Attachment C - Green Hills Appeal Letter 20141125GF~ESHAM SAVAGE Ellcn.Bcrkow.il1.@CrcshamSavage.com · Los .Angeles
(213) 213-7249 · fm: (213) 2:13-7391
November 25, 2014
VIA EMAIL & HAND DELIVERY
Honorable City Council Members
City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
Re: Green Hills Appeal of the Planning Commission's November 11, 2014
Decision, issued in connection with the Annual Review of Case No.
ZON2003-00086 (Green Hills Master Plan)
Dear Honorable Members of the City Council:
On behalf of Green Hills Memorial Park ("Green Hills11
) and pursuant to City of
Rancho Palos Verdes (the "City11
) Municipal Code (the "Code") Section 17.80.070, this
letter appeals the November 11, 2014 decision of the City's Planning Commission (the
11 Commission11
) as set forth in: (i) P.C. Resolution 2014-29 and (ii) the Commission's
Notice of Decision dated November 12, 2014 (collectively, the "PC Decision11
), issued
in connection with the Commission's aimual review of Green Hills' 2007 Master Plan
Major Conditional Use Permit Revision (the "2007 Major CUP Revision").
While we recognize the Commission's interest in responding to the complaints of
neighbors in the adjacent City of Lomita (which was the original and underlying
impetus for the Commission's annual review), the PC Decision overreached by
purporting to: (i) impose a moratorium on burials and plot sales on the roof of the
Pacific Terrace Mausoleum (the "Mausoleum11
) and (ii) require Green Hills to apply
for a variance to allow the Mausoleum to exist in its current location (notwithstanding
that the City legally approved the Mausoleum's current location nearly eight years
ago and continued to approve plans for its current location up to the building's
construction in 2013). In adopting the PC Decision, the Commission has violated well-
established legal principles, contravened doctrines of fairness and equity, and has
taken positions that are squarely at odds with state law and provisions of the City's
own Code.
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Honorable City Council Members
City of Rancho Palos Verdes
November 25, 2014
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Regrettably, much of the PC Decision appears to stem from staff's and the
Commission's interest in shirking responsibility for past City actions -actions they
apparently now believe were committed in error -by casting Green Hills in the role of
provocateur and by requiring Green Hills to "pay" for its alleged misdeeds through
the imposition of unreasonable and punitive measures. This attempt to rewrite the
past, however, is completely improper, and the Commission's actions as set forth in
the PC Decision are not only illegal and misguided, but also have the potential for
sending the City down a path that endeavors to correct past perceived missteps by
committing new and even more egregious mistakes.
Accordingly, we request that the City Council overturn/reverse the PC Decision in its
entirety. While there are certain provisions of the PC Decision that are acceptable to
Green Hills (notably, certain operational measures designed to reduce potential
impacts on the Lomita neighbors, many of which were in fact proposed by Green Hills
itself), we believe that a de novo review of the entire PC Decision is in order.
The grounds upon which this appeal is based are numerous. Many of them have been
articulated in detailed letters to staff, the Commission, and the City Attorney over the
past 10 months, and we hereby incorporate these letters by reference. Green Hills'
main arguments are summarized below. Additionally, Green Hills reserves the right
to submit additional evidence, information, and arguments in support of this appeal as
the matter moves closer to hearing.
);>-The "Moratorium" Allegedly Adopted by the PC Decision is Invalid and
Inappropriate.
> The PC Decision's "immediate" moratorium failed to satisfy statutory
requirements for an urgency measure and is thus void. The Commission is
under the mistaken belief that it can adopt a resolution that: (i) cites a few
alleged "impacts" to privacy and views, (ii) makes some veiled assertions
about inconsistencies between the conditions of approval and the constructed
building, (iii) claims the need for relief is "immediate" -and voila -declare
that it has enacted a valid moratorium. Not so fast. Not only is this
"immediate" moratorium inconsistent with statutory mandates and the City's
own Code, but it is wholly inappropriate given the nature of the conduct at
issue.
Because moratoria often walk a narrow line between a legitimate governmental
action and constitutionally prohibited taking of private property, California
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Honorable City Council Members
City of Rancho Palos Verdes
November 25, 2014
Page3
state law establishes specific statutory guidelines to protect against the
improper use of moratoria. Specifically, California Government Code §65858,
mandates that a "legislative body shall not adopt ... any interim ordinance
[(i.e., a moratorium)] unless the ordinance contains legislative findings that
there is a current and immediate threat to the public health, safety, or
welfare .... " State law imposes additional stah1tory requirements to ensure
that moratoria -an extreme legislative action that can have serious economic
and other consequences on property owners -are not to be imposed except
under carefully articulated and defined circumstances, and for specifically
proscribed time periods. These requirements were not followed here. Thus, on
statutory grounds alone, the moratorium is illegal and void
> Even if the moratorium were valid, it is not effective immediately. The PC
Decision purports to make the moratorium effective immediately by essentially
stating that it is so, and by citing to an inapplicable Code provision related to
the effect of appeals on development projects. However, the PC Decision
expressly states that the PC Decision is not final if it is appealed. Accordingly,
even if the moratorium were valid, once this appeal is filed, the PC Decision -
including the moratorium -is not in effect.
