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CC SR 20160920 E - Green Hills Administrative Interpretation ProcedureRANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 09/20/2016 AGENDA REPORT AGENDA HEADING: Consent Calendar AGENDA DESCRIPTION: Consideration and possible action to receive and file a report on the City Attorney's determination regarding a requested Administrative Interpretation Procedure relating to vault storage and rooftop burials at the Inspiration Slope Mausoleum. RECOMMENDED COUNCIL ACTION: (1) Receive and file a report on the City Attorney's determination that the requested Administrative Interpretation Procedure is not appropriate for the vault storage and rooftop burials at the Inspiration Slope Mausoleum. FISCAL IMPACT: None Amount Budgeted: N/A Additional Appropriation: N/A Account Number(s): N/A ORIGINATED BY: So Kim, Senior Planner:('-' REVIEWED BY: Ara Mihranian, AICP, Director of Community Development APPROVED BY: Doug Willmore, City Manager:I` 1 ATTACHED SUPPORTING DOCUMENTS: A. Noel Weiss' letter requesting an Interpretation Procedure (page A-1) B. City Attorney's letter in response to Noel Weiss' letter (page B-1) BACKGROUND AND DISCUSSION: On July 21, 2016, Mr. Noel Weiss, on behalf of Sharon Loveys, filed a written request for an "Administrative Interpretation Procedure" pursuant to Sections 17.78.050 and 17.90.010 of the Rancho Palos Verdes Municipal Code (RPVMC) related to vault storage and rooftop burials at the Inspiration Slope Mausoleum at Green Hills Memorial Park ("Green Hills"). Specifically, Mr. Weiss' request letter (Attachment A) questions whether the storage of vaults on the rooftop of the Inspiration Slope Mausoleum building is authorized under the terms of the existing Conditional Use Permit (CUP) for Green Hills; whether such use is permitted under the City's Cemetery (CEM) zoning district; and the extent of the City Manager's authority to agree to allow such use. The City Attorney reviewed Mr. Weiss' letter and determined that the issues for which he is requesting interpretation overlap with the issues that he is raising in two separate but related lawsuits against the City (Attachment B). As Mr. Weiss has chosen to litigate, the City Attorney opined that it is not appropriate for the City Council to engage in the "Interpretation Procedure" at this time, as these matters will evidently be largely 1 decided by the court (Attachment B). As a result, Mr. Weiss' "Administrative Interpretation Procedure" request has been administratively withdrawn and the related application fees were refunded. It should be noted that the City Attorney's letter reiterates the City's offer to pursue mediation should Mr. Weiss' clients be willing to contribute half the mediation cost. 2 RECEIVE© J U L 2 1 2016 REQUEST FOR INTERPRETATION RE VIEWOOMMUNrrY DEVELOPMENT PURSUANT TO RPV MUNICIPAL CODE §17.78.050 & §17.9ii. TMENT TO: CITY OF RANCHO PALOS VERDES — CITY CLERK FROM: NOEL WEISS (COUNSEL FOR SHARON LOVEYS) DATED: JULY 18, 2016 The City Manager's grant of permission to Green Hills Memorial Park to store vaults on the roof -top of the Inspiration Slope Mausoleum was communicated in a letter dated June 28, 2016, to Green Hills Memorial Park, a copy of which is attached to this Request for Interpretation Review. The allowance to Green Hills of the right to use the roof -top of the Inspiration Slope Mausoleum to store 600 vaults has created an ambiguity and uncertainty with respect to (i) the scope and meaning of the Green Hills Master Plan (i.e. whether such use is authorized under the terms of the Conditional Use Permit initially granted in February, 1991, as modified by the Planning Commission in April, 2007, and then further modified by the City Council in November, 2015), and (ii) whether such roof -top (storage) use of the Inspiration Slope Mausoleum is even contemplated or permitted under the Cemetery Zoning Law of the City of Rancho Palos Verdes (as set out in Chapter 17.28 (§§17.28.010-17.28.040)). BacIc round Facts: 1. Under the Master Plan in favor of Green Hills Memorial Park approved by the City of Rancho Palos Verdes in February, 1991, and as later amended first by the Planning Commission in April, 2007, and later by the City Council in November, 20151, no 1 The November, 2015 City Council action did not deal specifically with any issues attendant to the development of the Inspiration Slope Mausoleum. Rather, the City Council's focus in overruling the views of its prior City Attorney and the Planning Commission was solely directed to the contentions set out in Green Hills' appeal of what Green Hills contended was an adverse Planning Commission determination that it was necessary for Green Hills to apply for and procure (i) an (after the fact) variance from the development standard incorporated into the City's Zoning Code requiring the building envelope of the Pacific Terrace Mausoleum to be set back 40' from the (southern) property line of the adjacent Vista Verde condominium complex; and (ii) to procure an (after the fact) conditional use permit allowing for the interment of human remains on the roof of the Pacific Terrace Mausoleum (a use never specifically contemplated by the Planning Commission or staff in April, 2007, when the Green Hills Master Plan and Conditional Use Permit were amended). 