HomeMy WebLinkAboutAgenda Statement 1972/06/13 Item 05~ _.
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Staff Commentary on Agenda Item No. 5
CHULA VISTA CITY COUNCIL MEETING OF June 13, 1972
Item Title: Resolution - Opposing AB 1740 which creates the California Zoning
Board of Appeals
Initiated by : Director of P1 anni ng
Attached is a copy of Resolution [ x] Ordinance [ ] Agreement [ ] Plat [ ]
Background:
This bill would create a California Zoning Board of Appeals consisting of 8 members
appointed by the Governor to hear and decide appeals from local zoning decisions.
Provisions of this bill would be applicable to chartered and general law cities and
counties.
The board would be empowered to hear and decide appeals from local level zoning
decisions in accordance with the provisions of the bill and applicable rules and
regulations that the board may establish. The board would not be bound by findings
of fact of local zoning authorities but would be required in rendering its decision
to present its findings of fact which would be supported by substantial evidence
on the whole record. The bill delineates the grounds under which the board would
reverse a local decision.
The members of the board shall be as follows:
1. Two representatives of local government, one of whom shall be nominated by
the League of California Cities and one of whom shall be a member of a
local planning agency.
2. Two representatives of tenants' organizations.
3. One developer of low-income housing.
4. One person engaged in the construction of residential housing.
5. Two representatives of the planning field, at lease one of whom shall be
from an accredited university or college.
A copy of the bill is attached.
See EXHIBITS [x) No.l-2
Financial
Statement:
Commission-Board
Recommendation : P1 anni ng Commission recommends that the City Counci 1 oppose
this proposed assembly bill.
Department Head
Recommendation : Concur.
City Manager
Recommendation: Concur
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C~~LII~ORNIA 1.{?GIS1.:ITURF: 1972 Rh:CUI.AII SESSION
ASS~l0I~3L~~ ~3II,L IVo. 1740
Introduced by Assemblyman Brathwaite
March 15, 1972
REFERRED TO CO?~f~1ITTEE ON PLANNING AND LAND USr:
An act to amend Section 65803 of, and to add Article 1.5
(commencing with Section 65830) to Chapter 4 of Title 7of,
the Government Code, relating to planning and zoning.
LEGISLATIVE COUNSEL'S DIGEST
AB 1740, as introduced, Brathwaite (P. & L.U.). Planning
and zoning.
Creates the California Zoning Board of Appeals, consisting
of eight members appointed by the Governor, to hear and
decide appeals from local zoning decisions. Prescribes powers
and procedures of board and rights of appeal. Provides that
provisions are applicable to chartered and general law cities
and to counties.
Vote-Majority; Appropriation-No; Fiscal
Committee-Yes.
The people of the. State of California do enact as follows.•
1 SECTION 1. Section 65803 of the Government Code is
2 amended to read:
3 65803. The provisions of this chapter except those
4 contained III Article 1.5 (COII1r71e11c111g ~t~ith Section
5 65830) shall not apply to a chartered city, except to the
6 extent that the same may be adopted by charter or
7 ordinance of the city.
8 SEC. 2. Article L5 (commencing with Section 65830)
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AB 1740 ,_ 2 `
1 is added to Chapter 4 of Title 7 of the Government Code,
2 to read:
3
4 Article 1.5. California Zoning Board of Appeals
5
6 65830. There is hereby created the California Zoning
7 Board of Appeals, consisting of sight members, which
8 shall exercise all the powers vested in it under this code.
9 The men2bers of the appeals board shall be a
10 the Governor, pursuant to Section 65831 andp ubj~ d boy
11 the consent of the Senate. All members shall be selected
12 with due consideration of their skill 2<nd experience in the
13 matters under the jurisdiction of the appeals board.
