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259, Expand garage to a 5-car garag, Staff ReportsTO: FROM: DATE: RE: ISSUES MEMORANDUM MAYOR AND MEMBERS OF THE CITY COUNCIL, CITY OF ROLLING HILLS CITY ATTORNEY JULY 6, 1981 SPORTS COURTS (1) Does the City's Zoning Ordinance regulate the construction of sports courts and fences in front and side yards, and if so, in what manner? (2) On what basis may a variance be granted under the Zoning Ordinance? CONCLUSION (1) The Zoning Ordinance requires issuance of a Conditional Use Permit for construction of sports courts. Further, fences are not permitted in front and side yards without a variance. (2) A variance may be granted only upon a showing of special circumstances pertaining to property, and not to the occupants of the property. DISCUSSION (A) ZONING ORDINANCE PROVISIONS The following is an analysis of the Zoning Ordinance provisions regulating the construction of both sports courts and surrounding fences. MJ43-22A • • 1. Sports courts. Section 17.16.010 of the Zoning Ordinance enumerates the uses permitted in the RA-S (Residential Agriculture -Suburban) zoned district. The uses specifically listed in that section are exclusive in nature, and Section 17.12.060 provides that unless specificially permitted, all other uses are prohibited. Paragraphs A through C of Section 17.16.010 enumerate uses which are automatically permitted in the zone; sports courts are not included. No other uses are automatically permitted in the RA-S zone. Paragraph D of Section 17.16.010, however, allows certain additional uses in the zone subject to issuance of a Conditional Use Permit (CUP). For example, paragraphs D(1) and (2) allow for schools, parks, libraries, public utility facilities and similar nonresidential uses. Paragraph D(3) permits "noncommercial residential and/or recreational uses" under a CUP. Until the latter part of 1980, subparagraph (a) of paragraph D(3) listed tennis and paddle tennis courts as examples of non-commercial recreational uses. The listing of these two court uses was not exclusive, however, inasmuch as they were preceded by the phrase: "Noncommercial resident- ial and/or recreational uses, including." The word "including" clearly signifies that tennis and paddle tennis courts were meant to serve as an example of the types of recreational uses permitted under a CUP. MJ43-23A On November 24, 1980, Ordinance No. 182 was adopted which had the effect of amending paragraph D(3) by adding thereto specific guidelines for issuance of a CUP for tennis courts, paddle tennis courts and "any other fenced, paved area used for recreational purposes." These guidelines govern all CUPs issued for sports courts subsequent to the effective date of the ordinance. The applicant in the case at hand applied for a variance to allow a fenced, paved area in his front yard prior to the effective date of Ordinance No. 182. He did not apply for a CUP, as it was felt that prior to Ordinance No. 182, a CUP was not required for a sports court, and the Planning Commission apparently felt that the new Ordinance should not be applied to the applicant because the application pre -dated its effective date. On the basis of the foregoing facts and ordinances we conclude as follows: a. Prior to the enactment of Ordinance No. 182, paragraph D(3) required a CUP for "recreational uses" in the RA-S zone. The adoption of Ordinance No. 182 did not impose a new requirement, but merely added guidelines to an existing CUP requirement. In our opinion, the language of Paragraph D(3) prior to the recent amendment was sufficiently broad to include all categories of sports courts within its CUP MJ43-24A • • requirement. All recreational uses incident to a single-family home with the exception of the uses listed under Section 3.01(A) would require a CUP. Sports courts are clearly "recreational uses" within the meaning of the introductory sentence of Pargraph D(3). Moreover, the uses listed in subparagraph (a) are exemplary only of the general type of uses allowed under a CUP; a sports court is a generic category which clearly includes tennis courts, paddle tennis courts and all other courts. Under this view, Ordinance No. 182 merely served to elaborate upon an existing ordinance requirement. b. Notwithstanding the requirement of Paragraph D(3) that a CUP be issued for "recreational uses," the Council may have in the past adopted an interpretation of that paragraph which excluded from the meaning of "recreational use" the type of basketball court proposed by the applicant. Such a possibility exists because the phrase "recreational use" is not defined anywhere in the Zoning Ordinance. If the Council's past interpretation has been not to require a CUP for such uses, none should be required in this case. c. If, however, the past practice of the Council has been to require a CUP for basketball courts on front driveway areas, an application should be filed therefor. Moreover, the present requirements enacted into law by Ordinance No. 182 pertaining to "fenced, paved areas" would apply, unless waived by the Council because of previous advice given the applicant by the City. -4- MJ43-25A d. It should be noted that Ordinance No. 182 requires that any "fenced, paved area" used for recreational purposes proposed after its effective date be subject to the CUP requirement. 