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HomeMy WebLinkAboutORD FOR ADOPTION 06-15-81DATE: TO: FROH: SUB,JECT: June 15, 1981 ORDINANCES FOR ADOPTION 6-15-81 NO. 1 Inter- Corn Honorable Mayor and City Council Members Community Development Department Zone Change 81-2, Letter requesting waiver of conditions Location: Red Hill Avenue and Nisson Road Applicant: Eugene and Rita Tutt BACKGROUND The application was to rezone certain properties from Retail Commercial (C-1) to Commercial General (CG) at the northeasterly corner of Red Hill Avenue and Nisson Road. The Planning Agency recommended approval of the zone change to the City Council on May 4, 1981, by the adoption of Resolution No. 1969. The City Council considered the Zone Change at the May 18, 1981 meeting and amended the ordinance to include the following three conditions: 1. That the applicant will post a bond for public improvements, to be determined by the City Engineer. 2. File a subdivision parcel map. The recording of a signed agreement as prepared by the City Attorney and the posting of a bond to guarantee the removal of the billboards from subject property at no expense to the City within three (3) years from the date of the adoption of this ordinance. U.P. 81-17 has been continued until the conditions of the Zone Change have been heard and resolved. DISCUSSION Staff will recommend approval of Zone Change 81-2, subject to the three conditions imposed by the Council at the May 18, 1981 meeting. No substantial evidence has been submitted which indicates that any of these three conditions should be omitted. RECOMMENDED ACTION Pleasure of the Council. EMK/dat EUGENE F. TUTT, A.I.A. ARCHITECT June l, 1981 Hcncrable City Council City of Tustin Tustin, CA 92680 RE: ZONE CHANGE, ORD. NO. 846 ~adam and Gentlemen: i have been infcrmed by Mr. Fleagle, in a letter date~ May 20, 1981, that Use ?ermit 81-17 will be recommended for adoption by the Planning Agency on June 1, 1981 after Ordinance No. 846 which changes the classi- fication of the subject property from C-1 to CG is adopted. The zone change has been recommended by the planning staff and the Planning Agency for your approval; however, acccrding to Mr. Fleagle's letter, the Council has made the zone change, which is a condition precedent to the approval of the Use Permit, contingent upon my acceptance of three conditions. I have examined the conditions and have discussed them with Mr. Fleagle and Mr. Rourke. I concl'ude that I cannot agree to them for the following reasons: e The filing of a parcel map for the lease of a portion of parcel 2 occupied by the temporary nursery use. My understanding of the Subdivision Map Act is that a subdivision is required only if property is leased and that joint ventures are exempted from its provisions. Since the nursery is operated as a joint venture and no lease exists, I don't believe that this condition is valid. The posting of a bond for public improvements in an amount to be determined by the City Engineer. The off-site improvements for parcels 1 and 2 were designed prior to the development of parcel 1 in 1969. Because of the existing topography the construction of the improvements as designed will cause flooding of parcel No. 2. It was, therefore, agreed that improvements would be constructed on parcel 1 only and construction of improvements on parcel 2 would be deferred until permanent development of parcel 2 would allow the importation of fill to establish drainage. In July of 1980 when the Planning Agency considered a petition for Variance to allow additions to the existing residence located on the property, the staff report Honorable City Council June l, 198! Page 2 contained a reco~'~ended condition requiring the submittal of a cash deposit for street improvements. My position then, as it is now, was that, per our agreement, I will install all required street improvements when the property is developed; I could not install the improvements prior to that time without floedin§ the property. After some discussion, which included consideration of requirement of a performance bond in lieu of a cash deposit, the Agency con- cluded that the City can require construction of the said improve- ments when the property is developed and a bond would %e superfluous. I believe that that rationale remains valid and ask that you delete this condition. The signing of an agreement as prepared by the City Attorney that would provide for the removal of the billboards within three (3) years. I recognize that the majority of the City C~uncil wishes off-site outdoor advertising within its jurisdiction and its right to do so. The conflict between government and has been marked in recent years by arduous and sometimes acrimonious negotiation and ambiguous and conflicting legislation and its inter- pretation. I believe, however, that all legislation, both federal and state, and all court opinions which apply to billboards such as those in question have consistently found that while affirming the right of Cities to require the removal of non-conforming signs, specifically require that a property owner having an interest in them receive just compensation for the taking. As you are aware recent activity in the 'courts and the legislature may clarify the rights and responsibilities of the public and property owner; some of these are: to eliminate I acknowledge advertisers Adoption last year by the legislature of statutes providing a m~ratorium until January of 19B2 on the removal by any govern- mental~entity of lawfully erec'~ed advertising displays and establishing an advisory co,,~ttee to examine the need for legislation in this area. In enacting these measures the Legislature found that due to recent legislation, administrative interpretation and judicial opinions concerning the subject sub- stantial review and study are required "~ithout prejudice to any party's rights." An opinion in April of 1980 of the California Supreme Court in a review of Metromedia, Inc. vs. City of San Diego t~)at a City ordinance banning all off-site advertising