1 A-1 conditional use right or permission was given to Green Hills allowing use of the roof- top of the Inspiration Slope Mausoluem for any purpose beyond that of serving as a roof atop the mausoleum structure. 2. Green Hills has never formally applied for an amendment to its Master Plan specifically allowing for such use (i.e. as either vault storage or as allowing for the interment of human remains on the roof -top of the Inspiration Slope Mausoleum); nor has Green Hills applied for a special permit allowing for such use. 3. Instead, beginning in or about January, 2016, and continuing through June 28, 2016, Doug Willmore, Rancho Palos Verdes City Manager, and representatives of Green Hills Memorial Park engaged in a series of oral and written discussions premised on the unsubstantiated and undocumented notion that the current Green Hills Master Plan "contemplates the possibility of roof -top burials" on the roof of the Inspiration Slope Mausoleum (while omitting any reference to the allowance or permitting of "roof -top vault storage"). Background Law: §17.28.030(A) of the Rancho Palos Verdes Municipal Code states that a conditional use permit is required for the following uses relevant to this Request for Interpretation Review: (i) Burial Park for earth interments, (ii) Mausoleums for vault or crypt interments, or (iii) Columbarium for cinerary interments'. While the terms "Burial Park" and "Mausoleum" are not defined in the City's zoning code, California state law provides the following definitions pertinent to the requested Interpretation Review of Mr. Willmore's unratified, unauthorized action in purporting to grant Green Hills land use entitlement rights which have never been formally applied for, and for which no formal approval by the Director of Planning, the Planning Commission, or the City Council has been procured: 1. "A burial park means a tract of land for the burial of human remains in the ground. used or intended to be used, and dedicated for cemetery purposes". (§7003(1)(1) of the Health & Safety Code) (Emphasis Added). 2 Thus, only the following three identifiable categories of allowable "interments" are created under the City's zoning law: (1) Earth interments; (2) Vault (or crypt) interments; and (3) Cinerary interments. No category is created or stated which is identified as "roof- top interments, or "roof -top burials"; nor is there any referenced category created under the RPV City Cemetery Zoning Code for "ground burials" or "above -ground burials"; or any formal legal category which otherwise makes use of the term "burials" when describing the type of uses permitted under the provisions of the City's Cemetery Zone. 2 A-2 2. "A mausoleum means a structure or building for the entombment of human remains in crypts or vaults in a place used, or intended to be used, and dedicated for cemetery purposes". (H&S Code §7005) (Emphasis Added). 3. "Entombment means the process of placing human remains in a crypt or vault". (H&S Code §7012) (Emphasis Added) 4. "Crypt or vault means a space in a mausoleum of sufficient size, used or intended to be used, to entomb uncremated human remains". (H&S Code §7015). (Emphasis Added) 5. "Interment means the disposition of human remains by entombment or burial in a cemetery...." (H&S Code §7009). 6. "Burial mean the process of placing human remains in a grave". (H&S Code §7013 (Emphasis Added). 7. "Grave means a space of earth in a burial park, used, or intended to be used, for the disposition of human remains." (H&S Code §7014)(Emphasis Added). As such, State Law does not explicitly make provision for the interment of human remains on the roof -top of the Inspiration Slope Mausoleum. In fact, it can be contended that state law contemplates that "graves" and "burials" solely involve the placement of human remains in the earth (below -ground (or below grade)); while Mausoleum use contemplates the placement of human remains inside a building or structure built for that purpose. Nothing in state law appears to contemplate or envision use of the roof of the Inspiration Slope Mausoleum as a venue for "burials" (as defined under California state law). The City's Zoning Code does not specifically define the terms "interment", "earth interment", or "below -grade interment" (the latter term being used in § 17.28.040(A) of the City's Municipal Code (which establishes set -back standards as it draws a distinction between the set -back distances for "structures" on the one hand, and "below -grade interments" on the other)). Nor does the City's Zoning Code make any definitional reference to the terms "burials", "ground burials", "roof -top burials", or "interments". Equating (by mere implication) the term "burials" with "interments" absent any clear, specific definitional structure identified within the City's Cemetery Zoning Code creates needless ambiguity and confusion; and in the absence of the needed clarification called for by this Interpretation Review Request, avoidable confusion will exist in how the provisions of the Green Hills Master Plan and Conditional Use Permit are to be applied and enforced; all of which can lead to controversy, litigation, uncertainty, and a lack of predictability; and all of which is needlessly prejudicial to the City, Green Hills, RPV citizens, and the Vista Verde Condominium owners. 