2. Fences in yards. A fence is defined in Section 1.25 of the Zoning Ordinance as: "Anything constructed or erected and the use of which requires more or less permanent location on the ground or attachment to something having a permanent location on the ground, but not including walls and fences nor other improvements of a minor character." Under this definition, only a fence or wall which is of "a minor character" is excluded from the definition. An eight -foot high chain -link fence could not be characterized as minor. Fences as well as other structures may not be constructed in any "yard", as that term is defined in Section 1.28: "An open space other than a court, on a lot unoccupied and unobstructed from the ground upward, except as otherwise provided in this ordinance." The only provision which allows for fences or walls in yards is Section 5.03, which establishes the maximum height for boundary fences. Other than boundary fences, no other fence is permitted in a yard without a variance. MJ43-26A • • (B) GROUNDS FOR ISSUANCE OF VARIANCES The grant of variances from the strict terms of a zoning ordinance is authorized by state law. California Government Code Section 65906 states in pertinent part: "Variances from the terms of the zoning ordinances shall be granted only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification." Any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is situated. A variance shall not be granted for a parcel of property which authorizes a use or activity which is not otherwise expressly authorized by the zone regulation governing the parcel of property. The provisions of this section shall not apply to conditional use permits." As this section states, the "special circumstances" which justify a variance must be those which are "applicable to the property" and not to persons using the property. The City's Zoning Ordinance also authorizes variances, in language which substantially tracks that of state law. Sections 6.01 - 6.03 state: "Section 6.01: Planning Commission May Grant Variances. When practical difficulties, unnecessary hardships or results inconsistent with the general purpose of this Ordinance result, through the strict and literal interpretation and enforcement of the provisions hereof, the Planning Commission MJ43-27A • • shall have the authority, as an administrative or judicial act, subject to the provisions of this Article, to grant, upon such conditions as it may determine, such variance from the provisions of this Ordinance as may be in harmony with its general purpose and intent, so that the spirit of this Ordinance shall be observed, public safety and welfare secured, and substantial justice done." "Section 6.02: Purpose of Variance. The sole purpose of any variance shall be to prevent discrim ination, and no variance shall be granted which would have the effect of granting a special privilege not shared by other property in the same vicinity and zone". "Section 6.03: Required Showing for Variances. Before any variance may be granted, it shall be shown: "A. That there are exceptional or extraordinary circumstances or conditions applicable to the property or to the intended use that does not apply generally to the other property or class of use in the same vicinity and'zone". "B. That, such variance is necessary for the preservation and enjoyment of a substantial property right possessed by other property in the same vicinity and zone, but which is denied to the property in question." "C. That the granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvements in such vicinity and zone in which the property is located." To the extent that the phrase "intended use" in Section 6.03 is broadly interpreted to mean any use that the owner wishes to make of his land, the ordinance is in conflict with the statutory authorization and is void. A variance is a permit issued to a landowner to construct a structure not otherwise permitted under the zoning ordinance regulations. The statutory justification for a variance is that the owner would otherwise suffer MJ43-28A • • unique hardship under the general zoning regulations because his particular parcel is different from the others to which the regulation applies due to size, shape, topography, or location. Variances sanction deviations from regulations applicable to such physical standards as lot sizes, floor area ratios for buildings, and off-street parking requirements. The concept is that the basic zoning provision is not being changed but that the property owner is allowed to use his property in a manner basically consistent with the established regulations with such minor variations as will place him in parity with other property owners in the same zone. Variances are, in effect, constitutional safety valves to permit administrative adjustments when application of a general regulation would be confiscatory or produce unique hardship. See, Hamilton v. Board of Supervisors, 269 Cal.App. 2d. 64, 66 (1969). The hardship facing the owner must derive from a unique circumstance of the property, not of the owner. "Thus, when the zoning restrictions merely prevent the applicant from using his land as he wishes, and when the zoning restrictions apply equally to land similarly situated and classified, the applicant is not entitled to a variance on the grounds of hardship." "When exceptions are granted on the basis of personal feelings rather than upon the basis of standards fixed by statute or ordinance, the administration of the ordinance becomes arbitrary and the comprehensive nature of zoning is destroyed. 