14 Members shall serve without pay, except for reasonable
]5 traveling expenses. The Governor shall designate the
16 chairman of the appeals board from its membership. The
17 person so designated shall serve as chairman at the
18 pleasure of the Governor. The chairman shall designate
19 in writing one of the other members of the appeals board
20 to act as chairman in his absence.
21 65831. (a) Each member of the appeals board shall
22 serve for a term of four years and ~antil his successor is
23 appointed and qualifies; provided, however, that of the
24 members first appointed under this article two shall be
25 appointed for terms .which shall expire July 1, 1974, and
26 one shall be appointed for a term which shall expire July
27 1, 1975.
28 Vacancies shall be filled for the remainder of an
29 unexpired term by appointment of the Governor, subject
30 to the approval of the Senate.
31 (b) The members of the board shall be as follows:
32 (1) Two representatives of local government, one of
33 whom shall be nominated by the League of California
34 Cities and oiie of whom shall be a member of a local
35 planning agency.
36 (2) Two representatives of tenants' organizations.
37 (3} One developer of low-income housing.
38 (4) One person engaged in the construction of
39 residential housing.
40 (5) Two representatives of the planning field, at least
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ASS
1 one of tivhom shall be from an accredited university or
2 college.
3 65832. (a) The board is empowered to hear and
4 decide appeals from local level zoning decisions filed
5 according to the provisions of this chapter and the
6 applicable rules and regulations the board may establish.
7 In exercising its power under this chapter the board shall
8 not be bound by findings of fact of local zoning
9 authorities, but shall be required in rendering its decision
10 to present its findings of fact which shall be sLrpported by
11 substantial evidence on the ~~hole record.
12 "Local le~~el zoning decisions" shall include the zoning
13 decisions of county authorities having jurisdiction over
14 property as well as zoning decisions of municipal
15 governments.
16 (b) In carrying out the provisions of this part and in
17 considering an appeal, the board shall consider and
18 encourage regional zoning and planning with emphasis
19 on the development of love- and moderate-income
20 housing. In keeping with its purpose, the board may
21 refuse to consider those appeals that it determines are not
22 within the purview of these provisions.
23 65833. It shall constitute satisfactory grounds for
24 reversal of a decision of a local zoning authority if the
25 board finds the local authority's decision:
26 (a) Was arbitrary, capricious, an abuse of discretion, or
27 not otherwise in accord with law.
28 (b) Excluded a class of residential uses or persons from
29 a municipality when the municipality had not, itself or by
30 agreement with other municipalities in its area,
31 otherwise made reasonable provision for such uses or
32 persons.
33 (c) Was made without regard to the need for balanced
34 development of an adequate provision for commercial,
35 industrial, recreational, and open space uses in the region
36 in which the municipality is located.
37 (d) Was grounded in consideration of the
38 municipality's health, safety or general welfare when:
39 (1) Alternative methods existed to deal with the
40 health, safety or general welfare hazard to which the
OI7M1 217«~«, 22
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AB 1740 ,. 4 ._
1 Inutlicipc.lity objected.
2 (2) The objection is based upon a current or
3 anticipated lack of municipal services when such services
4 would have to be increased from their present level to
5 handle an increase in the municipality's population.
6 .65834. The following persons, upon showing that all
7 local appeal procedures have been exhausted, shall be
8 eligible to petition the board for review: (a) the `~
9 developer of the property affected by the localLOnIIlg
10 decision; (b) the owner of the property affected by the
11 local zoning decision; (c) any governmental unit affected
12 in any way by the local zoning decision; and (d) any
13 person who on written application the board deems
14 eligible to appeal.
15 65835. The party submitting a dispute to the board for
16 its decision shall pay a filing fee of ;provided,
17 however, that the board may, in its discretion, waive the
18 filing fee in appropriate cases for good cause.
19 65836. The appeals board, acting as a whole, may
20 promulgate, amend or rescind rules pertaining to hearing
21 appeals and other matters falling within its jurisdiction )
22 which are not inconsistent with this article. All such rules,
23 amendments thereto or repeals thereof shall be made in
24 accordance with the provisions of Chapter 4.5
25 (commencing with Section 11371) of Part 1 of Division 3
26 of Title 2.
