triangle area of the City (and any other portion of the City known to have geological issues) should be processed by the City's outside consultant Willdan, ratherthan the County, so that a proper case -by -case evaluation can be undertaken before the City makes a final decision that could lead to liability. The ity s ou a so ma e t is -office aware of any such applications and require Willdan to coordinate with the City Attorney's office throughout the process. The case -by -case approach will allow the City to manage the risk of an inverse condemnation action, while simultaneously affording the City the opportunity to impose conditions on the projects to mitigate against the anticipated effects of earth movement and to advance the same policy goals that underlie the applicable County geotechnical guidelines. Finally, to the extent that the City either has an informal practice or policy or communicates (orally or in writing) to property owners (and prospective property buyers) that building permits will not be issued for new residential construction in the Flying Triangle, this will need to change. Our position must be that: (1) -we do not absolutely preclude new residential construction in the Flying Triangle; (2) we do not rely solely on a rigid factor of safety evaluation of the stability of the lots; (3) we evaluate all applications on their own men s on a case- y -case asis; and (4) that we will issue a building permit for "new residential construction on property that has a lower than 1.5 factor of safety as long the construction does not pose a sicinificant harm to persons or ro er , even if it means t at t e resu ting ome may over time suffer from the effects of creeping movement and settlement. I am informed that Rancho Palos Verdes will seek review of the Monks decision in the California Supreme Court. In the event that the Supreme Court accepts review of Monks, the advice contained in this memorandum could change. • • JE WS HOGIN, LLP A LAW PARTNERSHIP MEMORANDUM TO: THE HONORABLE MAYOR AND MFIVMERS OF THE CITY COUNCIL CC: ANTON DAHLERBRUCH, CITY MANAGER MICHAEL JLNKINS, CITY ATTORNEY FROM: ,IZABETH M. CALCIANO, ASST. CITY ATTORNEY DATE: JULY 20, 2009 RE: SOLAR PANEL REGULATION CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBT,E RECORDS. Attached please find the memorandum on solar energy system regulation and other related issues dated March 16, 2009 that we discussed at the July 13, 2009 City Council meeting. For your ease of reference, however, the two questions raised at the meeting are discussed below. No Discretion Regarding Aesthetics Question: Whether the City can regulate the aesthetics of solar panels? Answer: State law severely limits the City's ability to regulate solar energy systems.' In fact, state law addresses the aesthetics issue directly by providing: "It is the intent of the Legislature that local agencies not adopt ordinances that create unreasonable barriers to the installation of solar energy systems, including, but not limited to, design review for aesthetic purposes, and not unreasonably restrict the ability of homeowners and 'Government Code Section 65850.5; Health and Safety Code Section 17959.1 (see legislative findings). • JENKINS & HOGIN, LLP 11111 JULY 20, 2009 PAGE 2 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY - CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY - ACCESSIBLE RECORDS. agricultural and business concerns to install solar energy systems." Further, the City must administratively approve applications for solar energy systems (via a building permit or some other kind of nondiscretionary permit or zone clearance process) unless the building official has a good faith belief that the system could have a specific adverse impact upon the public health or safety. This means that the City does not have the discretion to consider aesthetics. Regulation Based on Size Question: Whether the City can regulate solar panels that are over a particular size or wattage? Answer: Unfortunately, the same state law that preempts the City from regulating solar panels does not permit the City any ability to regulate based on any size or wattage limit. Arguably, it is implicit in the law that only solar energy systems that are built to offset the needs of the building are protected, but the relevant statutes are silent on this issue.2 2Note that the Solar Shade Control Act, which provides state legal protections for solar collectors from the growth of shade trees on neighboring properties, specifically excludes from protection solar collectors that are designed and intended "to offset more than a building's electricity demand." (See Public Resources Code section 25981.) Since the Legislature knows how to, but chose not to, limit Health and Safety Code section 17595.1 in this way, it can be argued that no such limit is permitted. Nevertheless, the City still has an argument that such a requirement was implicit given the purpose of the act to assist homeowners and businesses. • • JENKINS & HOGIN, LLP A LAW PARTNERSHIP TO: YOLANTA SCHWARTZ CC: ANTON DAHLERBRUCH_ MICHAEL JENKINS FROM: ELIZABETH M. CALCIANO DA IL: MARCH 16, 2009 RE: SOLAR PANEL LAWS MEMORANDUM INTRODUCTION CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FE.; yam m PUBLICLY - ACCESSIBLE RECORDS. You have requested an opinion as to the City's authority to regulate various energy -saving technological features on private properties, specifically- including the following: I. Traditional solar panels. (usually placed on roofs of structures). 2. Ground -mounted solar panels whether self-supporting or supported by a structure (i.e. a building or a fence). 3. Photovoltaic cells. 4. Wind turbines, either cylindrical or with the long blades; free standing or on top of structures. 5. Other devices for energy efficiency (i.e. coils for heating of a pool placed against a structure to garner sun's heat). •JENKINS & HQGIN, LLP • MARCH 16, 2009 PAGE 2 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. SHORT ANSWER The City's ability to regulate solar panels, both traditional and otherwise, and other devices for solar energy collection has been sharply circumscribed by preemptive State law. Currently, there are no limits on a City's ability to regulate wind turbines. DISCUSSION City's Ability To Regulate Solar Panels, Photovoltaic Cells and Other Solar Energy Collection Devices Health and Safety Code Section 17959.1 severely restricts the City's ability to regulate solar energy systems through traditional land use regulations. A "solar energy system" is defined to mean either of the following: (1) Any solar collector or other solar energy device whose primary purpose is to provide for the collection, storage, and distribution of solar energy for space heating , space cooling, electric generation, or water heating. (2) Any structural design feature of a building, whose primary purpose is to provide for the collection, storage, and distribution of solar energy for electricity generation, space heating or cooling, or for water heating. This definition is broad and is not limited to roof -mounted solar panels; hence, it incorporates solar panels placed in other locations as well as photovoltaic cells (which is essentially the technical term for a solar panel) or any solar collector or "structural design feature" whose primary purpose is to provide JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 3 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS TI'dEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. for collection, storage and distribution of solar energy for space heating or cooling, electric generation or water heating (including coils for heating of a pool placed against a structure). Health and Safety Code Section 17959.1 provides that the city must administratively approve applications for solar energy systems (via a building perrnit or some other kind of nondiscretionary pelltit) unless the building official has a good faith belief that the system could have a specific adverse impact upon the public health or safety. (Health & Safety Code 17959.1(a).) If there is such a good faith belief, only then may the city require an application for a use permit. (Id.) If a use permit is required because the building official has pointed to the potential for a specific adverse health or safety impact, the use permit may not be denied unless the city makes written findings that the proposed system installation would have a specific adverse impact on the public health or safety and there is no "feasible method to satisfactorily mitigate or avoid the specific, adverse impact." (Health & Safety Code 17959.1(b).) "Feasible method to satisfactorily mitigate or avoid the specific, adverse impact" is defined in the law. It includes, but is not limited to, any cost effective method, condition, or mitigation imposed by the city on another similarly situated application in a prior successful application for a permit. (Health & Safety Code 17959.1(e)(1).) Also, the city is required to use its best efforts to ensure that the selected conditions or mitigation measures do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance. (Health & Safety Code 17959.1(e)(1), Civil Code 714(d)(1)(A) and (B).) "Significantly" means the following: "1. For solar domestic water heating systems or solar swimming pool heating systems that comply with state and federal law, "significantly" means an amount exceeding 20 percent of the cost of the system or decreasing the efficiency of the solar energy system by an amount exceeding 20 percent, as originally specified and proposed. Civil Code 714(d)(1)(A). 2. For photovoltaic systems that comply with state and federal law, "significantly" means an amount not to exceed two thousand dollars over JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 4 C ONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. the system cost as originally specified and proposed, or a decrease in system efficiency of an amount exceeding 20 percent as originally specified and proposed." (Civil Code 714(d)(1)(B).) Although this restriction on the City's authority to regulate solar energy systems is broad, it is important to note that state law only limits the City's ability to regulate the placement of the actual solar energy systems and accessory equipment. State law does not authorize structures to be built that do not comply with local development standards just by including solar panels on the side of a non -compliant building. Solar energy systems must be allowed to exceed the maximum allowable building height in the zoning ordinance, even if there is no mechanism in the ordinance that allows such height exceedance. If the zoning ordinance does not provide a ministerial process, solar panels may be installed by right. Our office has prepared a zoning amendment for other cities to exempt solar panels from the height limit and make solar energy systems subject to a ministerial over-the- counter zone clearance process in order to comply with State law but still provide staff an opportunity to work with the property owners and encourage them to voluntarily place the systems in preferable locations. It is also possible through adoption of a local solar ordinance to authorize the Planning Director to modify applicable development standards in the event that application of a particular standard would prevent the system from operating efficiently. Please inform me if you would like our office to assist you with such an amendment. Finally, the City should be aware that the Legislature has set up a Solar Shade Control Act (Public Resources Code section 25980 et seq.) in order to promote the widespread use of alternative energy devices, such as solar