3 A-3 The City's Cemetery Zoning Code (and specifically §17.28.030(A -G)) does not identify any specific category allowing or permitting the creation or maintenance of "roof- top interment sites"3 as a lawfully permitted "conditional use." Instead, RPV Municipal 3 The City's current practice in using the word "burials" as a substitute for the term "interments" is a misnomer and is confusing and ambiguous. This is because the term "burial" is defined under state law but not under the RPV Cemetery Zoning Code. As so defined under state law, "burial" does not equal "interment". Therefore, it cannot reasonably be said that the "burial" of human remains automatically or logically contemplates the "interment" of human remains on the roof of a structure. For Green Hills or the City Manager to state or imply to the contrary creates confusion, ambiguity, and lack of clarity; all of which are supportive of this Interpretation Review Request. The City's Zoning Code speaks only in terms of "earth interments•" and "below -grade interments"; neither of which are consonant with the notion of "roof interment". A clarification is thus needed as to whether, under the City's Cemetery Zoning Code, it is lawful to inter human remains on the roof of the Inspiration Slope Mausoleum (versus inter human remains inside the "four walls" of the Inspiration Slope Mausoleum). The placement of "fill", "sod", "soil", or "grass" on the roof of the Inspiration Slope Mausoleum also embraces clear and obvious limitations and issues attendant to the broader public health, welfare, and safety. With the exception of the Pacific Terrace Mausoleum, nowhere else in California has a mausoleum roof been used as a venue for the interment of human remains. The requested Interpretation Review also impacts other aspects of the Green Hills Master Plan such as (i) the total number of authorized "interments" to be allowed under the Master Plan (i.e. are "roof -top interments, even if authorized, included in the total number of "interments" allowed under Green Hills Master Plan); (ii) where "fill" is to be stored and the limitations on where "fill" generated from earth interments is to be stored, and (iii) where, within the geographical boundaries of the Green Hills Master Plan are vaults, crypts, and other material items permitted to be stored. There is a portion of the state Health & Safety Code which imposes strict requirements on how a Mausoleum is to be built (i.e. Health & Safety Code §§9600-9603; and §§9625- 9647). No reference exists in those statutes to the use of a structure's roof for the interment of human remains. Until this Interpretation Review Request has been acted upon, the City's Planners, the City Planning Commission, the City Manager, the City Attorney, and the City Council should cease and desist from using the term "roof -top burials" or "ground burials" when referring to the Green Hills Master Plan. This includes the (misleading (by omission)) use of the term "rooftop burials" in Mr. Willmore's letter of June 28, 2016, particularly when the focus of the letter is supposed to be limited to Green Hills' use of the roof of the Inspiration Slope Mausoleum as a venue to store 600 vaults. Accordingly, the Map of the Green Hills Master Plan prepared and maintained by the City's Planning Department (where it is contemplated that the interment of human remains is to occur on the roof of the Inspiration Slope Mausoleum) should be revised to remove all references to "ground burials" as confusing, ambiguous, and inconsistent with both state law and the City's Cemetery Zoning Code. Instead, (i) the words "earth 4 A-4 Code §17.28.030(H) gives the "Director" discretion to permit "such other uses as the Director deems to be similar and not more intensive" (with such determination being exercised following the submission of a formal application). This lack of definitional clarity with regard to the if, when, and under what conditions "roof -top interments" or "roof -top vault storage" are to be allowed under the City's Cemetery Zoning Code has resulted in an ambiguity which necessitates that the provisions of RPV Municipal Code § 17.78.050 (Interpretation Procedure for Approved Applications) be invoked to further define, clarify, and enumerate the conditions incorporated into the current Conditional Use Permit possessed by Green Hills under its Master Plan, and whether the use of the roof of the Inspiration Slope Mausoleum to either (i) store vaults, or (ii) inter human remains engenders and raises new issues never contemplated by the City when it initially approved the Green Hills Master Plan in February, 1991, or amended it in April, 2007 (Planning Commission), or when the City Council acted in November, 2015, to "clarify" certain matters attendant to the Green Hills Master Plan (as per Green Hills' appeal to the City Council) and thus formally amend the same with regard to the matters incorporated in Green Hills' appeal (and without