);> Even if the moratorium were valid and effective, it is inapprnpriate to stop a
lawfully approved use, particularly when other far less draconian measures
could address the alleged harms. If effective, the moratorium would have a
sweeping impact: it would not only stop all sales of Mausoleum rooftop plots,
but it would prohibit burials of individuals who purchased plots with the
expectation that the Mausoleum would be their eternal place of rest. Such a
result would completely undermine and disregard the expectations and
interests of those individuals who purchased plots that were approved and
constructed pursuant to the authority of the City of Rancho Palos Verdes. If
the PC Decision is allowed to stand, it would signal to the community that the
City's word is meaningless.
As discussed above, Green Hills is not insensitive to the complaints of its
Lomita neighbors. Not only did Green Hills voluntarily suggest most of the
operational conditions adopted by the PC Decision, but Green Hills has also
voluntarily implemented the majority of them even though it has not yet been
formally required to do so. The Commission should have allowed for
additional time to determine the effectiveness of the conditions before
declaring the need for such a catastrophic remedy. Moreover, the moratorium
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Honorable City Council Members
City ofRancho Palos Verdes
November 25, 2014
Page4
is completely inappropriate as there is nothing illegat harmful, or
unreasonable about Green Hills' use of its property for typical cemetery uses,
especially where such uses are specifically designated for the property under
state law, the City's zoning code and Green Hills' Master Plan.1 Accordingly,
the PC Decision's efforts to impose a moratorium are invalid, arbitrary and
discriminatory.
)> The PC Decision's Effort to Impose a Moratorium and Require Green Hills to
Apply for a Variance for a Lawfully Approved Building Violates Green Hills'
Constitutionally Protected Vested Rights.
> More than seven years after approving the 2007 Major CUP Revision, the
Commission may not insist that Green Hills obtain a variance for the
Mausoleum. After working with City staff, Green Hills submitted an
application for its 2007 Major CUP Revision to the City in late 2006. The
application included the proposed expansion of the Mausoleum and clearly
depicted the proposed eight foot setback of the building. Staff determined that
the application contained all necessary entitlement requests, and accepted it for
presentation to the Commission. Staff never mentioned that the request
necessitated a "variance."2 After two properly noticed and lengthy public
hearings, at which the project was described using large maps and drawings,
all of which clearly depicted the Mausoleum's layout on the properly, the
Commission approved the 2007 Major CUP Revision. Neither the Commission
nor the City Attorney ever mentioned that the approval necessitated a
"variance." As discussed further below, we believe the variance was not
mentioned for the simple reason that no one -not staff, not the Commission,
and not the City Attorney -believed at the time that a variance was necessary.
In any event, based on the presumed validity of the Commission's approval of
1 To put the Lomita neighbors' complaints into perspective, we note that there are on average
about 3 burial services per month on the Mausoleum root which last (including pre and post
preparation) approximately 1 hour. This means that on average, for about 3 hours each month,
the neighbors hear some noise and observe activity on Green Hills' property across the way.
Given the many intrusions most people residing in cities experience, the relative "disturbance"
for a few hours a month is not substantial and not significantly different from those
disturbances common to all residential neighborhoods. In truth, the extent of the disturbance
is no greater than a neighboring park hosting baseball games a few times a month.
2 Had a variance been required, a failure to so advise Green Hills would constitute a breach of a
mandatory duty owed to Green Hills by the City pursuant to Code §17.60.020.
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Honorable City Cotmcil Members
City of Rancho Palos Verdes
November 25, 2014
Pages
the 2007 Major CUP Revision (including the approval of the Mausoleum) and
the subsequent issuance of building permits by the City's Building
Department, Green Hills constructed the Mausoleum.