collectors, requiring specific and limited controls on trees and shrubs. This primarily impacts residents' ability to grow trees and plants that shade their neighbor's solar collectors. However, note that the City can choose to be exempt JENKINS & LOGIN, LLP MARCH 16, 2009 PAGE 5 C ONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONMINTS TH'EIIEOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. from this law if the City Council votes to be exempt. (Public Resources Code Section § 25985.) City's Ability To Regulate Wind Turbines State law currently does not limit the City's ability to regulate wind turbines or to enforce its usual height limits for structures. Therefore, property owners will likely encounter difficulties meeting the height limits in the zoning ordinance if they want to install wind turbines under the current technology. If the City wants to permit wind turbines, the City's Municipal Code would have to be amended to accommodate the various heights and sizes of this new technology. Note however, that as wind technology becomes more sophisticated, the systems are becoming much smaller. As an aside, an interesting article discussing the current state of residential wind turbines was recently in Time Magazine (Nov. 20, 2008). There may be more interest in such technology now because of a new tax credit. www.time.com/time/magazine/article/0,9171,1860920,00.html As you may recall, in the past Government Code section 65892.13 did provide some local planning guidance for the installation of wind turbines, but the bill adopting that section had a sunset provision and Government Code section 65892.13 was automatically repealed in 2006. Similarly, AB 2789, a bill from last year attempted to revive Section 65892.13, but was not adopted by the Legislature. We are not aware of pending bills addressing wind turbines. APPLICABLE STATUTES For your ease of reference, set forth below are four of the major provisions addressing energy infrastructure: JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 6 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. California Health & Safety Code 17959.1 Civil Code § 801.5 The Solar Shade Control Act (Public Resources Code section 25980 et seq.) The Solar Rights Act of 1978 (Civil Code section 714) Health and Safety Code § 17959.1. Solar energy systems; approval of applications through issuance of building permits; denial; conditions imposed; health and safety standards; definitions (a) A city or county shall administratively approve applications to install solar energy systems though the issuance of a building permit or similar nondiscretionary permit. However, if the building official of the city or county has agood faith belief that the solar energy could have a specific, gY system adverse impact upon the public health and safety, the city or county may require the applicant to apply for a use permit. (b) A city or county may not deny an application for a use permit to install a solar energy system unless it makes written findings based upon substantial evidence in the record that the proposed installation would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. This finding shall include the basis for the rejection of potential feasible alternatives of preventing the adverse impact. (c) Any conditions imposed on an application to install a solar energy system must be designed to mitigate the specific, adverse impact upon the public health and safety at the lowest cost possible. (d)(1) A solar energy system shall meet applicable health and safety standards and requirements imposed by state and local permitting authorities. JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 7 C O NFIDENEAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. (2) A solar energy system for heating water shall be certified by the Solar Rating Certification Corporation (SRCC) or other nationally recognized certification agency. SRCC is a nonprofit third party supported by the United States Depai intent of Energy. The certification shall be for the entire solar energy system and installation. (3) A solar energy system for producing electricity shall meet all applicable safety and performance standards established by the National Electrical Code, the Institute of Electrical and Electronics Engineers, and accredited testing laboratories such as Underwriters Laboratories and, where applicable, rules of the Public Utilities Commission regarding safety and reliability. (e) The following definitions apply to this section: (1) "A feasible method to satisfactorily mitigate or avoid the specific, adverse impact" includes, but is not limited to, any cost effective method, condition, or mitigation imposed by a city or county on another similarly situated application in a prior successful application for a permit. A city or county shall use its best efforts to ensure that the selected method, condition, or mitigation meets the conditions of subparagraphs (A) and (B) of paragraph (1) of subdivision (d) of Section 714 of the Civil Code. (2) "Solar energy system" has the meaning set forth in paragraphs (1) and (2) of subdivision (a) of Section 801.5 of the Civil Code. (3) A "specific, adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, and written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. Civil Code § 801.5. Solar easement and solar energy system defined; minimum description in instrument JENKINS & HOGIN, LLP • MARCH 16, 2009 PAGE 8 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONI'ENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. (a) The right of receiving sunlight as specified in subdivision 18 of Section 801 shall be referred to as a solar easement. "Solar easement" means the right of receiving sunlight across real property of another for any solar energy system. As used in this section, "solar energy system" means either of the following: (1) Any solar collector or other solar energy device whose primary purpose is to provide for the collection, storage, and distribution of solar energy for space heating , space cooling, electric generation, or water heating. (2) Any structural design feature of a building, whose primary purpose is to provide for the collection, storage, and distribution of solar energy for electricity generation, space heating or cooling, or for water heating. Civil Code § 714. Unenforceability of deeds, contracts or instruments prohibiting or restricting installation or use of solar energy system (a) Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property, and any provision of a governing document, as defined in subdivision (j) of Section 1351, that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable. (b) This section does not apply to provisions that impose reasonable restrictions on solar energy systems. However, it is the policy of the state to promote and encourage the use of solar energy systems and to remove obstacles thereto. Accordingly, reasonable restrictions on a solar energy system are those restrictions that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or that allow for an alternative system of comparable cost, efficiency, and energy conservation benefits. • • d.„ -to eci orate Aicp J JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 9 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. (c)(1) A solar energy system shall meet applicable health and safety standards and requirements imposed by state and local permitting authorities. (2) A solar energy system for heating water shall be certified by the Solar Rating Certification Corporation (SRCC) or other nationally recognized certification agencies. SRCC is a nonprofit third party supported by the United States Department of Energy. The certification shall be for the entire solar energy system and installation. (3) A solar energy system for producing electricity shall also meet all applicable safety and perfoiiiiance standards established by the National Electrical Code, the Institute ofElectrical and Electronics Engineers, and accredited testing laboratories such as Underwriters Laboratories and, where applicable, rules of the Public Utilities Commission regarding safety and reliability. (d) For the purposes of this section: (1)(A) For solar domestic water heating systems or solar swimming pool heating systems that comply with state and federal law, "significantly" means an amount exceeding 20 percent of the cost of the system or decreasing the efficiency of the solar energy system by an amount exceeding 20 percent, as originally specified and proposed. (B) For photovoltaic systems that comply with state and federal law, "significantly" means an amount not to exceed two thousand dollars ($2,000) over the system cost as originally specified and proposed, or a decrease in system efficiency of an amount exceeding 20 percent as originally specified and proposed. (2) "Solar energy system" has the same meaning as defined in paragraphs (1) and (2) of subdivision (a) of Section 801.5. (e)(1) Whenever approval is required for the installation or use of a solar energy JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 10 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE TIM CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. system, the application for approval shall be processed and approved by the appropriate approving entity in the same manner as an application for approval of an architectural modification to the property, and shall not be willfully avoided or delayed. (2) For an approving entity that is a homeowners' association, as defined in subdivision (a) of Section 1351, and that is not a public entity, both of the following shall apply: (A) The approval or denial of an application shall be in writing. (13) If an application is not denied in writing within 60 days from the date of receipt of the application, the application shall be deemed approved, unless that delay is the result of a reasonable request for additional information. (f) Any entity, other than a public entity, that willfully violates this section shall be liable to the applicant or other party for actual damages occasioned thereby, and shall pay a civil penalty to the applicant or other party in an amount not to exceed one thousand dollars ($1,000). (g) In any action to enforce compliance with this section, the prevailing party shall be awarded reasonable attorney's fees. (h)(1) A public entity that fails to comply with this section may not receive funds from a state -sponsored grant or loan program for solar energy. A public entity shall certify its compliance with the requirements of this section when applying for funds from a state -sponsored grant or loan program. (2) A local public entity may not exempt residents in its jurisdiction from the requirements of this section. Public Resources Code § 25980. Short title; public policy JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 11 C ONFIDENTIALL THIS MATERIAL 1S SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILFWITH PUBLICLY -ACCESSIBLE RECORDS. This chapter shall be known and may be cited as the Solar Shade Control Act. It is the policy of the state to promote all feasible means of energy conservation and all feasible uses of alternative energy supply sources. In particular, the state encourages the planting and maintenance of trees and shrubs to create shading, moderate outdoor temperatures, and provide various economic and aesthetic benefits. However, there are certain situations in which the need for widespread use of alternative energy devices, such as solar collectors, requires specific and limited controls on trees and shrubs. § 25981. Solar collector (a) As used in this chapter, "solar collector" means a fixed device, structure, or part of a