benefit interment" (where appropriate) should be substituted to identify those geographic areas on the map where human remains are placed in the earth (or in the ground; i.e. below (earth) grade); and (ii) the words "roof -top interments" should be used to identify those structures where (assuming it is otherwise lawful) human remains are to be interred on the roofs of one or more of the Mausoleums identified on the Map. This aligns with the precise issues raised by this Interpretation Review Request; namely: (1) Whether "roof -top interments" are permissible under the RPV Cemetery Code, (2) Whether the Green Hills Master Plan contemplates the use of the Inspiration Slope Mausoleum as a venue where "roof -top interments" are to occur; (3) (If so), whether Green Hills has applied for and procured a conditional use permit allowing for the use of the roof of the Inspiration Slope Mausoleum for the interment of human remains; (4) (If not), whether Green Hills is required to procure a conditional use permit allowing for the same after a formal hearing, consistent with the City's Zoning Code; (5) Whether Green Hills is required to apply for and procure a conditional use permit to store vaults on the roof of the Inspiration Slope Mausoleum in advance of its being permitted to do so; and (6) Whether the City Manager on his own initiative possesses the right, power, and authority to authorize the use of the roof of the Inspiration Slope Mausoleum as a venue on which to store vaults (be it with or without any formal contractual indemnity) absent Green Hills having first applied for and procured either (i) a temporary permit, or (ii) a conditional use permit, or both, allowing for such specific use of the roof of the Inspiration Slope Mausoleum beyond that of being simply used as a roof. 5 A-5 of Green Hills ever having made formal application to amend its Conditional Use Permit or procure a variance from the set -back requirements referenced in the development standards incorporated into the City's Cemetery Zoning Code). This formal Request for Interpretation Review is also appropriate under Chapter 17.90 of the City's Municipal Code (Interpretation Procedure) concerning whether the City's current zoning code even allows roof -top use of the Inspiration Slope Mausoleum for purposes of either vault storage or the (roof -top) interment of human remains. Questions Presented: 1. Is use of all or any portion of the roof of the Inspiration Slope Mausoleum for either vault storage or for the interment of human remains currently permitted under the (Green Hills) Master Plan and Conditional Use Permit? If so, how and pursuant to what provisions of the Rancho Palos Verdes Municipal Code is such use (vault storage or interment of human remains) permitted?; 2. If not, should Green Hills be required to apply for and procure a conditional use permit (after Hearing and Notice) amending its Master Plan to allow for the use of the roof of the Inspiration Slope Mausoleum as a storage venue for unused burial vaults?; 3. If not, whether Green Hills should be required to apply for and procure a conditional use permit (after Hearing and Notice) amending its Master Plan to allow for the use of the roof of the Inspiration Slope Mausoleum as a space within the Green Hills Memorial Cemetery for the permanent interment of human remains?; 4. If not, whether Green Hills should be required to apply for and procure a special (temporary) use permit allowing for the use of the roof of the Inspiration Slope Mausoleum for any other purpose other than solely as a roof?; 5. Whether Doug Willmore, acting in his capacity as City Manager, is possessed of the right, power, or authority to unilaterally grant special permission to Green Hills allowing for the use of the roof of the Inspiration Slope Mausoleum for any purpose other than as a roof, in the absence of Green Hills having made formal advance written application to the City to amend the Green Hills Master Plan and Conditional Use Permit? 6 A-6 C ITV OF RANCHO PALOS VERDES OFFICE OF THE CITY MANAGER June 28, 2016 Mr. John Resich Chairman of the Board Green Hills Memorial Park 27501 S. Western Avenue Rancho Palos Verdes, CA 90275 Re: Inspiration Slope Rooftop Burials; Waiver of Claims Dear Mr. Resich: This letter memorializes the agreement between the City of Rancho Palos Verdes (City) and Green Hills Memorial Park (Green Hills) regarding the placement of concrete vaults on the rooftop of the Inspiration Slope Mausoleum (the Mausoleum) by Green Hills. The representatives of the parties reached an oral understanding to permit placement of concrete vaults on the rooftop of the Inspiration Slope Mausoleum provided that Green Hills agrees that the placement of the vaults does not provide Green Hills with: (i) any entitlement to conduct rooftop burials on the Mausoleum; or (ii) any claims for damages concerning the placement of the vaults should the City deny Green Hills' application for rooftop burials on the Mausoleum. This letter agreement confirms the oral understandings. 