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HomeMy WebLinkAboutAgenda Packet - August 13, 1993 - CC LAW OFFICES OF, �..- ADAMS, DUQUE & H„AZELTINE SAN FRANCISCO OFFICE 777 SOUTH FIGUEROA STREET NEW K OFFIC 500 WASHINGTON STREET TENTH FLOOR 551 MA SON AVEN SIXTH FLOOR EIGHTH FLOOR SAN FRANCISCO,CALIFORNIA 94111 LOS ANGELES, CALIFORNIA 90017-5810 NEW YORK, NEW YORK 10022 TELEPHONE(415)982-1240TELEPHONE (213) 620-1240 TELEPHONE(212)750-1240 FAX(415)982-0130 FAX(212)644-9727 FAX (213) 896-5500 SAN DIEGO OFFICE 401 WEST A STREET HENRY DUQUE (1904-1971) TWENTY-SIXTH FLOOR EARL C. ADAMS (1892-1986) SAN DIEGO,CALIFORNIA 92101 August 13, 1993 TELEPHONE(619)232-1240 FAX(619)232-1351 ATTORNEY CLIENT COMMUNICATION PRIVILEGED AND CONFIDENTIAL Honorable City Council City Hall 213 East Foothill Boulevard Azusa, California 91702-1395 Re: Azusa Rock Co. /Conditional Use Permit Honorable Mayor and Members of the Council : This firm was retained to provide a second opinion with respect to possible revocation of a conditional use permit (CUP) held by Azusa Rock Co. You have previously been advised by your City Attorney, Henry Barbosa, that there are not sufficient grounds to justify revocation of the CUP. The issue is whether sufficient evidence has been presented to the City Council on which the City Council could base a reversal of a previous determination of the City' s Planning Commission that Azusa Rock was substantially in compliance with the conditions imposed upon its CUP. In this connection, I have reviewed material forwarded to me by Mr. Barbosa, consisting primarily of former use permits and various memoranda generated by the City on the issue over the past five years . I have also consulted with City staff and researched applicable law. I have not been provided with a transcript of the hearings either before the Planning Commission or the City Council . OPINION My opinion is that under the facts of this case, I do not believe there is sufficient evidence on which the City Council could base a determination that Azusa Rock had not complied with the conditions imposed upon its CUP. In the event revocation occurred under those circumstances, it is highly 4 k Honorable City Council August 13 , 1993 Page 2 likely that the revocation would be overturned by a court on petition for writ of mandate. The reasons for my opinion follow. HISTORICAL BACKGROUND The subject property is located at 3901 Fish Canyon Road. In November, 1956 the City Council adopted Resolution No. 3546 granting a CUP (then called a "special use permit") for excavation and removal of rock, sand and gravel along with operation of a plant for crushing rock and producing concrete and asphalt . There was no time limit on the CUP but it was subject to seven conditions . The original operator was Fred Heyden of Canyon City Rock Products who later transferred those rights to Kirst Construction Co. , Inc . Kirst was subsequently renamed Azusa Rock and is now owned as a joint venture of Owl Rock and Cal Mat . Apparently Kirst conducted a low profile operation for a number of years after initial issuance although there were complaints from time to time, which resulted in a legal opinion issued by the City Attorney' s office in 1980 that the operation was valid as long as it complied with the conditions . Early in 1988, complaints from nearby residents and the City of Duarte increased to the point where a hearing was scheduled before the Planning Commission to determine whether there was sufficient basis for revocation of the CUP. Prior to the hearing the staff determined that several of the conditions had not been satisfied. There was also evidence of noise, air quality degradation, interference with public access, destruction of sensitive plants and unauthorized intensification of the use. After several hearings the Planning Commission recommended to the City Council in September 1988 that the CUP be revoked on the grounds that it was "detrimental to the public health or safety or is a nuisance" and that the use had been "suspended for a period of one year or more. " Azusa Rock proposed a number of mitigation measures and after conducting hearings, the City Council adopted Resolution No. 8553 in December, 1988 . In that resolution, the Council made certain findings about public health and safety problems generated by the operation and concluded they could be mitigated by the addition of a number of conditions requiring road realignments and various limitations on operations . In essence, Resolution No. 8553 allowed the operation to continue so long as Honorable City Council August 13 , 1993 Page 3 the added conditions were satisfied, as determined by a regular review process . Azusa Rock agreed to this modification of the CUP. Thereafter, a lawsuit was filed challenging the operation which ultimately resulted in a decision affirming the City Council' s decision. In 1990 the City Council again directed the Planning Commission to review the operation to determine if grounds existed for revocation of the CUP. After hearings by the Planning Commission and City Council, the City Council adopted its Resolution No. 8978 in December, 