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Attachment E - Green Hills Letter 20150901Gl~ESHAM SAVAGE Ellen.Berkowitz@GreshamSavage.com · Los Angeles (213) 213-7249 · fax (213) 213-7391 September 1, 2015 VIA EMAIL Honorable City Council Members City of Rancho Palos Verdes 30940 Hawthorne Blvd. Palos Verdes, CA 90275 Re: Green Hills Memorial Park Appeal of Planning Commission Decision Regarding Annual Compliance Review (Case No. ZON2003-00086) Dear Honorable Members of the City Council: On behalf of Green Hills Memorial Park ("Green Hills"), thank you for your consideration of Green Hills' appeal of the Planning Commission's November 11, 2014 decision. We have reviewed the Staff Report issued in connection with the appeal hearing, and have several comments on: (1) the proposed requirement to obtain an after-the-fact variance for the Pacific Terrace Mausoleum (the "Mausoleum"); and (2) the suggested modifications to the proposed conditions of approval (the "Conditions"). These issues are briefly discussed below. I. The Variance. Green Hills' objections to the requirement to apply for a variance have been set forth in previous correspondence to the Planning Commission and to this City Council, including in Green Hills' November 25, 2014 appeal; these objections are hereby incorporated by reference. In this letter, we respond only to the three reasons articulated by Staff for rejecting Green Hills' objections. A. 1991 Master Plan Condition No. 4 Required New Development to be Approved via a Major Conditional Use Permit Revision. Condition No. 4 of the 1991 Conditions of Approval simply states "[A]ny development 550 East Hospitality Lane, Suite 300 • San Bernardino, California 92408 3750 University Avenue, Suite 250 • Riverside, California 92501 550 West C Street, Suite 1810 •San Diego, California 92101 333 South Hope Street, 35 1 " Floor• Los Angeles, California 90071 GrcshamSavage. com 0583-000 --1758008. I Attachment E - 1 Honorable Members of the City Council City of Rancho Palos Verdes September 1, 2015 Page 2 beyond that depicted in the Master Site Plan referenced in Condition No. 1 shall require the submittal of a major Conditional Use Permit Revision." The Mausoleum, proposed as part of Green Hills' 2007 Master Plan Revision," constituted "development beyond that depicted in the Master Site Plan referenced in Condition No. l." By its terms, the 1991 Master Plan therefore required Green Hills to apply for a Major Conditional Use Permit Revision for any new development. Green Hills did so. While Staff may now claim that the 1991 Master Plan had intended to reference other conditions (i.e., Condition No. 2), or that Conditions No. 1 and 4 were not intended to apply to setbacks, the fact of the matter is -Condition No. 4 says what it says. Green Hills followed the express requirements of the 1991 Master Plan by applying for a Major Conditional Use Permit Revision in connection with its 2007 Master Plan Revision. If the City intended Green Hills to also apply for a variance, it should have said so more than eight (8) years ago. B. The Municipal Code Provides that Conditions Take Precedence Over Other Development Standards. As quoted in the Staff Report, the City's Municipal Code (the "Code") provides that conditions granted via conditional use permits "shall take precedence over development standards otherwise required by the underlying zoning of the subject site." (Staff Report at pg. 4, quoting Code Section 17.60.050B). Staff now claims this provision was only intended to apply when "more stringent development requirements" are approved, but not when less stringent development standards are approved. Once again, the Code section says what it says: It does not reference more stringent or less stringent standards -it refers to all conditions. A time-worn legal adage known as the "plain meaning rule" provides that laws are to be interpreted according to their plain language. Interpretations may not be read into statutes if the language of the statute, as here, is clear on its face. Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735. This interpretation does not nullify all of the requirements regarding variances, as the Staff Report claims. Rather, it provides that in certain situations -for example, when the City is already granting a discretionary approval, such as a conditional use permit -the City will not require the applicant to apply for a second and largely duplicative variance approval. Many cities have similar provisions. Nevertheless, if the City believes this Code section is too expansive, then the City Council should take steps to amend the language to contain the "more stringent development requirements" limitation Staff would like it to say. G583-000 --1758008. l Attachment E - 2 Honorable Members of the City Council City of Rancho Palos Verdes September 1, 2015 Page 3 C. The Filing of the Application is a Futile Act . .. Green Hills has advised that the filing of a variance for the Mausoleum would be a futile act. Staff disagrees, claiming that the variance application would not be futile because the City may grant or deny the variance. Staff misinterprets the point here. True, the City could grant or deny the variance, but if the City denied the variance and the City's denial were challenged in court, the City's denial would not stand. Therefore, it is futile to engage in the exercise of applying for a variance when the end result -no matter whether the City grants or denies the variance -would be that a court would rule in Green Hills' favor based on principles of estoppel, laches and vested rights. II. Comments on Conditions. For ease of reference, our comments follow the order and the numbering of the Conditions in the Staff Report. Condition No. 1.