1. Factual Background Green Hills operates a memorial park and cemetery located in the City. Green Hills' operation and development of the memorial park is governed by the 2007 Master Plan, including all later amendments (the Master Plan), and by City Council Resolution No. 2015-12, revising and amending conditions of approval for Green Hills' Conditional Use Permit (CUP) and amending the Master Plan (the Resolution). The Master Plan contemplates the construction of the Mausoleum in Area 2 of the memorial park, and further contemplates the possibility of rooftop burials thereon. The CUP' s conditions of approval were revised and updated due to a recent controversy surrounding rooftop burials at another of Green Hill's mausoleums, the Pacific Terrace/Memorial Terrace Mausoleum in Area 11. The rooftop burials in the Pacific Terrace Mausoleum are visible from the condominium building just north of the structure, and have generated complaints and litigation. The City has expended significant public resources to resolve the issues surrounding the rooftop burials, and will expend significant further resources in the foreseeable future to resolve the litigation. 30940 HAWTHORNE BLVD / RANCHO PALOS VERDES, CA 90275-5391 / (310) 544-5207 / FAX (310) 544-5291 / www RhvcA,c ov PRINTED ON RECYCLED PAPER A-7 Mr. John Resich June 28, 2016 Page 2 Green Hills acknowledges that the Resolution amended Green Hills' CUP, which now provides for an administrative substantial compliance review so that, except for improvements consistent with the Master Plan or those subject to the Planning Commission, all improvements must be reviewed by the Director to determine if they substantially comply with the Master Plan (Condition 1.k.). Condition 1.k. specifically provides that review of an application for rooftop burials can be performed by the Director. The Director can, at his or her discretion, refer a matter directly to the Planning Commission. Condition 2 provides that the following matters are directly reviewable by the Planning Commission: (i) the construction or modification of a mausoleum or other significant building, (ii) any significant change to the grading, (iii) any development of a future phase of Green Hills where the Master Plan has not designated a development plan or uses, or (iv) any amendment to the Master Plan. Thus, while rooftop burials at Inspiration Slope are contemplated in the Master Plan, Condition 1.k. of the CUP now provides that Green Hills may not perform such burials prior to obtaining administrative approval from the Director or the Planning Commission, pursuant to the Resolution. In anticipation of possible rooftop burials, Green Hills has purchased and with the oral understanding memorialized herein, installed concrete vaults on the roof of the Mausoleum. Green Hills intends to cover the vaults with dirt and ground cover, per Condition 22 of the CUP. However, Green Hills has not to date filed an application to conduct rooftop burials at the Mausoleum per Condition 1.k of the CUP. Unless and until Green Hills obtains permission from the Director or the Planning Commission, Condition l.k provides that Green Hills may not perform rooftop burials at the Mausoleum. Green Hills does not have a readily available storage space for the vaults which have been ordered and has requested that it be allowed to (i) install the vaults on the roof top, and (ii) bury and backfill them. The City Manager has agreed that Green Hills may store the empty concrete burial vaults on the roof of the Mausoleum, and that such vaults shall be buried and the entirety of the roof shall be backfilled with dirt and ground cover, provided that Green Hills waives any claims for damages against the City related to the placement of the vaults should rooftop burials not be approved for the rooftop at the Mausoleum. Accordingly, if Green Hills submits an application to perform rooftop burials at the Mausoleum, and should the application be approved by the City, the concrete vaults may be utilized for that purpose. However, in the event that the City decides to deny any application by Green Hills to perform rooftop burials at the Inspiration Slope Mausoleum, Green Hills agrees not to utilize the buried concrete vaults for rooftop burials unless and until it complies with applicable laws and releases the City from any liability or damages to Green Hills related to the placement of the vaults arising from such decision, and assumes all risks therefore, as provided below. Based on the above, and on the City's police power expressly granted to it by state law, Green Hills agrees that the provisions of this Agreement are reasonable and do not impose an undue burden on Green Hills, and that the provisions of this Agreement are consistent with the agreed -to conditions of approval in the Resolution. Mr. John Resich June 28, 2016 Page 3 2. Waiver of Claims Against the City. Green Hills acknowledges that any future application for rooftop burials at the Inspiration Slope Mausoleum is within the City's police power expressly granted to it by state law to grant or deny and is consistent with Condition 41.a. of the CUP. Further, the City shall not be liable to Green Hills for any loss or damages related to the placement of the vaults whatsoever arising out of the City's denial of any such application for rooftop burials at Inspiration Slope. Green Hills waives all rights to future claims for damages arising out of the City's rejection of Green Hills' application for rooftop burials at the Inspiration Slope Mausoleum, but reserves the right to legally challenge the validity of any such denial except as may be otherwise provided herein. Green Hills further acknowledges that the denial of such an application does not constitute a compensable interest that would give rise to a takings or other monetary claim. 