1990 . That Resolution found there was no need to revoke the CUP but made certain changes and additions to the conditions, one of which was an annual compliance review by public hearing before the Planning Commission with right of appeal to the City Council . CURRENT PROCEEDING In December, 1992 the staff conducted its annual review of the operation and found that Azusa Rock had complied in most respects but had sometimes violated several of the conditions in the previous year. The Planning Commission conducted a hearing at which the evidence presented indicated compliance with all the conditions with certain exceptions . These were: 1 . Several occasions where trucks were operating outside permitted hours or an excessive number of trucks were used. 2 . Dust clouds around the surge pile on one occasion and failure to use water trucks to wet down the road on three occasions resulting in several complaints to the City and AQMD. The Planning Commission determined that no action was required. Pursuant to the appeal provisions of the CUP, an appeal was taken to the City Council which conducted a hearing. It is my understanding that at the hearing before the City Council, no additional facts or evidence were presented aside from what had previously been presented to the Planning Commission. APPLICABLE LAW The proceeding currently before the Council is not one for revocation of the Azusa Rock CUP. Rather, it is an Honorable City Council August 13 , 1993 Page 4 administrative appeal from a monitoring process created to govern this specific CUP. Accordingly, even if the Council determined that there was no compliance with the conditions of the CUP it could not proceed to revoke the permit . Instead, it would once again have to direct the Planning Commission to conduct a hearing specifically for that purpose in accordance with Section 19 . 60 . 150 of the Azusa Municipal Code. It is assumed that essentially this same evidence would be presented to the Planning Commission at such subsequent hearing and, accordingly, this opinion will deal with that evidence as if it dealt with revocation. CUP' s are use privileges that run with the land indefinitely irrespective of changes of ownership unless limited in time or scope by conditions . Once issued, a CUP is vested and the power of a city "to revoke it is limited. " O'Hagen v. Board of Zoning Adjustment, 19 Cal .App.3d 151, 158 (1971) . As the Court stated in the O'Hagen case: "Where a permit has been properly obtained and in reliance thereon the permittee has incurred material expense, he acquires a vested property right to the protection of which he is entitled. " Under the rule expressed in O'Hagen, revocation can occur only if there is failure to comply with reasonable terms and conditions of the CUP or by "compelling public necessity. " In practice, the latter means that operation of the business constitutes a nuisance. The reason for the rule was most recently stated in Goat Hill Tavern v. City of Costa Mesa, 6 Cal .App.4th 1519, 1529 (1992) : "Interference with the right to continue an established business is far more serious than the interference a property owner experiences when denied a conditional use permit in the first instance. Certainly this right is sufficiently personal, vested and important to preclude its extinction by a nonjudicial body. " Denial of an application to renew an existing permit merits a "heightened judicial review" under the Goat Hill Tavern Honorable City Council August 13 , 1993 Page 5 case. Obviously, revocation of an existing permit would also require a heightened review in which the Court would exercise its independent judgment. In determining whether an existing permit should be revoked a city council must act upon "evidence substantially supporting a finding of revocation. " Transoceanic Oil v. City of Santa Barbara, 85 Cal.App.2d 776, 795 (1948) . Section 19. 60. 150 of the Municipal Code provides for revocation of CUP's for any one of five separate reasons. Only the first of those is conceivably applicable here: that the use is "detrimental to the public health or safety or is a nuisance. " The Code further provides that the Planning Commission shall hear in the first instance a proposed revocation of a CUP and then report its findings of fact and recommendations to the City Council which "shall determine the facts and may revoke, modify or allow to remain unchanged" the CUP. Based upon the history of this CUP, it is my view that it might well have been possible for the City Council to revoke it early in 1988 in light of the violation of numerous conditions discovered at the time. However, it is apparent that virtually all of the activities which caused the pre-1988 complaints have been modified and that the operator is either in compliance or has done everything it can do to comply with the conditions. There are obviously violations of dust and noise requirements from time to time, but in my opinion they are too minor and too scattered to be of a nature to withstand the heightened judicial scrutiny and exercise of independent judgment which a Court would bring to an adverse finding by the City Council.