device or structure, on the roof of a building, that is used primarily to transform solar energy into thermal, chemical, or electrical energy. The solar collector shall be used as part of a system that makes use of solar energy for any or all of the following purposes: (1) Water heating. (2) Space heating or cooling. (3) Power generation. (b) Notwithstanding subdivision (a), for the purpose of this chapter, "solar collector" includes a fixed device, structure, or part of a device or structure that is used primarily to transform solar energy into thermal, chemical, or electrical energy and that is installed on the ground because a solar collector cannot be installed on the roof of the building receiving the energy due to inappropriate roofing material, slope of the roof, structural shading, or orientation of the building. ENKINS & HOGIN, LLP • MARCH 16, 2009 PAGE 12 C ONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. (c) For the purposes of this chapter, "solar collector" does not include a solar collector that is designed and intended to offset more than the building's electricity demand. (d) For purposes of this chapter, the location of a solar collector is required to comply with the local building and setback regulations, and to be set back not less than five feet from the property line, and not less than 10 feet above the ground. A solar collector may be less than 10 feet in height only if, in addition to the five-foot setback, the solar collector is set back three tunes the amount lowered. § 25982. After installation of solar collector; placement or growth of tree or shrub on property of another After the installation of a solar collector, a person owning or in control of another property shall not allow a tree or shrub to be placed or, if placed, to grow on that property so as to cast a shadow greater than 10 percent of the collector absorption area upon that solar collector surface at any one time between the hours of 10 a.m. and 2 p.m., local standard time. 25932.1. Solar shade control notice; requirements (a) An owner of a building where a solar collector is proposed to be installed may provide written notice by certified mail to a person owning property that may be affected by the requirements of this chapter prior to the installation of the solar collector. If a notice is mailed, the notice shall be mailed no more than 60 days prior to installation of the solar collector and shall read as follows: SOLAR SHADE CONTROL NOTICE ,P ENKINYS & HOCrIN, LLP • MARCH 16, 2009 PAGE 13 C ONFIDEINTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE, WITH PUBLICLY -ACCESSIBLE RECORDS. Under the Solar Shade Control Act (California Public Resources Code § 25980 et seq.) a tree or shrub cannot cast a shadow greater than 10 percent of a solar collector absorption area upon that solar collector surface at any one time between the hours of 10 a.m. and 2 p.m. local standard time if the tree or shrub is placed after installation of a solar collector. The owner of the building where a solar collector is proposed to be installed is providing this written notice to persons owning property that inay be affected by the requirements of the act no more than 60 days prior to the installation of a solar collector. The building owner is providing the following information: Name and address of building owner: Telephone number of building owner: Address of building and specific location where a solar collector will be installed (including street number and naive, city/county, ZIP Code, and assessor's book, page, and parcel number): Installation date of solar collector: Building Owner, Date (b) If the owner of the building where a solar collector is proposed to be installed provided the notice pursuant to subdivision (a), and the installation date is later than the date specified in that notice, the later date shall be specified in a subsequent notice to persons receiving the initial notice. (c)(1) A transferor of the building where the solar collector is installed may provide a record of persons receiving the notice pursuant to subdivision (a) to a transferee of the building. JENKINS & HOGIN, LLP • MARCH 16, 2009 PAGE 14 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. (2) A transferor receiving a notice pursuant to subdivision (a) may provide the notice to a transferee of the property. § 25983. Violations; private nuisance; written notice from owner of solar collector A tree or shrub that is maintained in violation of Section 25982 is a private nuisance, as defined in Section 3481 of the Civil Code, if the person who maintains or permits the tree or shrub to be maintained fails to remove or alter the tree or shrub after receiving a written notice from the owner or agent of the affected solar collector requesting compliance with the requirements of Section 25982. 25984. Application of chapter; exemptions This chapter does not apply to any of the following: (a) A tree or shrub planted prior to the installation of a solar collector. (b) A tree planted, grown, or harvested on timberland as defined in Section 4526 or on land devoted to the production of commercial agricultural crops. (c) The replacement of a tree or shrub that had been growing prior to the installation of a solar collector and that, subsequent to the installation of the solar collector, dies, or is removed for the protection of public health, safety, or the environment. (d) A tree or shrub that is subject to a city or county ordinance. JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 15 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE TIE CONTENTS THEREOF. DO NOT FIL,F, WITH PUBLICLY -ACCESSIBLE RECORDS. § 25985. Ordinance to exempt city or unincorporated areas from provisions of chapter; requirements (a) A city, or for unincorporated areas, a county, may adopt, by majority vote of the governing body, an ordinance exempting their jurisdiction from the provisions of this chapter. The adoption of the ordinance shall not be subject to the California Environmental Quality Act (commencing with Section 21000). (b) Notwithstanding the requirements of this chapter, a city or a county ordinance specifying requirements for tree preservation or solar shade control shall govern within the jurisdiction of the city or county that adopted the ordinance. § 25936. Passive or natural solar system which impacts on adjacent active solar system; action to exempt from provisions of chapter Any person who plans a passive or natural solar heating system or cooling system or heatingand cooling system which would impact on an adjacent active solar system may seek equitable relief in a court of competent jurisdiction to exempt such system from the provisions of this chapter. The court may grant such an exemption based on a finding that the passive or natural system would provide a demonstrably greater net energy savings than the active system which would be impacted. JENKINS & HOGIN, LLP A LAW PARTNERSHIP MEMORANDUM TO: YOLANTA SCHWARTZ CC: ANTON DAHLERBRUCH.. MICHAEL JENKINS FROM: ELIZABETH M. CALCIANO DA 1E: MARCH 16, 2009 RE: SOLAR PANEL LAWS INTRODUCTION CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY - ACCESSIBLE RECORDS. You have requested an opinion as to the City's authority to regulate various energy -saving technological features on private properties, specifically including the following: 1. Traditional solar panels (usually placed on roofs of structures). 2. Ground -mounted solar panels whether self-supporting or supported by a structure (i.e. a building or a fence). 3. Photovoltaic cells. 4. Wind turbines, either cylindrical or with the long blades; free standing or on top of structures. 5. Other devices for energy efficiency (i.e. coils for heating of a pool placed against a structure to garner sun's heat). JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE'2 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. SHORT ANSWER The City's ability to regulate solar panels, both traditional and otherwise, and other devices for solar energy collection has been sharply circumscribed by preemptive State law. Currently, there are no limits on a City's ability to regulate wind turbines. DISCUSSION City's Ability To Regulate Solar Panels, Photovoltaic Cells and Other Solar Energy Collection Devices Health and Safety Code Section 17959.1 severely restricts the City's ability to regulate solar energy systems through traditional land use regulations. A "solar energy system" is defined to mean either of the following: (1) Any solar collector or other solar energy device whose primary purpose is to provide for the collection, storage, and distribution of solar energy for space heating space cooling, electric generation, or water heating. (2) Any structural design feature of a building,whose primary purpose is to provide for the collection, storage, and distribution of solar energy for electricity generation, space heating or cooling, or for water heating. This definition is broad and is not limited to roof -mounted solar panels; hence, it incorporates solar panels placed in other locations as well as photovoltaic cells (which is essentially the technical term for solar panel) or any solar collector or "structural design feature" whose primary purpose is to provide • QQ_, S , CMtt IbCOJ LL B } (�1 JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 3 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. for collection, storage and distribution of solar energy for space heating or cooling, electric generation or water heating (including coils for heating of a pool placed against a structure): Health and Safety Code Section 17959.1provides that the city must administratively approve applications for solar energy systems (via a building permit or some other kind of nondiscretionary permit) unless the building official has a good faith belief that the system could have a specific adverse impact upon the public health or safety. (Health & Safety Code 17959.1(a).) If there is such a good faith belief, only then may the city require an application for a use permit. (Id.) If a use permit is required because the building official has pointed to the potential for a specific adverse health or safety impact, the use permit may not be denied unless the city makes written findings that the proposed system installation would have a specific adverse impact on the public health or safety and there is no "feasible method to satisfactorily mitigate or avoid the specific, adverse impact." (Health & Safety Code17959.1(b).) "Feasible method to satisfactorily mitigate or avoid the specific, adverse impact" is defined in the law. It includes, but is not limited to, any cost effective method, condition, or mitigation imposed by the city on another similarly situated application in a prior successful application for a permit. (Health & Safety Code 17959.1(e)(1).) Also, the city is required to use its best efforts to ensure that the selected conditions or mitigation measures do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance. (Health & Safety Code 17959.1(e)(1), Civil Code 714(d)(1)(A) and (B).). "Significantly" means the following: "1. For solar domestic water heating systems or solar swimming pool heating systems that comply with state and federal law, "significantly" means an amount exceeding 20 percent of the cost of the system or decreasing the efficiency of the solar energy system by an amount exceeding 20 percent, as originally specified and proposed. Civil Code 714(d)(1)(A). 