3. Police Power. Green Hills acknowledges that the City_has the authority to grant or deny discretionary applications for uses within the City in part based on concerns of public health, safety, and welfare. Green Hills agrees that the City retains its authority to determine the appropriateness of rooftop burials at the Mausoleum at a future date. Nothing in this Agreement, shall limit the City's authority to exercise its police powers or governmental authority, or take other appropriate actions to address issues of public health, safety, and welfare. Green Hills acknowledges that no rights arise under this Agreement as to the City's police power, including but not limited to, the approval or denial of any required permits. Further, this Agreement does not constitute a development agreement pursuant to Government Code Section 65864, and thus the Mausoleum remains subject to all applicable statutes, ordinances, regulations, and codes. 4. Indemnity. Green Hills, as a material part of the consideration to the City, shall indemnify, defend, protect and hold the City, its officers, directors, agents, representatives, City Council members and employees (collectively, "City"), harmless from and against all liens and encumbrances of any nature whatsoever which may arise from this Agreement or in the exercise of Green Hills' rights hereunder, and from any and all claims, causes of action, liabilities, costs and expenses (including reasonable attorneys' fees), losses or damages arising from City's agreement to allow the placement of the concrete vaults on the rooftop of the Inspiration Slope Mausoleum, or any act or failure to act of Green Hills or Green Hills's agents, employees, construction workers, or invitees (collectively, "Green Hills"), except those arising out of the sole willful misconduct of the City. 5. Waiver of Civil Code Section 1542. By releasing and forever discharging claims both known and unknown as provided herein, Green Hills expressly waives any and all rights under California Civil Code Section 1542 in connection with any Claim or Liability against the City. Civil Code Section 1542 provides: Mr. John Resich June 28, 2016 Page 4 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. Green Hills waives and relinquishes any and all rights and benefits which it may have under Section 1542 of the California Civil Code and any similar code provision or protection. Green Hills represents that it has performed a full and complete investigation of the facts pertaining to this Agreement. Nevertheless, Green Hills acknowledges and is aware that it may hereafter discover facts in addition to or different than those which it now knows or believes to be true with respect to potential claims, allegations, events and facts set forth herein, but it is Green Hill's intention hereby to fully and finally settle and release any and all matters, disputes, and differences, known or unknown, suspected or unsuspected, which may exist, as against the City, and in furtherance of this intention, the release herein given shall be and remain in effect as a full and complete general release notwithstanding discovery or existence of any such additional or different facts. 6. Integration; Amendment. This Agreement contains all of the agreements of the parties and cannot be modified, terminated, or rescinded, in whole or in part, except by an instrument in writing signed by all parties hereto. Green Hills acknowledges that it was permitted to commence installation of the concrete vaults based on an oral understanding consistent with the terms hereof and which is memorialized in this letter agreement. Green Hills agrees that it cannot use the fact that it was allowed to install the vaults pursuant to this agreement against the City or the validity of the City's actions in any manner in any subsequent legal proceeding. 7. Interpretation and Enforcement; Governing Law. This Agreement shall be construed and interpreted both as to validity and performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted and maintained in the Superior Court of the County of Los Angeles, State of California, or in any other appropriate court with jurisdiction in such county, and the parties agree to submit to the personal jurisdiction of such court. 8. Prevailing Party Attorney Fees. In the event that either party shall commence any legal action or proceeding to enforce or interpret this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorneys' fees. The venue for any litigation shall be Los Angeles County. In the event of any asserted ambiguity in, or dispute regarding, the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty Mr. John Resich June 28, 2016 Page 5 to exist or against the drafting party. This Agreement shall be governed by and interpreted under the laws of the State of California. 9. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. Please carefully review the terms of this letter agreement and, if you find them acceptable, execute the enclosed copy. This agreement may be executed in counterparts and by fax signature. By signing below, Parties represent and warranty that they have authority to bind the Parties to this Agreement. Please return the executed letter agreement by fax and by enclosing an executed original in the envelope provided. Sincerely, g/Gti Doug Willmore City Manager Cc: City Council City Clerk I HAVE RECEIVED THE ORIGINAL OF THIS LETTER AGREEMENT AND UNDERSTAND THE FOREGOING TERMS AND CONDITIONS AND AGREE TO THEM. I HAVE THE AUTHORITY TO SIGN ON BEHALF OF AND BIND GREEN HILLS. Dated: June 28, 2016 R1AL PARK John Resich Chairman of the Board ALESHIRE & WWYNDER LLP ATTORNEYS A T LAW David J. Aleshire i 18881 Von Kerman Avenue, daleshire@awattorneys.com Suite 1700 (949) 250-5409 Irvine, CA 92612 P (949) 223-1170 i F (949) 223-1180 ORANGE COUNTY 1 LOS ANGELES 1 RIVERSIDE! CENTRAL VALLEY AWATTORNEYS.COM September 2, 2016 VIA E-MAIL AND U.S. MAIL Noel Weiss, Esq. Law Offices of Noel Weiss 13700 Marina Pointe Drive #922 Marina Del Rey, CA 90292 Via: Electronic Mail and U.S. Mail Re: Request for code interpretation Dear Mr. Weiss: I write in response to your recent request for interpretation in my capacity as City Attorney for the City of Rancho Palos Verdes. In your request under Sections 17.78.050 and 17.90.010 of the Rancho Palos Verdes Municipal Code, you ask that the City Council provide an interpretation of Green Hills' Master Plan and Conditional Use Permit, and the Rancho Palos Verdes Municipal Code, relating to vault storage and rooftop burials at the Inspiration Slope Mausoleum, and the extent of the City Manager's authority to agree to allow storage of burial vaults on the roof of a mausoleum. Interpretation Request Specifically, you ask the following:1 1. Is the roof of the Inspiration Slope Mausoleum currently permitted under the existing CUP for either vault storage or for the interment of human remains? If yes, what provisions in the RPVMC allow for rooftop burials or vault storage? 2. If no, is Green Hills required to amend its Master Plan or its CUP in order to store vaults or conduct burials on the roof of the Inspiration Slope Mausoleum roof, or to obtain a temporary use permit to allow the roof of the Mausoleum to be used as anything other than a roof? 3. May the City Manager authorize storage of vaults on the rooftop of the Inspiration Slope Mausoleum, or does such storage require an amendment of the Master Plan and CUP? 1 I am paraphrasing your questions here. 01203.0025/307862.2 B-1 Noel Weiss, Esq. September 2, 2016 Page 2 Background Green Hills operates a memorial park and cemetery located in the City. Green Hills' operation and development of the memorial park is governed by the 2007 Master Plan, including all later amendments (the Master Plan), and by City Council Resolution No. 2015-12, revising and amending conditions of approval for Green Hills' Conditional Use Permit (CUP) and amending the Master Plan (the Resolution). The Master Plan contemplates the construction of the Inspiration Slope Mausoleum in Area 2 of the memorial park, and further contemplates the possibility of rooftop burials thereon (Master Plan, p. 2-D). Section 17.60.050(B) provides that CUP conditions supersede zoning regulations. The CUP's conditions of approval were revised and updated due to the ongoing controversy surrounding rooftop burials at another of Green Hills' mausoleums, the Pacific Terrace/Memorial Terrace Mausoleum in Area 11. The Resolution amended Green Hills' CUP, which now provides for an administrative substantial compliance review so that, except for improvements consistent with the Master Plan or those subject to the Planning Commission, all improvements must be reviewed by the Director of Community Development to determine if they substantially comply with the Master Plan (Condition 1.k.). Condition 1.k. specifically provides that review of an application for rooftop burials can be performed by the Director. The Director can, at his or her discretion, refer a matter directly to the Planning Commission. Condition 2 of the CUP provides that the following matters are directly reviewable by the Planning Commission: (i) the construction or modification of a mausoleum or other significant building, (ii) any significant change to the grading, (iii) any development of a future phase of Green Hills where the Master Plan has not designated a development plan or uses, or (iv) any amendment to the Master Plan. Thus, while rooftop burials at Inspiration Slope are contemplated in the Master Plan, Condition 1.k. of the CUP now provides that Green Hills may not perform such burials prior to obtaining administrative approval from the Director or the Planning Commission, pursuant to the Resolution. This is the City's current position on the matter of rooftop burials, and this is a matter of public record. Interpretation Provisions of the RPVMC Section 17.78.050 provides, in relevant part, that: In cases of uncertainty or ambiguity as to the meaning or intent of any decision granted in accordance with this title, or to further define or enumerate the conditions of approval of an approved application, an interpretation procedure 01203.0025/307862.2 B-2 Noel Weiss, Esq. September 2, 2016 Page 3 shall be followed whereby the body which took the final action in granting the original application shall conduct an interpretation review of the decision in question. ... The interpretation review procedure shall be applied, but not be limited to the following situations: ... 