50 California Law Rev. 101, 110-111 (1962). MJ43-29A • • In this case, there may be unique characteristics of the owner's property which justify placement of a paved area with fencing in the front yard. The subject property must, however, differ substantially and in relevant aspects from other properties in the same zone. Grant of a variance would be appropriate should such differences deprive the owner of uses which are enjoyed by owners of property similarly situated. These, however, are the exclusive grounds upon which the Council may grant a variance. 9 June 19, 1981 MEMORANDUM TO: MAYOR AND MEMBERS OF CITY COUNCIL, CITY OF ROLLING HILLS FROM: PATRICK C. COUGHLAN RE: CONDITIONS TO ASSURE REMOVAL OF SPORTS COURT QUESTION PRESENTED: What conditions can the City impose in conjunction with the grant of a variance that will assure removal of the sports court fence upon sale or transfer of title of the residence in question? CONCLUSION: There are a number of alternatives available to the City in order to assure removal of the sports court fencing upon sale or transfer of the property in possession, of the variance. There is, however, no approach which can guarantee the City that litigation will not result if it attempts to enforce the conditions. The best protection available to the City would be to require that the applicant deposit with the City sufficient funds at this time to completely cover the City's costs of removing the fence if it were forced to take such action and sufficient additional funds to help defer any City Attorney's fees if litigation results from the City's attempt to enforce the removal of the fence. The funds received could be placed in an account, the interest from which could be paid directly to the applicant. In addition to putting up such funds ($2,000.00 to $5,000.00) we would recommend that the applicant enter into a recordable covenant with the City which fully describes the requirement to remove the fence and grants to the City an easement for the purpose of entering the subject property to remove the fence. The agreement should also relieve the City of any liability whatsoever for damages incurred to the MEMO TO: MAYOR AND MEMBERS OF CITY COUNCIL Page'2 June 19, 1981 property in the process of removing the fence. In addition, the recordable covenant should state that if litigation results from the City's attempt to enforce the covenant that the prevailing party shall be entitled to receive reasonable attorney's fees from the losing party. Less protective of the City would be to merely require that the owner enter into an agreement with the City to remove the fence upon sale of the property. We would recommend at the very least that the agreement be recorded so that any purchaser of the property is given adequate notice of the fact that the sports court fencing can be removed by the City. ALTERNATIVE APPROACH, It would be possible in our judgment to modify the City's Zoning Ordinance to specifically provide for a special per- mit which could be granted to individuals meeting a definition of "handicapped" which could allow reduced setback, land, coverage and other relevant requirements when facilities relating to the handicap are being installed on the premises. Such an ordinance should provide that the City Council may, impose reasonable conditions on a permit, including one which would assure that nonconforming structures can and will, in the discretion of the City Council, be removed upon the handicapped person's moving out of the subject premises. This approach would require an amendment of the City Zoning Ordinance in compliance with state law procedures. We feel that this alternative suggestion provides an innovative approach to helping individuals who are handicapped live a more normal life. The City would, if it decided to go forward with such an amendment of the Zoning Ordinance, be setting an example for the rest of the state and country since we are not aware of similar ordinance provisions in any other municipality. PCC:mm June 19, 1981 • MEMORANDUM TO: MAYOR AND MEMBERS OF CITY COUNCIL, CITY OF ROLLING HILLS FROM: PATRICK C. COUGHLAN RE: CONDITIONS TO ASSURE REMOVAL OF SPORTS COURT QUESTION PRESENTED: What conditions can the City impose in conjunction with the grant of a variance that will assure removal of the sports court fence upon sale or transfer of title of the residence in question? CONCLUSION: There are a number of alternatives available to the City in order to assure removal of the sports court fencing upon sale or transfer of the property in possession of the variance. There is, however, no approach which can guarantee the City that litigation will not result if it attempts to enforce the conditions. The best protection available to the City would be to require that the applicant deposit