2. For photovoltaic systems that comply with state and federal law, "significantly" means an amount not to exceed two thousand dollars over JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 4 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. the system cost as originally specified and proposed, or a decrease in system efficiency of an amount exceeding 20 percent as originally specified and proposed." (Civil Code 714(d)(1)(B).) Although this restriction on the City's authority to regulate solar energy systems is broad, it is important to note that state law only limits the City's ability to regulate the placement of the actual solar energy systems and accessory equipment. State law does not authorize structures to be built that do not comply with local development standards just by including solar panels on the side of a non -compliant building. Solar energy systems must be allowed to exceed the maximum allowable building height in the zoning ordinance, even if there is no mechanism in the ordinance that allows such height exceedance. If the zoning ordinance does not provide a ministerial process, solar panels may be installed by right. Our office has prepared a zoning amendment for other cities to exempt solar panels from the height limit and make solar energy systems subject to a ministerial over-the- counter zone clearance process in order to comply with State law but still provide staff an opportunity to work with the property owners and encourage them to voluntarily place the systems in preferable locations. It is also possible through adoption of a local solar ordinance to authorize the Planning Director to modify applicable development standards in the event that application of a particular standard would prevent the system from operating efficiently. Please inform me if you would like our office to assist you with such an amendment. Finally, the City should be aware that the Legislature has set up a Solar Shade Control Act (Public Resources Code section 25980 et seq.) in order to promote the widespread use of alternative energy devices, such as solar collectors, requiring specific and limited controls on trees and shrubs. This primarily impacts residents' ability to grow trees and plants that shade their neighbor's solar collectors. However, note that the City can choose to be exempt JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 5 C ONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. from this law if the City Council votes to be exempt. (Public Resources Code Section § 25985.) City's Ability To Regulate Wind Turbines State law currently does not limit the City's ability to regulate wind turbines or to enforce its usual height limits for structures. Therefore, property owners will likely encounter difficulties meeting the height limits in the zoning ordinance if they want to install wind turbines under the current technology. If the City wants to permit wind turbines, the City's Municipal Code would have to be amended to accommodate the various heights and sizes of this new technology. Note however, that as wind technology becomes more sophisticated, the systems are becoming much smaller. As an aside, an interesting article discussing the current state of residential wind turbines was recently in Time Magazine (Nov. 20, 2008). There may be more interest in such technology now because of a new tax credit. www.time.com/time/magazine/article/0,9171,1860920,00.html As you may recall, in the past Government Code section 65892.13 did provide some local planning guidance for the installation of wind turbines, but the bill adopting that section had a sunset provision and Government Code section 65892.13 was automatically repealed in 2006. Similarly, AB 2789, a bill from last year attempted to revive Section 65892.13, but was not adopted by the Legislature. We are not aware of pending bills addressing wind turbines. APPLICABLE STATUTES For your ease of reference, set forth below are four of the major provisions addressing energy infrastructure: JENKINS & HOGIN, LLP 4 MARCH 16, 2009 PAGE 6 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. California Health & Safety Code 17959.1 Civil Code § 801.5 The Solar Shade Control Act (Public Resources Code section 25980 et seq.) The Solar Rights Act of 1978 (Civil Code section 714) Health and Safety Code § 17959.1. Solar energy systems; approval of applications through issuance of building permits; denial; conditions imposed; health and safety standards; definitions (a) A city or county shall administratively approve applications to install solar energy systems though the issuance of a building permit or similar nondiscretionary permit. However, if the building official of the city or county has a good faith belief that the solar energy system could have a specific, adverse impact upon the public health and safety, the city or county may require the applicant to apply for a use permit. (b) A city or county may not deny an application for a use permit to install a solar energy system unless it makes written findings based upon substantial evidence in the record that the proposed installation would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. This finding shall include the basis for the rejection of potential feasible alternatives of preventing the adverse impact. (c) Any conditions imposed on an application to install a solar energy system must be designed to mitigate the specific, adverse impact upon the public health and safety at the lowest cost possible. (d)(1) A solar energy system shall meet applicable health and safety standards and requirements imposed by state and local permitting authorities. JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 7 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. (2) A solar energy system for heating water shall be certified by the Solar Rating Certification Corporation (SRCC) or other nationally recognized certification agency. SRCC is a nonprofit third party supported by the United States Department of Energy. The certification shall be for the entire solar energy system and installation. (3) A solar energy system for producing electricity shall meet all applicable safety and performance standards established by the National Electrical Code, the Institute of Electrical and Electronics Engineers, and accredited testing laboratories such as Underwriters Laboratories and, where applicable, rules of the Public Utilities Commission regarding safety and reliability. (e) The following definitions apply to this section: (1) "A feasible method to satisfactorily mitigate or avoid the specific, adverse. impact" includes, but is not limited to, any cost effective method, condition, or mitigation imposed by a city or county on another similarly situated application in a prior successful application for a permit. A city or county shall use its best efforts to ensure that the selected method, condition, or mitigation meets the conditions of subparagraphs (A) and (B) of paragraph (1) of subdivision (d) of Section 714 of the Civil Code. (2) "Solar energy system" has the meaning set forth in paragraphs (1) and (2) of subdivision (a) of Section 801.5 of the Civil Code. (3) A "specific, adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, and written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. Civil Code § 801.5. Solar easement and solar energy system defined; minimum description in instrument JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 8 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. (a) The right of receiving sunlight as specified in subdivision 18 of Section 801 shall be referred to as a solar easement. "Solar easement" means the right of receiving sunlight across real property of another for any solar energy system. As used in this section, "solar energy system" means either of the following: (1) Any solar collector or other solar energy device whose primary purpose is to provide for the collection, storage, and distribution of solar energy for space heating , spacecooling, electric generation, or water heating. (2) Any structural design feature of a building, whose primary purpose is to provide for the collection, storage, and distribution of solar energy for electricity generation, space heating or cooling, or for water heating. Civil Code § 714. Unenforceability of deeds, contracts or instruments prohibiting or restricting installation or use of solar energy system (a) Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property, and any provision of a governing document, as defined in subdivision (j) of Section 1351, that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable. (b) This section does not apply to provisions that impose reasonable restrictions on solar energy systems. However, it is the policy of the state to promote and encourage the use of solar energy systems and to remove obstacles thereto. Accordingly, reasonable restrictions on a solar energy system are those restrictions that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or that allow for an alternative system of comparable cost, efficiency, and energy conservation benefits. JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 9 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. (c)(1) A solar energy system shall meet applicable health and safety standards and requirements imposed by state and local permitting authorities. (2) A solar energy system for heating water shall be certified by the Solar Rating Certification Corporation (SRCC) or other nationally recognized certification agencies. SRCC is a nonprofit third party supported by the United States Department of Energy. The certification shall be for the entire solar energy system and installation. (3) A solar energy system for producing electricity shall also meet all applicable safety and performance standards established by the National Electrical Code, the Institute of Electrical and Electronics Engineers, and accredited testing laboratories such as Underwriters Laboratories and, where applicable, rules of the Public Utilities Commission regarding safety and reliability. (d) For the purposes of this section: (1)(A) For solar domestic water heating systems or solar swimming pool heating systems that comply with state and federal law, "significantly" means an amount exceeding 20 percent of the cost of the system or decreasing the efficiency of the solar energy system by an amount exceeding 20 percent, as originally specified and proposed. (B) For photovoltaic systems that comply with state and federal law, "significantly" means an amount not to exceed two thousand dollars ($2,000) over the system cost as originally specified and proposed, or a decrease in system efficiency of an amount exceeding 20 percent as originally specified and proposed. (2) "Solar energy system" has the same meaning as defined in paragraphs (1) and (2) of subdivision (a) of Section 801.5. (e)(1) Whenever approval is required for the installation or use of a solar energy JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 11 C ONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. This chapter shall be known and maybe cited as the Solar Shade Control Act. It is the policy of the state to promote all feasible means of energy conservation and all feasible uses of alternative energy supply sources. In particular, the state encourages the planting and maintenance of trees and shrubs to create shading, moderate outdoor temperatures, and provide various economic and aesthetic benefits. However, there are certain situations in which the need for widespread use of alternative energy devices, such as solar collectors, requires specific and limited controls on trees and shrubs. § 25981. Solar collector (a) As used in this chapter, "solar collector" means a fixed device, structure, or part of a device or structure, on the roof of a building, that is used primarily to transform solar energy into thermal, chemical, or electrical energy. The