27 65837. The board may:
28 (a) Charge and collect the following fees: Far copies of
29 papers and recol-ds, not required to be certified or
30 otherwise authenticated by the board, seventy-five cents
31 ($0.75) for each page in addition to any copy charge if
32 copies are made by the board; for transcripts of
33 testimony, one dollar ($1) for each page for all copies. As
34 used in this paragraph, "page" means a single page not
35 exceeding standard legal size. For larger pages the board
36 may fit and collect a reasonable fee in addition.
37 (b) Publish and distribute from time to time reports
38 and pamphlets covering its operations, proceedings and
39 matters relative to its work.
40 (c) Prepare, publish, and distribute an office manual,
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5 - AB 1740
1 for which a reasonable fee may be charged, and to which
2 additions, deletions, amendments and other changes
3 from time to time may be adopted, published and
4 distributed, for which a reasonable fee may be charged
5 for such revision, or for which a reasonable fee may be
6 fixed on an annual subscription basis.
i 7 (d) Fix and collect reasonable charges for publications
8 issued under its authority.
9 65838. The board shall hold at least 12 regular
10 meetings each calendar year and such additional
11 meetings as shall be called by the chairman or requested
12 by any two other board members. All meetings of the
13 board, except for the purpose of judicial deliberation of
14 cases, shall be open and public. The board may hold
15 hearings anywhere in the state, provided that adequate
16 notice is given and shall endeavor to hear disputes in or
I7 near the area where the dispute occurs. Notice of the
18 tune and place of a hearing of a case shall be given to any
19 parties requesting such notice at least 15 days prior to
20 such hearing.
21 65839. The principal office of the board shall be in
22 Sacramento, and the board shall also have an office in the
23 Cit}~ of Los Angeles and provide itself with suitable
24 rooms, necessary office furniture, stationery and supplies.
25 The board may rent quarters in other places for the
26 purpose of holding sessions or establishing branch offices,
27 and for that purpose may provide itself with necessary
28 furniture, stationery and supplies.
29 65840. 1lTO vacancy shall impair the right of the
30 remaining board members to exercise the powers of the
31 board; provided, however, that a majority of the board
32 shall constitute the quorum necessary to exercise the
33 powers of the board. Any investigation, inquiry or
34 hearing which the board has power to undertake or to
35 hold may be held by or before any board member
36 design~lted for such purpose by the board.
37 65841. The board and each of the members, and any
38 assistants cr secretaries to whom the board may delegate
39 such powers, may administer oaths, certify to all official
40 acts, and issue subpoenas for the attendance of witnesses
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AB 1740
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1 and the production of papers, books, accounts,
2 documents and testimony in any inquiry, investigation,
3 hearing or proceeding in any part of the state.
4 65842. All hearings, investigations, and proceedings of
5 the board shall be governed by this part and by rules of
6 practice and procedure adopted by the board, and in the
7 conduct thereof the technical rules of evidence need not
8 be applied. No informality in any hearing, investigation,
9 or proceeding or in the manner of taking testimony shall
10 invalidate any order, decision or rule made, approved or
11 confirmed by the board.