billboards following expiration of amortization period to the extent that the ordinance permitted removal witi~out compensation, if 23 U.S.C.A. §131 is applicable, is invalid. The agreement by the U.S. Supreme Court to hear an appeal of the San Diego case during this term. An opinion is expected before July 4. Honorable City Council June l, 1981 Page 3 Since it appears that the rights and responsibilities mf the various parties are finally going to be established in the very near future, I would expect that you would await such c~arifica- tion and then act, if you wish to, in accordance with the law. Z certainly am willing to abide by whatever the Legislature and the courts decree. By attaching this condition to a matter en- tirely unrelated to the issue, I come to the reluctant conclusion that the City, in anticipation of a possible vindication ef the right to property, is making a last-ditch attempt, by requiring our waiver of such right prior to its clarification, te eliminate the billboards without compensation. The billboards were in legal existence when I agreed to annexation of the property to the City more than ten years ago and they exist legally today. Whatever the actions of the government have been in addressing the issue of control of outdoor advertising, whether by the Congress, the Legislature or the courts, they have been character- ized by a consistent attempt to recognize the legitimate rights of the property owner. I think it is unconscionable that the Tustin City Council apparently has taken a position which ~isregards those rights and, therefore, I cannot accept this condition. I would hope that a way can be found to allow Auto-Mate's continued opera- tion. As you know, the procedures for accomplishing this have been recom- mended and tentatively enacted by the staff and the Agency. Tho neighbor- hood has communicated its broad and enthusiastic support. I am not aware of a single objection to the Zone Change or the Permit. I am surprised that, in the wake of the publicity concerning the necessity of departmental budget cuts resulting from reduced revenues, you do not welcome a business on that small parcel at Red Hill and the Freeway which has the potential to generate a quarter of a millioq dollars annually in sales and use taxes as opposed to a fifty dollar business license by a new tenant. Mr. Fleagle, in his letter, indicated that the staff and Council want to assist ~ in the use of the property to the maximum extent possible, but in so doing, wish to assure that no charge of favoritism or special privilege is granted. I agree that your imposition of the conditions constitutes special treatment, but, to my way of thinking, can hardly be called privilege nor could any rational being consider their deletion "favoritism." Upon receipt of a communication from you that you insist upon the conditions, Mrs. Tutt and I shall, with great reluctance, withdraw our petition for rezon i rig. ,~ V~y yours, Eugene F. Tutt, ~.~.A. hb ORDINANCE NO. 846 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, APPROVING THE REZONING OF CERTAIN PROPERTIES FROM C-1 TO CG DISTRICT AT THE NORTHEASTERLY CORNER OF RED HILL AVENUE AND NISSON ROAD 5 6 ? 8 9 10 11 12 15 14 15 16 17 18 19 20 21 22 24 25 26 The City Council of the City of Tustin does ordain as follows: I. That the City Council of the City of Tustin does hereby find and determine as follows: That a proper application, (Zone Change 81-2) has been filed on behalf of Eugene and Rita Tutt for a zone change from the Retail Co, m,ercial (C-1) to the Commercial General (CG) District for the property described in Exhibit "A? attached hereto and incorporated herein by this reference as though set forth herein in full. B. That a public hearing was duly called, noticed and held on said application. C. That a zone change should be granted for the following reasons: The Commercial General District is in conformance with the commercial land use designation of the Tustin Area General Plan. The Commercial General District authorizes a broader range of permitted uses and provides the opportunity for review of unclassified uses for appropriateness of site and development. De Development of subject property shall be in accordance with the policies adopted by the City Council; Uniform Building Codes as administered by the Building Official; Fire Code as administered by the Orange County Fire Marshal; and street improvement requirements as administered by the City Engineer. E. Final development plans shall require the review and approval of the Community Development Director. F. That this project is categorically exempt from the requirements of the California Environmental Quality Act. G. Uses within the District are subject to approval of a use permit. II. The City Council, hereby approves zone change 81-2 for the above described properties (Exhibit "A") from the Retail Commercial {C-1) to the Commercial General (CG) District subject to the following requirements: 27 A. 28 2,9 ;.'50 B. The posting of a bond in an amount determined necessary by the Public Works Director for the completion of public improvements at such time as the property is improved or public improvements can be constructed without adverse impact upon existing private property improvements. The filing of a parcel map as required by the Subdivision Map Act for that portion of Parcel 2 of Parcel Maps 25 - 29 recorded in Book 25, Page 29 of Miscellaneous Maps of Orange County. 1 $ 4 § 6 ? 8 9 10 11 15 14 15 16 17 18 19 20 22 24 26 28 Ordinance No. 846 Page Two Ce The recording of a signed agreement as prepared by the City Attorney and the posting of a bond to guarantee the removal of the billboards from subject property at no expense to the City within three (3) years from the date of the adoption of this ordinance. PASSED AND ADOPTED at a regular meeting of the City Council held on the day of June, 1981. James B. Sharp Mayor ATTEST: Mary E. Wynn City Clerk SANTA AHA COMMERCIAL GENERAL _J · NISSON ZONING MAP TUSTIN, CALIF. PER RES. NO. DATED PER ORD. NO. DATED EXHIBIT A .J FWY .J