solar collector shall be used as part of a system that makes use of solar energy for any or all of the following purposes: (1) Water heating. (2) Space heating or cooling. (3) Power generation. (b) Notwithstanding subdivision (a), for the purpose of this chapter, "solar collector" includes a fixed device, structure, or part of a device or structure that is used primarily to transform solar energy into thermal, chemical, or electrical energy and that is installed on the ground because a solar collector cannot be installed on the roof of the building receiving the energy due to inappropriate roofing material, slope of the roof, structural shading, or orientation of the building. JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 12 C ONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. (c) For the purposes of this chapter, "solar collector" does not include a solar collector that is designed and intended to offset more than the building's electricity demand. (d) For purposes of this chapter, the location of a solar collector is required to comply with the local building and setback regulations, and to be set back not less than five feet from the property line, and not less than 10 feet above the ground. A solar collector may be less than 10 feet in height only if, in addition to the five-foot setback, the solar collector is set back three times the amount lowered. § 25982. After installation of solar collector; placement or growth of tree or shrub on property of another After the installation of a solar collector, a person owning or in control of another propertyshall not allow a tree or shrub to be placed or, if placed, to grow on that property so as to cast a shadow greater than 10 percent of the collector absorption area upon that solar collector surface at any one time between the hours of 10 a.m. and 2 p.m., local standard time. 25982.1. Solar shade control notice; requirements (a) An owner of a building where a solar collector is proposed to be installedmay provide written notice by certified mail to a person owning property that may be affected by the requirements of this chapter prior to the installation of the solar collector. If a notice is mailed, the notice shall be mailed no more than 60 days prior to installation of the solar collector and shall read as follows: SOLAR SHADE CONTROL NOTICE JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 13 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. Under the Solar Shade Control Act (California Public Resources Code § 25980 et seq.) a tree or shrub cannot cast a shadow greater than 10 percent of a solar collector absorption area upon that solar collector surface at any one time between the hours of 10 a.m. and 2 p.m. local standard time if the tree or shrub is placed after installation of a solar collector. The owner of the building where a solar collector is proposed to be installed is providing this written notice to persons owning property that may be affected by the requirements, of the act no more than 60 days prior to the installation of a solar collector.. The building owner is providing the following information: Name and address of building owner: Telephone number of building owner: Address of building and specific location where a solar collector will be installed (including street number and name, city/county, ZIP Code, and assessor's book, page, and parcel number): Installation date of solar collector: Building Owner, Date (b) If the owner of the building where a solar collector is proposed to be installed. provided the notice pursuant to subdivision (a), and the installation date is later than the date specified in that notice, the later date shall be specified in a subsequent notice to persons receiving the initial notice. (c)(1) A transferor of the building where the solar collector is installed may provide a record of persons receiving the notice pursuant to subdivision (a) to a transferee of the building. JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 14 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. (2) A transferor receiving a notice pursuant to subdivision (a) may provide the notice to a transferee of the property. § 25983. Violations; private nuisance; written notice from owner of solar collector A tree or shrub that is maintained in violation of Section 25982 is a private nuisance, as defined in Section 3481 of the Civil Code, if the person who maintains or permits the tree or shrub to be maintained fails to remove or alter the tree or shrub after receiving a written notice from the owner or agent of the affected solar collector requesting compliance with the requirements of Section 25982. 25984. Application of chapter; exemptions This chapter does not apply to any of the following: (a) A tree or shrub planted prior to the installation of a solar collector. (b) A tree planted, grown, or harvested on timberland as defined in Section 4526 or on land devoted to the production of commercial agricultural crops.. (c) The replacement of a tree or shrub that had been growing prior to the installation of a solar collector and that, subsequent to the installation of the solar collector, dies, or is removed for the protection of public health, safety, or the environment. (d) A tree or shrub that is subject to a city or county ordinance. JENKINS & HOGIN, LLP MARCH 16, 2009 PAGE 15 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY -CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS THEREOF. DO NOT FILE WITH PUBLICLY -ACCESSIBLE RECORDS. § 25985. Ordinance to exempt city or unincorporated areas from provisions of chapter; requirements (a) A city, or for unincorporated areas, a county, may adopt, by majority vote of the governing body, an ordinance exempting their jurisdiction from the provisions of this chapter. The adoption of the ordinance shall not be subject to the California Environmental Quality Act (commencing with Section 21000). (b) Notwithstanding the requirements of this chapter, a city or a county . ordinance specifying requirements for tree preservation or solar shade control shall govern within the jurisdiction of the city or county that adopted the ordinance. § 25986. Passive or natural solar system which impacts on adjacent active solar system; action to exempt from provisions of chapter Any person who plans a passive or natural solar heating system or cooling system or heating and cooling system which would impact on an adjacent active solar system may seek equitable relief in a court of competent jurisdiction to exempt such system from the provisions of this chapter. The court may grant such an exemption based on a finding that the passive or natural system would provide a demonstrably greater net energy savings than the active system which would be impacted. JENKINS & HOGIN, LLP A LAW PARTNERSHIP MICHAELJENIQNS CHRIST HooIN MARK D. HENSLEY BRADLEY E. WOHLENBERG KARL H. BERGER GREGG KOVACEVICH JOHN C. Corn ELIZABETH M. CALCIANO LAUREN B. FELDMAN MANHATTAN TOWERS 1230 ROSECRANS AVENUE, SUITE 110 MANHATTAN BEACH, CALIFORNIA 90266 (310) 643-8448 • FAx(310) 643-8441 WWW.LOCALGOVLAW.COM W.LOCALGOVLAW.COM WRITER'S EMAIL ADDRESS: LFELDMAN @LOCALGOV LAW. COM What follows is a summary of the more significant pieces of legislation affecting local governments effective January 1, 2009 (unless otherwise specified). The new laws are organized with reference to affected city departments. Shouldyou desire more specific information on any of the laws discussed herein, please feel free to contact the lawyers of Jenkins & Hogin, LLP. LEGISLATIVE UPDATE 2008 NEW LAWS OF PARTICULAR INTEREST TO BUILDING OFFICIALS AB 2335 (Nakanishi) Building Permits. This bill creates a single, streamlined provision under state law that combines and modifies the existing forms, declarations, acknowledgments and notice to the property owner required in order to obtain a building permit. The new provision can be found at Section 19825 of the Health and Safety Code. SB 1473 (Calderon) Green Building Standards and Building Permit Fee. SB 1473 adds Sections 18930.5, 18931.6, 18931.7, and 18938.3 to the Health and Safety Code. This bill requires the California Building Standards Commission (CBSC) to adopt, approve, codify, update, and publish green building standards for any occupancy for which no state agency has the authority or expertise to propose those standards. This bill also requires each city, county, or city and county to collect a fee on every application for a building permit, assessed at the rate of $4 per $100,000 in valuation, as determined by the local building official. The purpose of the fee is to fund the development of and educational efforts for these green building standards. The bill authorizes the city, county, or city and county to retain up to 10% of the fees collected for related administrative costs and for code enforcement education, including certifications in the voluntary construction inspector certification program. Each local agency must transmit the remainder of the funds to the CBSC.. This state mandated fee puts the city in an awkward position. Prior to imposing a new (or increased) fee, a city must calculate and produce the data indicating the amount of estimated cost JENIITS & HOGIN, LLP January 9, 2009 Page 2 required for the city to provide the service for which the fee is levied and the revenue sources anticipated to provide the service. A fee may not exceed the estimated reasonable cost of providing the service for which the fee is charged. A fee which does exceed such cost may be considered a special tax, which requires approval by two-thirds of voters in an election. Because the amount of the fee is fixed by the state, a city is unable to abide by the procedural requirements for imposing a new fee. After careful review of this situation, this office advises your city to collect the required fee from each applicant for a building permit, retain the appropriate administrative cost as necessary, account for the funds and submit the net amount up to the CBSC as required under the law. Because the City cannot meet the other statutory requirements for imposing a new fee (see Government Code §§ 66016 and 6601),. the City is prohibited from formally adopting the new fee as part of its fee schedule. SB 1608 (Corbett) Equal Access Rights for Disabled Persons.. This bill enacts several measures intended to increase voluntary compliance with existing state and federal laws requiring access to the disabled in places of public accommodation. SB 1608 requires a local agency, beginning July 1, 2010, to employ or retain at least one building inspector who is a certified access specialist and, beginning January 1, 2014, to employ or retain a sufficient number of building .inspectors who are certified access specialists to conduct permitting and plan check services to review for compliance with state construction -related accessibility standards by a place of public accommodation with respect to new construction. The bill authorizes a local agency to charge a permit applicant or member of the public for these services, and would allow a local government to charge or increase inspection fees to the extent necessary to offset the costs of complying with these provisions. This measure also requires that at least eight of the required forty-five continuing education hours for construction inspectors, plans examiners and building officials must relate to disability access requirements. NEW LAWS OF PARTICULAR INTEREST TO CITY CLERKS SB 1124 Local Government Omnibus Act of 2008 SB 1124 repeals the requirement for clerks to keep a reasonable number of copies of adopted uniform ordinances and replaces that language with a requirement that they keep just