£: Application for Variance/Restriction on Additions. • Green Hills has no objection to Staff's suggested modification, although as explained above, Green Hills continues to object to the requirement to apply for a variance. Condition No. 1.i: Family Estates. • Green Hills has no objection to Staff's suggested modification, except for the last sentence of this Condition, which prohibits family estates on the rooftops of any mausoleum buildings. The term "family estates" generally refers to an area reserved for the burial of a group of persons related by blood or marriage. We do not believe the City intends (nor would the City have the legal authority under State law) to prohibit persons related by blood or marriage to be buried in close proximity to one another. Rather, we expect the intent of this restriction is to limit above-ground structures that may impact views. Accordingly, Green Hills requests that this last sentence be stricken or revised so as not to interfere with the rights of family members to be buried near one another in a reserved area. Condition No. l.j: Preparation of Ground Burial Sites. • Green Hills has no objection to this Condition. G583-000 --l 758008. l Attachment E - 3 Honorable Members of the City Council City of Rancho Palos Verdes September 1, 2015 Page4 Condition No. 1.k: Review of Mausoleum Buildings. • Green Hills has no objection to Staff's suggested modification. Condition No. 1.1: Small Accessory Buildings. • Green Hills has no objection to this new Condition. Condition No. 1.m: Customary Cemetery-Related Features. • Green Hills has no objection to this new Condition, although it requests the addition of niches, columbaria and sarcophagi. (For reference, sarcophagi are box-like funeral receptacles, most commonly carved in stone, and displayed above-ground, though they may also be buried.) Condition No. 1.3.c: Limitation on Vegetation. • Green Hills has no objection to Staff's suggested modification. Condition No. 1.3.e: No Expansion of Mausoleum without Planning Commission Approval. • Green Hills has no objection to Staff's suggested modification. Introduction to Condition Nos. 1.3.f through 1.3.o. • Green Hills has no objection to Staff's suggested modification. Condition No. 1.3.f: Burial Preparation. • Green Hills has no objection to Staff's suggested modification. Condition No. 1.3.h: Limitation on Use of Mini-Haul. • Green Hills has no objection to Staff's suggested modification. Condition No. 1.3.l: Flagging of Upcoming Burials. • Green Hills has no objection to Staff's suggested modification. Old Condition No. 1.3.n: Sales of Additional Plots. 0583-000 --l 758008. l Attachment E - 4 Honorable Members of the City Council City of Rancho Palos Verdes September 1, 2015 Page 5 • Green Hills has no objection to Staff's suggested deletion of this proposed Condition. Re-numbered Condition No. 1.3.n: No Interments Within 16-Feet. • Green Hills objects to this Condition, and requests approval to use plots 540- 553, provided it complies with all operational Conditions imposed by this Council. New Condition 1.3.o: Limitation on Number of Burials. • Green Hills has no objection to Staff's suggested modification. Condition No. 2: Reference to September l, 2015 City Council Action. • Green Hills has no objection to Staff's suggested modification. Condition No. 6: Reference to Plots in the Northwest Corner. • Green Hills has no objection to Staff's suggested modification, but see comments under Condition 53. Condition No. 7: Setbacks for Mausoleum. • Green Hills objects to the reference to the setback for the Mausoleum as "40- '0"." The Mausoleum, as it currently exists today, is not 40 feet from the property line, nor was it approved at 40 feet from the property line in 2007 or in any of the building permits authorizing its construction that followed. The fact of the matter is that the City previously approved the Mausoleum to be located 8 feet from the property line, and cannot undo that approval (and the building permits that followed) for a building that has already been constructed in reliance on those permits. The same objection applies to Condition 8 and Ba. Condition No. 37: Approval of Retaining Wall. • Green Hills has no objection to Staff's suggested modification. Condition No. 38: Clarification of Height Measurement. • Green Hills has no objection to Staff's suggested modification. G583-000 --l 758008. l Attachment E - 5 Honorable Members of the City Council City of Rancho Palos Verdes September 1, 2015 Page 6 Condition No. 52: Submittal of Maps. • Green Hills continues to object to this proposed Condition, but will agree to comply. Condition No. 53: Variance for Existing Burials in the Northwest Corner. • Green Hills objects to this Condition because, as discussed in previous submittals, the City already approved a variance for burials within the Northwest Corner as part of the 1991 Master Plan Conditional Use Permit as set forth in Condition 6. Therefore, rather than apply for a new variance, Green Hills can submit an application for a modification to Condition 6. Specifically, Condition No. 6 currently provides that setbacks for below ground interments on the north and south are "8'0" (except for the northwest corner between the western property line and maintenance yard, which shall be 16'0")." Green Hills proposes that this language be further amended as follows: North and South: 8'0" (except for the northwest corner between the western property line and maintenance yard, which shall be 16'0" and except for the 13 interments and 6 companion plots existing in the northwest corner as of September l, 2015, which shall be 8'0"). • Thus, Green Hills does not object to the submittal of a request to approve the existing burials within the 16 foot setback as suggested by Staff; it simply objects to the form of the request. Condition No. 54: Verification of Setback along Western Property Line. • Green Hills has no objection to Staff's suggested modification. Condition No. 55: Submittal of Variance Application. • For the reasons detailed above, Green Hills objects to the requirement to apply for a variance relative to the Mausoleum's setback. * * * * 0583-000 --1758008.1 Attachment E - 6 Honorable Members of the City Council City of Rancho Palos Verdes September 1, 2015 Page 7 Thank you for the opportunity to comment on the proposed Conditions. We will be available tonight to answer any questions you may have. Very truly yours, Ellen Berkowitz, of GRESHAM SAVAGE NOLAN & TILDEN, A Professional Corporation EB: 0583-000 --1758008.1 Attachment E - 7