12 65843. ,The board may compel the attendance of
13 witnesses, the giving of testimony and the production of
14 papers, including books, accounts and documents, by
15 obtaining a subpoena for such purpose in any appropriate
16 superior col:rt. In case of the refusal of any witness to
17 obey such subpoena, the board may report to the superior
18 court by petition, setting forth that due notice has been
19 given of the time and place of attendance of the t~itness,
20 or the production of papers, that the witness has been
21 subpoenaed in the prescribed manner and that the
22 witness has failed and refused to obey the subpoena, or
23 has refused to answer questions propounded to hirrr in the
24 course of such proceeding, and ask an order of the court
25 compelling the witness to attend and testify or produce
26 the papers before the board. The court shall thereupon
27 enter an order directing the witness to appear before the
28 court at a time and place fixed in such order, the time to
29 be not more than 10 days from the date of the order, and
30 then and there show cause why he had not attended and
31 testified or produced the papers before the board. A copy
32 of such order shall be served on the witness. If it appears
33 to the court that the subpoena was regularly issued
34 hereunder and that the witness was legally bound to
35 comply therewith, the court shall thereupon enter an
36 order that the witness appear before the board at a time
37 and place fixed in such order, and testify or produce the
38 required papers, and upon failure to obey the order, the
39 witness shall be dealt with as for contempt of court.
40 65844. Any notice or order required by this chapter to
017(1 217N175 29
- 7 - AB 1740
1 be served upon any person either before, during or after
2 the institution of any proceeding before the board, may
3 be served in the manner provided by Chapter 5
4 (commencing with Section 1010) of Title 14 of Part 2 of
5 the Code of Civil Procedure, unless otherwise directed by
6 the board or any member thereof. In the latter event the
' 7 document shall be served in accordance with the order
8 of direction of the board or a member.
9 65845. Each witness who appears by order of the
10 board or a member thereof shall receive, if demanded,
11 for his attendance the same fees and mileage allowed to
12 a witness in civil cases, paid by the party at whose request
13 such witness is subpoenaed, unless otherwise ordered by
14 the board. When any witness who has not been required
' 15 to attend at the request of any party is subpoenaed by the
16 board, his fees and mileage shall be paid from the general
17 funds of the board in the same manner as other expenses
18 of the board are paid.
19 65846. Any person affected b}' an order or decision of
20 the board may, within the time limit specified in this
21 section, apply to the Supreme Court or to the court of
22 appeal for the appellate district in which dispute
23 originated for a writ of review, for the purpose on
24 inquiring into and determining the lawfulness of the
25 original order or decision. The application for writ of
26 review must be made within 30 days after the date of the
27 board's decision or order.
28 65847. The review by the court shall not be extended
29 further than to determine, based on the entire record
30 ~~hich shall be certified by the board, whether:
31 (a) The board acted without or in excess of its powers.
32 (b) The order or decision was procured by fraud.
33 (c) The order or decision was unreasonable.
34 (d) The order or decision was not supported by
35 substantial evidence.
36 (e) If findings of fact are made, such findings support
37 the order or decision under review.
38 Nothing in this section shall permit the court to hold a
39 trial de novo, to flake evidence, or to exercise its
40 independent judgment on the evidence.
OI7M1 217A1H5 JI
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AB 1740
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1 65848. The findings and conclusions of the board on
2 questions of fact are conclusive and final and are not
3 subject to review. Such questions of fact shall include
4 ultimate facts and findings and conclusions of the board.
5 The board and each party to the proceeding before the
6 board shall have the right to appear in the review
7 proceeding. Upon the hearing, the court shall enter
8 judgment either affirming or reversing the board's order
9 or decision, er the court may remand the case to the
IO board for further proceedings.
11 65849. The provisions of the Code of Civil Procedure
12 relating to the writs or review shall, so far as applicable,
13 apply to proceedings in the courts under the provisions
14 of this chapter. A copy of every pleading shall be served
15 on the board and upon every party who entered an
16 appearance in the action before the board whose interest
17 is adverse to the party filing the pleading.
18 65849.1. No court of this state except the Supreme
19 Court and the courts of appeal as specified in this chapter
20 shall have jurisdiction to review, reverse, annul, suspend,
21 or correct any order, ruling, or decision of the board, or
22 to suspend or delay the execution thereof, or to restrain,
23 enjoin or interfere with the board in the performance of
24 its duties but a writ of mandamus shall lie from the
25 Supreme Court or a court of appeal in all proper cases.
O