one copy. SB 1696 (Yee) Disclosure under the Public Records Act. This measure prohibits local (and state) agencies from allowing another party to control disclosure of information that is subject to the Public Records Act (PRA). In addition, the bill specifies that regardless of any contract term to the contrary, a contract for the purpose of jENKINS & HOGIN, LLP January 9, 2009 Page .3 conducting a review, audit, or report between a private entity and a state or local agency, including the University of California (UC), is subject to the same disclosure requirements and exceptions as other public records under the CPRA. For example, a contract term that requires a city to obtain a private auditor's consent before disclosing public records related to the audit does not excuse the city from executing its duties under the PRA. The city, and the auditor or any other private contractor, cannot shield those public records from disclosure by entering into an agreement and the city has a duty to disclose those records. SB 2786 (Salas) Overseas Voters. This bill extends the existing provision allowing special absentee voters (those overseas and called for military service) to return their ballot by fax. The sunset date is extended until January 1, 2011. AB 2607 (Davis) Electronic Filing (**for cities in Los Angeles County). This bill establishes a pilot program which permits Los Angeles, Merced, Orange and Stanislaus counties to permit the electronic filing of a Statement of Economic Interest in accordance with regulations prepared by the FPPC. NEW LAWS OF PARTICULAR INTEREST TO CITY MANAGERS AND ELECTED OFFICIALS AB 2092 (De La Torre) Discharge of Criminal Accusations. Under existing law, a court may dismiss accusations or information against a defendant after successful completion of probation under specified circumstances. Other existing law provides that a conviction for certain offenses disqualifies a person from holding certain public offices. This bill provides that dismissal of an accusation or information underlying a conviction does not permit a person prohibited from holding public office as a result of that conviction to hold public office. This provision can be found at Section 1203.4 of the Penal Code. AB 2801.(Carter) Conflict of Interest and Settlement Agreements. Government Code section 1090 prohibits a public body from entering into an agreement in which a member of the body has a financial interest. One exception to this rule is where the member's interest is deemed to be "remote." This bill adds that a remote interest includes that of a parry to litigation involving the body of which the interested officer is a member in connection with a settlement agreement in which the body is represented by legal counsel, a court fmds that the settlement agreement serves the public interest, and the interested member has recused himself or herself from all participation, direct or indirect, in the making of the agreement on behalf of the body. JENKINNS & HOGIN, LLP January 9, 2009 Page 4 AB 3030 (Brownley) Local Publicly Owned Water Utility. This bill adds Government Code § 53756 to the 218 Omnibus Implementation Act and authorizes an agency providing water, sewer, or refuse collection service to adopt a schedule of fees or charges for automatic adjustments that pass through increases in wholesalecharges for water or adjustments for inflation, if prescribed conditions are met. For example, the schedule of fees or charges cannot exceed a period of 5 years and the schedule must be adopted pursuant to existing law providing notice, protest, and hearingprocedures for the levying of new or increased fees and charges by local government agencies. SB 1732 (Romero) The Brown Act. This bill serves to legislatively overrule a statement made by the court in Wolf v. City of Fremont and re -affirms the conventional interpretation of the Brown Act's prohibition of serial meetings. Prior to this bill, the Brown Act defined an unlawful serial meeting as any communication outside of a meeting employed by a majority of a legislative body to develop a collective concurrence as to action to be taken on a matter of city business. In the Fremont case, the court held that this prohibition on serial meetings was .violated only if the majority succeeds in developing a collective concurrence. Prior to that holding, the conventional view was that the prohibition is violated if a majority merely attempt to develop a collective concurrence outside a meeting. SB 1732 reinstates this conventional view by modifmg the language of the serial meeting prohibition to prohibit a majority of members of a legislative body of a local agency "from using, outside a meeting, a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is required by the Brown Act to be conducted in public." By eliminating the prior language regarding development of a "collective concurrence," the new language makes it clear that an unlawful serial meeting occurs as long as a majority of a legislative body communicate about city business outside a properly convened meeting. The bill also clarifies that the Brown Act does not prevent an employee or official of a local agency, from engaging in separate conversations or communications, with members of a legislative body in order to answer. questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency, so long as that person does not communicate to members of the legislative body the comments or position of any other member or members of the body. This provision also reiterates our existing interpretations of the Brown Act that staff briefings are not unlawful as long as the staff member does not become an intermediary. ANIONS & HOGIN, LLP January 9, 2009 Page 5 NEW LAWS OF PARTICULAR INTEREST TO ENVIRONMENTAL SERVICES AB 1451( Leno) Property Tax Exclusion for Solar Energy Systems. This bill extends from January 1, 2010 to January 1, 2017, the sunset date for the existing property tax exclusion for construction or addition of active solar energy systems. AB 1451 authorizes an exemption to be claimed by the initial purchaser of a new singe -family home where a builder has installed an active solar energy system during construction. The amount of the exemption will be determined by the assessor to reflect the value attributable to the system, but it is anticipated that the city would likely experience a reduction in revenue of approximately $48 for each new single family home claiming this exemption. Upon resale, the home will be assessed at full value. SB 1016 (Wiggins) Solid Waste Diversion Compliance Per Capita. This bill shifts the focus of the California Integrated Waste Management Board's waste diversion requirements from 50 percent diversion to 50 percent disposal reduction because the waste disposal based system is perceived to be a more accurate, simpler and timelier approach. Under this bill, the diversion requirement would be measured in terms of per -capita disposal, or total annual disposal divided bypopulation, for determinations of compliance for reporting year 2007 forward. The measureprovides that every jurisdiction found to comply with the 50% diversion requirement would be subject to review every four years and those jurisdictions not in compliance will be reviewed every two years. SB 1399 (Simitian) Solar Shading. Solar energy system installation has been a popular topic this year at the planning counters and has raised many interesting land use issues. Issues surrounding shade from vegetation on neighboring properties is addressed in this bill. Under existing law, the Solar Shade Control Act prohibits the placement or growth of trees or shrubs subsequent to the installation of a solar energy system. This bill exempts trees or shrubs from the requirement that they be cut down if the trees or shrubs are in place at the time the system is installed. This rule can be found at Section 25984 of the Public Resources Code. NEW LAWS OF PARTICULAR INTEREST TO FINANCE AB 1451(Leno) Property Tax Exclusion for Solar Energy Systems. See New Laws of Particular Interest to Environmental Services above. JENKINS & HOGIN, LLP January 9, 2009 Page 6 SB 1407 (Perata) Court Facilities Financing. SB 1407 allows the issuance of up to $5 billion in lease -revenue bonds to finance the construction of critical needs courthouse construction projects, and supports the debt service for the bonds by raising specified criminal and civil fees and fines. Among many increased fees, this bill increases an existing Court Construction Penalty on parking citations from $1.50 to $4.50. This is an existing penalty that each jurisdiction should already be familiar with imposing on. parking violations; the court facility construction penalty has been in existence since 2003. Local agencies that collect and process their own parking violations are required to deposit the Court Construction Penalties collected every month with the County Treasurer, i.e. $4.50 for each parking violation that is not filed with the court and processed locally. Then the County Treasurer submits the funds to the state (minus an administration fee). This office will be sending out additional information concerning the procedure for properly imposing and collecting this penalty. Please contact this office with any specific questions or issues. NEW LAWS OF PARTICULAR INTEREST TO POLICE, PARKING, CODE AND ANIMAL ENFORCEMENT AB 190 (Bass) Veterans Parking. Under existing law, certain qualified veterans are eligible for special license plates honoring military service, such as a Purple Heart. This bill allows veterans whose vehicles display the special license plates to park without charge in metered parking spaces, subject to approval by the local legislative body. This provision can be found at Section 22511.3 to the Vehicle Code. AB 602 (DeVore) Parking Violations. This bill requires that any contract between a local government and a private entity for the processing of notices of parking violations or notices of delinquent parking violations be based on either a fixed monthly rate or on the number of notices processed if the contract includes the provision of qualified examiners or administrative hearing providers and would prohibit a contract from including incentives for the processing entity based on the number of notices upheld or denied or the amount of fines collected. AB 844 (Berryhill) Junk Dealers and Recyclers. This bill requires junk dealers and recyclers to comply with additional record keeping requirements and payment restrictions when buying nonferrous materials such as copper, stainless steel and aluminum. The bill does primarily preempt local regulation related to junk f ENIITS & HOGIN, LLP January 9, 2009 Page 7 dealer or recycler transactions involving nonferrous material. However, a city may adopt an ordinance relating to the subject matter if the ordinance is passed by a two-thirds vote of the City Council and it can be demonstrated by clear and convincing evidence that the ordinance is both necessary and addresses a unique problem within and specific to the jurisdiction. SB 28 (Simitian) Texting While Driving. While drivers are currently prohibited from talking on cell phones while driving a vehicle, this bill creates a similar prohibition against using an electronic wireless communications device to write, send or read a text -based communication while driving a motor vehicle. SB 447 (Maldonado) Junk Dealers. This bill requires junk dealers and recyclers to report to the Chief of Police (or County Sheriff) personal information, including name, license number and address of the seller of all tangible person property taken in for consignment, pawn, auction or sale. This bill brings the reporting requirements