2. Interpretations of conditions of approval... Section 17.90.010 provides interpretation procedures for, among other things, "cases of uncertainty or ambiguity as to the meaning or intent of any provision of ... Title 17 of this Code, or to further define or enumerate the uses permitted in the various zoning districts. Said interpretations shall be generally applicable to all situations of the same type and shall not be limited or directed to specific parcels or circumstances thereon." The interpretation procedures are intended to permit an administrative process to clear up vagueness or ambiguity in conditions or the Municipal Code, in order to diminish the potential for litigation. However, where an interested party has chosen a litigation route, and where the City has already provided its position on the issues, it is inappropriate to permit the litigant to attempt to create an administrative inconsistency to benefit his case. Issue Overlap with the Litigation Currently, you represent the plaintiffs in two separate but related lawsuits against the City, regarding Green Hills Memorial Park's rooftop burials at the Pacific Terrace Mausoleum.2 Your interpretation request relates to storage of vaults and rooftop burials at Inspiration Slope. While the two matters are distinct, and while vault storage is unique to Inspiration Slope, there is significant overlap in the issues presented by the lawsuits and by your request. Specifically, you are requesting the City provide an interpretation of whether or not any portion of Inspiration Slope allows for vault storage or interment on the roof of the mausoleum, under the Rancho Palos Verdes Municipal Code, the California Health and Safety Code, and Green Hills' Master Plan and CUP. The Complaint makes similar allegations, for example, that "[n]othing in the City's zoning code specifically allows for the interment on the roof of any structure within a cemetery[, and] nothing in state law contemplates the interment of human remains on roof -tops." (Complaint, at ¶ 21, 11.14-16.) The Writ also complains that Green Hills was never specifically allowed roof -top burials. (Writ, at ¶ 13, 11. 8-12, and fn. 6; ¶ 14, 11. 22-26; ¶ 15, 11. 15-19.) The law that you cite in the Complaint and the Writ is much the same as what you cite in the Request for Interpretation, namely, definitions in the Health & Safety Code and 2 Loveys et al. v. City of Rancho Palos Verdes et al., Superior Court Case No. BS 160652 (Petition for Writ of Mandate and for Declaratory and Injunctive Relief) ("Writ"); Loveys et al. v. City of Rancho Palos Verdes et al., Superior Court Case No. BC629637 (Complaint for Damages, Public and Private Nuisance Abatement, and Declaratory Relief) ("Complaint"). 01203.0025/307862.2 B-3 Noel Weiss, Esq. September 2, 2016 Page 4 the City's cemetery zoning ordinance. (Complaint, at IN 7-12; Writ, at p. 12 fn.6; p. 14 fn.7, pp. 18-23). In short, in your letter you engage in a detailed argument relating to what the Master Plan, CUP, and/or Municipal Code should and should not allow with respect to rooftop burials and vault storage. In the Writ and the Complaint, you also allege, in part, that rooftop burials are not permitted by the Municipal Code, the CUP, or the Master Plan. The issue that you are requesting that the Council decide on anew is the issue that you are litigating. Since you have chosen that forum to have the issues decided, it is not appropriate for the City Council to engage in this administrative process at this time. These questions will evidently be largely decided by the court. The administrative interpretation procedure has been infrequently used historically, and never in this situation where the City is in litigation over the same issues. The administrative process is intended to create a forum where confusion can be addressed before litigation results, which appears pointless here. Also, we have not used this process defensively to argue that you have failed to exhaust administrative remedies. We would be happy to engage with you and perhaps utilize an administrative process should you discontinue the litigation approach. We also remain willing to pursue mediation should your clients be willing to contribute to the mediation cost. As always, please feel free to call should you wish to discuss any of the above, or otherwise wish to consider viable alternatives to litigation. Very truly yours, ALESHIRE & WYNDER, LLP David J. Aleshire City Attorney DJA:eqg cc: Doug Willmore, City Manager Ara M. Mihranian, Community Development Director Christina Burrows, Assistant City Attorney 01203.0025/307862.2 B-4