with the City sufficient funds at this time to completely cover the City's costs of removing the fence if it were forced to take such action and sufficient additional funds to help defer any City Attorney's fees if litigation results from the City's attempt to enforce the removal of the fence. The funds received could be placed in an account, the interest from which could be paid directly to the applicant. In addition to putting up such funds ($2,000.00 to $5,000.00) we would recommend that the applicant enter into a recordable covenant with the City which fully describes the requirement to remove the fence and grants to the City an easement for the purpose of entering the subject property to remove the fence. The agreement should also relieve the City of any liability whatsoever for damages incurred to the MEMO TO: MAYOR AND MEMBERS OF CITY COUNCIL Page 2 June 19,.1981 property in the process of removing the fence. In addition, the recordable covenant should state that if litigation results from the City's attempt to enforce the covenant that the prevailing party shall be entitled to receive reasonable attorney's fees from the losing party. Less protective of the City would be to merely require that the owner enter into an agreement with the City to remove the fence upon sale of the property. We would recommend at the very least that the agreement be recorded so that any purchaser of the property is given adequate notice of the fact that the sports court fencing can be removed by the City. ALTERNATIVE APPROACH It would be possible in our judgment to modify the City's Zoning Ordinance to specifically provide for a special per- (pn it which could be granted to individuals meeting a definition of "handicapped" which could allow reduced setback, land coverage and other relevant requirements when facilities relating to the handicap are being installed on the premises. Such an ordinance should provide that the City Council may impose reasonable conditions on a permit, including one which would assure that nonconforming structures can and will, in the discretion of the. City Council, be removed upon the handicapped person's moving out of the subject premises. This approach would require an amendment of the City Zoning Ordinance in compliance with state law procedures. We feel that this alternative suggestion provides an innovative approach to helping individuals who are handicapped live a more normal life. The City would, if it decided to go forward with such an amendment of the Zoning Ordinance, be setting an example for the rest of the state and country since we are not aware of similar ordinance provisions in any other municipality. PCC:mm June 19, 1981 MEMORANDUM TO: MAYOR AND MEMBERS OF CITY COUNCIL, CITY OF ROLLING HILLS FROM: PATRICK C. COUGHLAN RE: CONDITIONS TO ASSURE REMOVAL OF SPORTS COURT QUESTION PRESENTED: What conditions can the City impose in conjunction with the grant of a variance that will assure removal of the sports court fence upon sale or transfer of title, of the residence in question? CONCLUSION: There are a number of alternatives available to the City in order to assure removal of the sports court fencing upon sale or transfer of the property in possession of the variance. There is, however, no approach which can guarantee the City that litigation will not result if it attempts to enforce the conditions. The best protection available to the City would be to require that the applicant deposit with the City sufficient funds at this time to completely cover the City's costs of removing the fence if it were forced to take such action and sufficient additional funds to help defer any City Attorney's fees if litigation results from the City's attempt to enforce the removal of the fence. The funds received could be placed in an account, the interest from which could be paid directly to the applicant. In addition to putting up such funds ($2•,000.00 to $5,000.00) we would recommend that the applicant enter into a recordable covenant with the City which fully describes the requirement to remove the fence and grants to the City an easement for the purpose of entering the subject property to remove the fence. The agreement should also relieve the City of any liability whatsoever for damages incurred to the MEMO TO: MAYOR AND MEMBERS OF CITY COUNCIL Page 2 June 19, 1981 property in the process of removing the fence. In addition, the recordable covenant should state that if litigation results from the City's attempt to enforce the covenant that the prevailing party shall be entitled to receive reasonable attorney's fees from the losing party. Less protective of the City would be to merely require that the owner enter into an agreement with the City to remove the .fence upon sale of the property. We would recommend at the very least that the agreement be recorded so that any purchaser of the property is given adequate notice of the fact that the sports court fencing can be removed by the City. ALTERNATIVE APPROACH It would be possible in our judgment to modify the City's Zoning Ordinance to specifically provide for a special per- mit which could be granted to individuals meeting a definition of "handicapped" which could allow reduced setback, land coverage and