for junk dealers and recyclers up to the same level as those required for secondhand dealers and coin dealers. AB 2588 (Calderon) Commercial Vehicle Vending. This bill clarifies that the California Retail Food Code does not prohibit a local governing body from adopting requirements for public health and safety that regulate the type, time and manner of vending from a vehicle. NEW LAWS OF PARTICULAR INTEREST TO PERSONNEL AB 2001 (Swanson) Whistleblower Hotlines. This bill authorizes a city or county or city and county, auditor or controller to maintain a local whistleblower hotline to receive calls from persons who have information regarding possible violations of local government employees of state, federal or local laws. SB 1123 (Wiggins) Public Employee Benefits. This bill requires the Legislature and local legislative bodies to secure the services of an actuary to provide a statement of the actuarial impact upon future costs, including normal cost and any additional accrued liability, before authorizing changes in public retirement plan benefits or other postemployment benefits. This requirement does not apply to an annual increase in a premium that does not exceed three percent of a contract of insurance, or a change in postemployment JENKINS & HOGIN, LLP January 9, 2009 - Page 8 benefits, other than pension benefits, mandated by the state or federal government or made by an insurance carrier in connection with the renewal of a contract of insurance. In addition, this measure requires that local legislative bodies provide a two-week public notice requirement prior to the adoption of any change in postemployment benefits. The bill also requires that an actuary be present at the public meeting when the adoption of a benefit change is being considered, if the future cost of the changes is greater than 0.5%. Lastly, adoption of any retirement or postemployment benefit may not be placed on the consent calendar. These provisions can be found in Government Code Sections 7507 and 7507.2. SB 2028 (Solorio) Hiring Peace Officers. This measure allows the collection of non -medical and non -psychological information of peace officers, in accordance with a thorough background investigation required of all peace officers, to be deferred until after a conditional offer of employment is issued. NEW LAWS OF PARTICULAR INTEREST TO PLANNING, COMMUNITY DEVELOPMENT AND HOUSING AB 242 (Blakeslee) Regional Housing Needs Assessment after Annexation. Existing law requires, during the period between adoption of a final regional housing needs allocation and the due date of the housing element update, that the council of governments (COG), or the Department of Housing and Community Development (HCD), whichever assigned the county's share, reduce the share of regional housing needs of a county if certain conditions are met. If an annexation of unincorporated land to a city occurs after the final allocation has been made, the city and county are authorized to reach a mutually acceptable agreement on a revised determination of regional housing needs, to reallocate a portion of the affected county's share of regional housing needs to the annexing city, and report the revision to the COG and Department of Housing and Community Development (HCD), or just HCD for areas with no COG. This bill amends Section 65584.07 of the Government Code by revising the process for making that transfer of the county's regional housing needs allocation to the city. AB 1358 (Leno) Circulation Element and Transportation. Existing law requires the legislative body of each countyand city to adopt a comprehensive, long-term general plan for the physical development of the county or city with specified elements, including a circulation element consisting of the general location and extent of existing and proposed major thoroughfares, transportation routes, terminals, any military airports and JENKINS & HOGIN, LLP January 9, 2009 Page 9 ports, and other local public utilities and facilities, all correlated with the land use element of the plan. AB 1358 requires that after January 1, 2011, any substantive revision of the circulation element of the general plan must include a plan for a balanced, multimodal transportation network that meets the needs of all users of streets, roads, and highways, including motorists, pedestrians, bicyclists, children, persons with disabilities, seniors, movers of commercial goods, and users of public transportation, in a manner that is suitable to the rural, suburban, or urban context of the general plan. The Governor's Office of Planning and Research will prepare guidelines for these changes by 2014. AB 2016 The 2008 Housing Omnibus Measure. This bill makes a number of technical amendments to the various housing laws. For example, the bill clarifies how regional housing needs assessment numbers are reallocated when a city or county successfully appeals the allocation. This measure also adds multifamily manufactured homes to the list of structures covered under the Mobilehomes-Manufactured Housing Act (IVIMHA). Further, any person that fails to file an application for an alteration or conversion of the structural, fire safety, plumbing, heat -producing, or electrical systems and installations or equipment of a manufactured home, mobilehome, multifamily manufactured home, special purpose commercial modular, or commercial modular (i.e. the structures covered under the MMHA), must pay double the application fees, and for subsequent failures to file within a 5 -year period, pay 10 times the application fee. AB 2069 (Jones) Residential Development. After adoption of a city's housing element, it is critical that sites identified as meeting the regional housing needs are not lost to non -housing development or "down -zoned" to a lower density that precludes their use for affordable housing development. In order to identify adequate sites as potential affordable housing site, an increasing number of jurisdictions are relying on an approach known as "double -zoning." Instead of identifying high -density, residentially zoned land as potential sites for affordable housing, cities and counties have been relying on sites that are primarily zoned for commercial development, but on which the local government will also allow residential development. The no -net -loss zoning law protects the supply of land identified as available for affordable housing by prohibiting a city orcounty fromdownzoning a parcel that has been identified in its housing element, unless the city replaces the parcel with a new parcel sufficient to accommodate the same number of units, or makes- certain findings. Under existing law, it is not clear that approval of a commercial use on a double -zoned site is actually considered reduction in residential density that would trigger the requirement that the city replace that parcel. This bill makes clear that the no -net loss zoning law specifically covers properties that are (1) indentified in the housing element as meeting the regional housing needs, and (2) zoned for both residential JENKINS & HOG1N, LLP January 9, 2009 Page 10 and nonresidential uses. For example, residential properties are often zoned to also allow churches and similar places of worship. If the City were to approve an application for a new church on a residential parcel that was identified in the housing element as meeting the regional housing needs, the city would most likely have to replace that parcel with a new parcel sufficient to accommodate the same number of units. Please contact the City Attorney to discuss application of this bill upon receipt of any application for a non-residential use on a double - zoned property. AB 2280 (Saldana) Density Bonus Revisions. AB 2280 makes some minor, yet substantial amendments to the state's density bonus law. The changes are as follows: - The bill clarifies that the term "total units" or "total dwelling units" for a project refers to the total number of units used to calculate the density bonus and although contrary to how it sounds, does not include the units added by the density bonus. - This bill clarifies that the twenty percent bonus for senior housing must be based on the total number of senior affordable units, not the total number of units in the development. - The bill also clarifies that when the allowable density in the zoning ordinance and the general plan are inconsistent, the general plan will govern. - The bill provides that the city's share of affordable units often recaptured as cash when the owner sells the unit before the affordability period expires may be reinvested within five years, as opposed to the original three year requirement. - Under existing law, the city must grant a requested concession or incentive, unless it can make the finding that (1) the concession/incentive is not required to provide for affordable housing cost, or (2) the concession/incentive would have a specific adverse impact on public heath or safety, the environment, a state registered cultural resource and there is no feasible method of mitigating that impact, or now (3) that the concession would be contrary to state or federal law. - A concession or incentive is defined as a reduction in development standards or modification of zoning code requirements, such as setbacks and parking requirements; approval of mixed use zoning; or any other regulatory incentives or concessions proposed by the developer or the city, county, or city and county that result in ident able, financially sufficient, and actual cost reductions. As mentioned, one subset or category of incentive/concession is the modification or JENIC NS & HOGIN, LLP January 9, 2009 Page 11 waiver of the development standard. This bill makes two interesting and somewhat substantial changes regarding application of development standards to density bonus projects. ■ First, the bill deletes the requirement that an applicant for a waiver or reduction of development standards show that the waiver or modification is necessary to make proposed housing units economically feasible. In the past, this has been one of the best tools for preventing developers from making outrageous incentive/concession requests —in other words, the city was not required to grant a concession unless the developer could proved that the modification was necessary to make the housing units economically feasible. This requirement has now been eliminated. It appears, although it is not expressly stated, that this "minor" amendment actually shifts the burden from the developer to the city to prove whether the incentive or concession is required to provide for the affordable housing costs. • Another clarification regarding modifications of development standards is the new language stating that the city cannot apply a development standard that would physically preclude construction of the proposed project. This amendment is also rather ambiguous and difficult to interpret because in reality, most construction is physically possible; the deciding factor is always the construction cost. Upon receipt of an application for a density bonus project, it is important that you contact the City Attorney immediately to discuss this issue of physical preclusion of requested incentives and concessions. • Also, the bill states that the proposal for a waiver or modification of a development standard that would physically preclude construction of the project shall not be considered one of the incentives of concessions to which the applicant is entitled for the project. - These amendments greatly reduce cities' ability to regulate proposed density bonuses and will likely require amendments to your city's density bonus ordinance. Please contact your City Attorney