> The PC Decision violates Green Hills' vested rights. California law
recognizes that after a property owner has performed substantial work and
incurred substantial liabilities in good faith reliance upon a validly issued
permit, that property owner acquires a vested right to construct and use the
development in accordance with the terms of that permit.3 Here, Green Hills'
construction and operation of the Mausoleum, performed in clear reliance on
its validly issued CUP, establishes a vested right to use and operate the
Mausoleum in accordance with the CUP as previously issued (including for
rooftop burials). The PC Decision, which purports to prohibit Green Hills from
using the Mausoleum roof as approved, as designed, and as constructed,
violates Green Hills' constitutionally guaranteed vested rights.'1
> The PC Decision constitutes a taking of private property without just
compensation. Given that Green Hills has a vested right to reasonably
operate, maintain and sell plots on the Mausoleum roof, the PC Decision to
prohibit further use or sales constitutes the illegal taking of private property
without just compensation in violation of both the Federal and California
constitutions. A California Court of Appeal ruled against the City of Rancho
Palos Verdes in connection with a similar moratorium, advising the City that
"by implementing the moratorium and continuing to prevent [the property
owners] from building on their properties, [the City] 'deprive[dJ [the property
owners'] land of all economically beneficial use."' Monks v. City of Rancho Palos
Verdes (2008) 167 Cal. App. 4th 263, 270. For the City to enact a similar
moratorium in this instance would be to repeat the nearly identical action that
3 See Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 791-799.
See also Malibu Mountains Recreation, Inc. v. Counti; of Los Angeles (1998) 67 Cal.App.4th 359, 367
(the granting of a CUP, with subsequent reliance on that CUP, creates a vested right to
continue the use authorized by the CUP); Stanson v. San Diego Coast Regional Commission (1980),
101 Cal. App. 3d 38, 49 (an owner of property acquires a vested right to construct a building
where the conduct of the government amounts to a representation that such construction is
fully approved and legal, and in reliance on such representation the owner materially changes
position).
4 Such protections also apply to the use of all burial plots, both sold and unsold. See Citt; of W.
Hollywood v. Beverly Towers, Inc. (1991) 52 Cal.3d 1184, 1189.
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Honorable City Council Members
City of Rancho Palos Verdes
November 25, 2014
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was the subject of a multi-year legal battle, one that the City ultimately lost; in
that case, the court required the City to pay the property owners $4.25 million
in damages and allow them to go forward with the construction that had been
the subject of the moratorium. The PC Decision threatens to put the City on a
similar course.
)-The PC Decision's Effort to Require Green Hills to Apply for a Variance
Violates the City's Municipal Code and Constitutes an Abuse of Discretion.
~ When Green Hills originally applied for the 2007 Major CUP Revision, the
City did not mention the need for a variance because none was required
based on the express terms of Green Hills' existing variance and the City's
Municipal Code. Although largely ignored by the Commission, the fact is that
Green Hills has already received a variance which explained how Green Hills
was to process further revisions to the Master Plan. Variance No. 262, which
was approved in connection with Green Hills' original Master Plan and its 1991
Conditional Use Permit plainly states that 11[a]11y development beyond that
depicted in the Master Site Plan... shall require submittal of a major
Conditional Use Permit Revision." Throughout the Commission's approval of
the 2007 Major CUP Revision, this mandated procedure was strictly followed,
and the CUP was properly processed and approved consistent with those
mandates. As Green Hills' existing variance did not require it, no new or
additional variance was necessary.
This procedure is also consistent with the express terms of the City's Code,
which provides that a variance is not required to modify setbacks for
properties that are subject to a CUP. (See Code §17.60.50(A)(6)(a) "[Conditions
of a CUP] shall take precedence over development standards otherwise
required by the underlying zoning of the subject site.") Thus, conditions
granted or imposed by CUP, including those relating to setbacks, take
precedence over the /1 development standards otherwise required by the
underlying zoning," confirming that no additional variance was required for
the Commission to approve Green Hills's 2007 Major CUP Revision.
The City Attorney now claims neither of these provisions is applicable to Green
Hills' sihrntion, and that a variance is required for the reduced setback. If so,
then someone at the City -whether staff, the Commission or the City Attorney
-should have mentioned that rec1uirement at some point during the approval
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Honorable City Council Members
City of Rancho Palos Verdes
November 25, 2014
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process for the 2007 Major CUP Revision. For these individuals to sit silently
and acquiesce to the processing of the 2007 Major CUP Revision without ever
once even suggesting the alleged need for a variance, particularly if the need
was as plainly obvious as they now claim, only to fault Green Hills for not
obtaining a variance, is arbitrary, capricious, and unreasonable.
);-If the City nonetheless insists it erred by not requiring a variance, the City
may process one pursuant to Code Section 17.64.0SO(B). The Commission
may not re-write history by simply "erasing" its prior approval of the
reduced setback and pretending it never took any such action. If the City
believes it erred in not requiring a variance in connection with the 2007 Major
CUP Revision, it has the ability to process one on its own accord pursuant to
Code Section 17.64.050(8).5 This Code section is plainly intended to address
instances and issues of this exact nature. Instead of pursuing this option,
however, the Commission has tried to re-write history, by effectively "erasing"
its approval of the reduced eight foot setback for the Mausoleum in the PC
Decision, and substituting a new 40 feet setback requirement. This effort to
close its eyes and pretend its prior approval never existed defies logics and
constitutes an abuse of discretion.