other relevant requirements when facilities relating to the handicap are being installed on the premises. Such an ordinance should provide that the City Council may impose reasonable conditions on a permit, including one which would assure that nonconforming structures can and will, in the discretion of the. City Council, be removed upon the handicapped person's moving out of the subject premises. This approach would require an amendment of the City Zoning Ordinance in compliance with state law procedures. We feel that this alternative suggestion provides an innovative approach to helping individuals who are handicapped live a more normal life. The City would, if it decided to go forward with such an amendment of the Zoning Ordinance, be setting an example for the rest of the state and country since we are not aware of similar ordinance provisions in any other municipality. PCC:mm June 19, 1981 MEMORANDUM TO: MAYOR AND MEMBERS OF CITY COUNCIL, CITY OF ROLLING HILLS FROM: PATRICK C. COUGHLAN RE: CONDITIONS TO ASSURE REMOVAL OF SPORTS COURT QUESTION PRESENTED: What conditions can the City impose in conjunction with the grant of a variance that will assure removal of the sports court fence upon sale or transfer of title of the residence in question? CONCLUSION: There are a number of alternatives available to the City in order to assure removal of the sports court fencing upon sale or transfer of the property in possession of the variance. There is, however, no approach which can guarantee the City that litigation will not result if it attempts to enforce the conditions. The best protection available to the City would be to require that the applicant deposit with the City sufficient funds at this time to completely cover the City's costs of removing the fence if it were forced to take such action and sufficient additional funds to help defer any City Attorney's fees if litigation results from the City's attempt to enforce the removal of the fence. The funds received could be placed in an account, the interest from which could be paid directly to the applicant. In addition to putting up such funds ($2,000.00 to $5,000.00) we would recommend that the applicant enter into ..a —recordable covenant with the City which fully describes the requirement to remove the fence and grants to the City an easement for the purpose of entering the subject property to remove the fence. The agreement should also relieve the City of any liability whatsoever for damages incurred to the MEMO TO: MAYOR AND MEMBERS OF CITY COUNCIL Page 2 June 19, 1981 property in the process of removing the fence. In addition, the recordable covenant should state that if litigation results from the City's attempt to enforce the covenant that the prevailing party shall be entitled to receive reasonable attorney's fees from the losing party. Less protective of the City would be to merely require that the owner enter into an agreement with the City to remove the fence upon sale of the property. We would recommend at the very least that the agreement be recorded so that any purchaser of the property is given adequate notice of the fact that the sports court fencing can be removed by the City. ALTERNATIVE APPROACH It would be possible in our judgment to modify the City's Zoning Ordinance to specifically provide for a special per- mit which could be granted to individuals meeting a definition of "handicapped" which could allow reduced setbacx, land coverage and other relevant requirements when facilities relating to the handicap are being installed on the premises. Such an ordinance should provide that the City Councilmay impose reasonable conditions on a permit, including one which would assure that nonconforming structures can and will, in the discretion of the City Council, be removed upon the handicapped person's moving out of the subject premises. This approach would require an amendment of the City Zoning Ordinance in compliance with state law procedures. We feel that this alternative suggestion provides an innovative approach to helping individuals who are handicapped live a more normal life. The City would, if it decided to go forward with such an amendment of the Zoning Ordinance, be setting an example for the rest of the state and country since we are not aware of similar ordinance provisions in any other municipality. PCC:mm City ofi2lf•..9. Jdff> MEMORANDUM TO: PLANNING COMMISSION FROM: TEENA CLIFTON A"` SUBJECT: DRAINAGE FOR MASON ROSE PROPERTY • INCORPORATED JANUARY 24, 1957 NO. 2 PORTUGUESE BEND ROAD ROLLING HILLS, CALIF. 90274 (213) 377-1521 March 17, 1981 At the Planning Commission's request the drainage for the Rose property was reviewed in the field. It is visually apparent that all drainage from the subject property will be taken easterly to a catch basin located on the north side of Crest Road just beyond the Rose property boundary. The drainage was further checked by Roger Vink, Maintenance Foreman, Rolling Hills Community Association, and he confirmed that the drainage from the drain in question does not pond on the road. This drain is adequate to take the amount of water which Mr. Rose's property would develop as a new catch basin and line was installed there approx- imately four years ago. TC:ma