to discuss making the appropriate changes. Also, it is important that the density bonus specifications for the city are included on the list of project specifications required before a project can be deemed complete. jENICINS & HOGIN, LLP January 9, 2009 Page 12 AB 2494 (Caballero) Housing Related Parks Program. This bill would establish the Housing -Related Parks Program under the administration of the Department of Housing and Community Development. The bill would require the department to use funds, upon appropriation by the Legislature, to provide grants for the creation, development, or rehabilitation of park and recreation facilities, to cities, counties, and cities and counties that are critically underserved by parks and recreation facilities, have adopted a housing element approved by HCD and submitted a progress report within the last year and have issued building permits for newly constructed affordable housing units (very -low and income). AB 3005 (Jones) Vehicle Impact Fees. This bill requires a local agency to reduce vehicle impact fees for mitigating vehicular traffic impacts of housing development projects that meet the following criteria. (1) The housing development must be located within a half -mile of a transit station via a barrier -free, walkable path.1 (2) The development must be located within one half -mile of retail -convenience uses (one of which must sell food). The bill does not specify whether or not a comer convenience market would qualify as a store that sells food for purposes of this bill. (3) The development must only include a minimum number of parking spaces. The bill exempts from this requirement through January 1, 2011, a housing development in an area having a capital improvement plan for which traffic mitigation fees are collected. Under the new law found at Government Code section 66005.1, a local agency may charge an impact fee in proportion to the estimated rate of automobile trip generation associated with a housing development if the housing development does not meet the characteristics stated above. Please work in conjunction with the City Attorney to develop these reduced traffic impact fees and to determine how this bill should be applied to actual development projects in your city. SB 375 (Steinberg) Transportation Planning. In 2006, the Legislature adopted AB 32, The Global Warming Solutions Act of 2006, which requires the state of California to reduce greenhouse gas (GHG) emissions to 1990 levels by 2020. SB 375 provides that without improved land use and transportation policy, California will not be able to achieve these goals. SB 375 was accordingly drafted with the following intentions: (1) to use the regional transportation planning process to help meet 1990 GHG levels, 1 A "transit station" means a rail or light -rail station, ferry terminal, bus hub, or bus transfer station. A "bus hub" means an intersection of three or more bus routes, with a minimum route headway of 10 minutes during peak hours. A "bus transfer station" means an arrival, departure, or transfer point for the area's intercity, intraregional, or interregional bus service having permanent investment in multiple bus docking facilities, ticketing services, and passenger shelters. The bill does not specify what constitutes a barrier -free, walkable path. JEN INS & HOGIN, LLP January 9, 2009 Page 13 (2) to use CEQA streamlining as an incentive to encourage residential projects which help meet the GHG emission goals, and (3) to coordinate the regional housing needs allocation process with the regional transportation planning process. With these three goals in mind, SB 375 was drafted and debated and redrafted and was finally signed into law at the end of September 2008. According to the authors of the legislative analysis on SB 375, the bill simply does the following: (1) requires the Air Resources Board to provide each region with greenhouse gas emission reduction targets for the automobile and light truck sector; (2) requires a regional transportation plan to include a Sustainable Communities Strategy designed to achieve the targets for greenhouse gas emission reduction; (3) requires the California Transportation Commission to maintain guidelines for travel demand models; (4) requires cities and counties, in general, to revise their housing elements every eight years in conjunction with the regional transportation plan and complete any necessary rezonings within a specific time period; and (5) relaxes CEQA requirements for housing developments that are consistent with a Sustainable Communities Strategy. The actual implementation of these five actions is incredibly complex and will require a tremendous amount of analysis and discussion among all of the California cities and interested parties and agencies. Since implementation of SB 375 will follow the housing element and regional housing needs allocation schedules, compliance with this bill will not be required for anywhere between five and eight years depending on the specific situation of each city. In order to assist in the complicated implementation process for this bill, this office will provide a supplemental letter explaining the full impact of the bill and exactly how each city can comply with its provisions. Until that time, please contact your City Attorney with any specific questions or issues related to SB 375. SB 731 (Oropeza) State Licensing of Massage Therapy This bill, commencing September 1, 2009, creates a uniform, statewide process for certification and licensing of massage therapists. The bill also creates the Massage Therapy Organization (MTO), a nonprofit organization charged with these tasks. The bill requires applicants for certification to be 18 years of age or older, to meet specified educational criteria, to provide to the organization and update certain information, and to provide fingerprints for a criminal background check with the Department of Justice. The bill allows the MTO to take disciplinary action against certificate holders and provides fro suspension and revocation for massage licenses. The most relevant part of this bill is that it preempts any local ordinance that requires a license, permit or other authorization for an individual to practice massage therapy in that jurisdiction and any existing ordinance cannot be enforced against a state certified massage therapist. Many JENKnvS & HOGIN, LLP January 9, 2009 Page 14. cities have local licensing and permit requirements for massage therapists within their business license and/or zoning ordinances. We advise each city to review existing massage parlor ordinances and determine whether it is necessary to amend them to remove any local licensing or permit requirements for individuals that are inconsistent with the new law before September 2009. This bill does not preempt local ordinances governing zoning, business licensing, and reasonable health and safety requirements for massage establishments or businesses and from regulating massage therapists not licensed by the MTO. SB 1137 (Perata) Foreclosure Procedures and Vacant Residential Properties. SB 1137 adds a new Section 2929.3 to the California Civil Code, providing public agencies with an additional code enforcement tool with regard to vacant residential properties that have been purchased through foreclosure. The new law allows public agencies to impose civil penalties of up to $1,000/day after giving notice and an opportunity to cure, for nuisance conditions (in addition to ordering the abatement of the conditions). The notice and hearing requirements are very similar to the requirements that we currently follow when conducting a nuisance abatement. So, when you encounter a vacant residential property with nuisance conditions, please check to see if the current owner has acquired the property by foreclosure (for example, a bank owned property obtained through a foreclosure process); this office can help with ascertaining ownership.. If so, we can add this new $1,000 per day civil penalty to our arsenal of remedies. SB 1185 (Lowenthal) Time Extension on Maps. On July 15, 2008,. Senate Bill 1185 went into effect and automatically extended the expiration date on existing. tentative maps, vesting tentative maps and parcel maps for twelve (12) additional months past their original expiration dates. This means that all tentative maps that would have expired between July 15, 2008, and January 1, 2011, are automatically extended by twelve (12) months. The new extensions provided by SB 1185 are in addition to any extensions already provided for in the Subdivision Map Act. The Subdivision Map Act also allows subdividers to apply to the local agency to further extend the time at which a tentative map will expire for a period not to exceed five (5) years. SB 1185 gives local governments the discretion to extend the life of the tentative map for a period not to exceed six (6) years. SB 1185 also extends by twelve (12) months any legislative, administrative or other approval by any state agency that pertains to a development project associated with a tentative map or a vesting tentative map that will expire between July 15, 2008, and January 1, 2011. Many cities have inquired as to whether this means that all of the associated discretionary development permits and approvals (CUPS, Development Permits, etc) that correspond to the same project as the map are also automatically extended under this bill. The answer to that question is no; only JENIQNS & HOGIN, LLP January 9, 2009 Page 15 other approvals made by a state agency that pertain to the map are automatically extended, such as permits issued bythe California Coastal Commission, Department of Fish and Game or the Regional Water Quality Control Board, . The City retains, the discretion to extend, or deny a request for extension, on the other discretionary approvals associated with the project. SB 1399 (Simitian) Solar Shading. See New laws of Particular Interest to Environmental Services above. NEW LAWS OF PARTICULAR INTEREST TO PUBLIC WORKS AB 642 (Wolk) Design Build. Through January 1, 2011, existing law authorizes specified cities, with the approval of the appropriate city council, to enter into design -build contracts, in accordance with specified provisions. This bill authorizes any city, with the approval of the appropriate city council, to enter into design -build contracts on building construction projects in the city in excess of one million dollars ($1,000,000), in accordance with specified provisions and extends these provisions until January 1, 2016. This bill also includes special provisions for operators of wastewater facilities, solid waste management facilities, or water recycling facilities, to use alternate bidding procedures for specified projects in excess of two million five hundred thousand dollars ($2,500,000). However, in order to qualify, these entities must first apply to the Governor's Office of Planning and Research. This bill is effective until January 1, 2020 and these provisions can be found at Section 20175.2 of, and Article 5.5 (commencing with Section 20193) of the Public Contract Code. AB 2537 (Furutani) Public Works Volunteers. Pursuant to existing law, all workers employed on public works must be paid not less than the general prevailing rate of per diem wages for work, except for public works projects of $1,000 or less, or except for any work performed, on or after January 1, 2002, and until January 1, 2009, by a volunteer, a volunteer coordinator, or by members of the California Conservation Corps or of certified Community Conservation Corps. This measure extends the sunset date for volunteers to be exempt from the prevailing wage requirement until January 1, 2012.