)> The PC Decision is Improper and Unenforceable Based on Equitable Principals
of Estoppel and Laches.
)> The City is estopped from enforcing the PC Decision. As a fundamental
matter, it is understood that "[w]hen the government tells you something, you
should be able to rely on it, and if the government changes the applicable rules
after its representation to you and your reliance in good faith to your
detriment you should not be subject to the changed rules, and instead should
be held only to the rules applicable when the government's representation and
your reliance occurred."6 Here, consistent with the Code, the City approved
the 2007 Major CUP Revision for the Mausoleum and issued building permits
5 See Code §17.64.0SO(B) -Findings. A variance may also be granted if the applicant
demonstrates significant error in any order, requirement, permit, decision or determination
made in the administration or enforcement of this title or any ordinance adopted pursuant to it
and the applicant has commenced construction in reliance upon the error. If a variance is
granted under this subsection B, required filing fees may be waived pursuant to the fee waiver
provisions described in Section 17.78.010 (Miscellaneous) of this title.
6 3 Local Government Law§ 16:64.
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Honorable City Council Members
City of Rancho Palos Verdes
November 25, 2014
Page 8
after multiple public hearings and plan checks. For seven years, the City has
treated the 2007 Major CUP Revision as validly issued, fully approved and
operativei the City knew and intended that Green Hills would rely on
subsequent approvals and permits granted in relation to the CUP. Based on
these principles, the City is estopped from enforcing the PC Decision and
requiring Green Hills to apply for a variance.
~ In the event Green Hills were to seek a variance, the City also would be
estopped from denying it. Because of the City's prior actions approving the
2007 Major CUP Revision and the Mausoleum, the City could not now deny a
variance to allow the Mausoleum even if Green Hills were to file such an
application. In other words, based on the principles articulated above relative
to vested rights, estoppel and !aches, if Green Hills applied for a variance, the
City would have no choice but to approve it.7 For that reason, any efforts
related to a consideration of a variance by the City would be idle. It is a well-
settled maxim of jurisprudence that that the law does not require idle actsi
likewise, equity does not require idle gestures.8 In view of the City's inability
to deny the variance under these circumstances, it makes little sense to require
Green Hills to apply for one.
~ The PC Decision is barred and unenforceable based on the equitable
principle of !aches. After being approved more than seven years ago, the
principle of laches bars the PC Decision and its requirement that a variance be
sought in connection with the modified setbacks. The law recognizes that
laches will apply to prohibit a City's enforcement action where there has been
an "unreasonable delay plus either acquiescence in the act about which [the
City now] complains or prejudice to the [property owner] resulting from the
delay." Johnson v. City of Loma Linda (2000) 24 Cal.4th 6L 68.9 Here, the City's
delay in "enforcing" what it now believes it should have done seven years ago
(i.e., require a variance) is unreasonable to both Green Hills and its patrons.
7 See Anderson v. City of La Mesa (1981) 118 CA.3d 657 (local government estopped from
denying after the fact variance).
8 California Civil Code§ 3532; See also Murphy v. New Milford Zoning Corn'n (2d Cir. 2005) 402
F.3d 342, 350Citing Lucas v. South Carolina Coastal Council, (1992) 505 U.S. 1003, 1012 n. 3 (stating
that an application for a variance is not required when it would be "pointless").
9 See also CihJ and CounhJ of San Francisco v. Pacella (1978) 85 Cal.App.3d 637 (court deemed
zoning administrator's eight year delay in pursuing enforcement action unreasonable and
prejudicial and as such, barred by !aches).
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Honorable City Council Members
City of Rancho Palos Verdes
November 25, 2014
Page 9
After approving Green Hills' 2007 Major CUP Revision, and after subsequently
issuing several building and grading permits, CUP revisions, and other
approvals, all in reliance on the seven year old CUP, the City may not now
undermine the validity of the 2007 Major CUP Revision by requiring Green
Hills to apply for a variance.
* * * *
As noted, Green Hills expressly reserves the right to augment the record of this appeal
with additional information prior to the City Council hearing. We look forward to the
opportunity to present Green Hills' entire position on the issues in a new forum that
endeavors to find positive and productive solutions to this matter.
Very truly yours,
Ellen Berkowitz, of
GRESHAM SAVAGE
NOLAN & TILDEN,
A Professional Corporation
EB:DFF
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