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07-30-79 agendaCITY OF RICHFIELD, MINNESOTA Office of City Manager Council Letter No. 228 Agenda July 30, 1979 The Honorable Mayor and Members of the City Council -7 4 ; City of Richfield Council Members: Subject: Authorization to Retain BRW to Supervise Heyman Addition Boulevard Improvement Project There is an item on the July 30, 1979 city council agenda requesting council authorization to retain BRW to supervise the construction of sidewalk and landscaping improvements planned for the Heyman Addition area of the L/H/N improvement project. Boulevard improvements, including sidewalk and landscaping, and the civic plaza area, are to be completed on the north side of West 66th Street and the east side of Lyndale Avenue, bordering the K-Mart site. On June 25, 1979, the city council awarded a contract to Victor Carlson and Sons, Inc. to construct these improvements. Construction supervision services for the work in progress on 65th Street, 66th Street, First Avenue, and Nicollet Avenue, in the L/H/N project area are currently provided by Hennepin County. Under terms of the cooperative construction agreement which Richfield signed with the county in June, 1976, Hennepin County has provided the inspections, coordination, and surveys required to reconstruct the city and county streets within the project area. That agreement, however, does not include the Heyman Addition and Lyndale Avenue improvements. The developer's agreement between the HRA and the K-Mart developer provides that construction of the Heyman Addition sidewalk and boulevard improve- ments must be completed this year. The firm of Bather-Ringrose-Wolsfeld, Inc., has submitted a proposal to provide the construction supervision services for the Heyman Addition boulevard improvements and the civic plaza area construction. This proposal provides that BRW will bill the city for the actual hours needed on the site to manage and supervise the construction work. The proposal submitted by BRW indicates that the anticipated construction supervision costs will amount to approximately 60 of the construction cost, or less than $13,000. This amount is about 50% less than the county's cost would be to extend their construction supervision services to the Heyman Addition work. Council Letter No. 228 -2- July 30, 1979 It is the recommendation of the Acting Public Works Director, and the Planning and Redevelopment Director, in which I concur, that the city council authorize BRW to proceed with Phase IV, Implementation of Urban Improvements, to accomplish the design objectives and construction and supervision work associated with construction of the Heyman Addition boulevard improvements, City Project No. 742. Respectfully submitted, Karl Nollenberger City Manager KN/ e j a cc: Acting Public Works Director Planning & Redevelopment Director ?J 0 Y 7.3 r? zal %!?y 3?/?/•24i• ???L ? ??.f`?o -cf' 7d2/5 ????`?/ G%?`e: ? . Z a -by C, n 7) --- ?? -Z 411V 4-11? ? ? ems' • 7 ?. ?{??I.?...d? ?'? REGENED JUL 25 1979 Richfield City Manager A1hr 4 CITY OF RICHFIELD, MINNESOTA Office of City Manager Agenda July 30, 1979 Council Letter No. 227 The Honorable Mayor and Members of the City Council City of Richfield Council Members: Subject: Planning Commission Presentation and Discussion of Amendments to the Residential Portions of the Zoning Ordinance and Concept of Board of Adjustment and Appeals The planning commission requested the meeting with the city council which is scheduled for July 30, 1979 for the purpose of discussing two specific issues: 1. Amendments to the residential portions of the zoning • ordinance; 2. Organization of the Board of Adjustment and Appeals. The commission has been studying both of these issues for some time, first in subcommittee and then as a full commission. The purpose of the July 30 meeting is to develop a general discussion between the council and planning commission on these issues and to request that the city council provide general policy direction regarding these matters so that the planning commission can develop a final recommendation. Residential Amendments The planning commission will provide general background on proposed changes to the residential zoning ordinance, describe their reasons for proposing the changes and the intent of the proposed changes. Conservation of existing residential character- istics of the city, through zoning, is the primary theme of the planning commission's presentation. The planning commission will also request that the city council provide policy direction on the basic concept of a residential zoning ordinance which focuses on conservation of residential character rather than control of new development. Once a general direction is determined, the commission will refine the proposed AD ordinance and submit it to the city council for a public hearing. • Council Letter No. 227 -2- Board of Adjustment and Appeals July 30, 1979 The planning commission has also been reviewing the city's zoning variance and appeals process, in an effort to increase efficiency of operation and provide the commission with more time to work on redevelopment policy, and long-range planning. The commission has been studying the concept of a separate board of adjustment and appeals. However, before submitting a proposed zoning ordinance change, the commission has asked for an opportunity to discuss the concept of a separate Board of Adjustment and Appeals with the city council. To assist the city council in discussion of these two issues, I have attached the following information: 1. State enabling legislation 2. Outline of Planning Commission presentation 3. Article on variance process and Board of Adjustment and Appeals 4. Flow charts comparing the existing variances and appeals process with possible alternative processes. • Respectfully submitted, w Karl Nollenberger City Manager KN/eja cc: Planning & Redevelopment Director • • PLANNING COMMISSION PRESENTATION A. Residential Zoning 1. General concept presentation by Chairman, Joe Ertman 2. Detail presentation (staff) a. four new categories of residential zones b. duplexes c. variance analysis d. large development 3. Action Step a. general discussion bz direction from city council • B. Board of Adjustment and Appeals 1. General concept presentation by Commissioner Steven Lindgren I* r } 462.354 HOUSING, REDEVELOPMENT, PLANNING, ZONING 5268 526! Subd. 2. Studies and reports. In exercising its powers under subdivision 1, a wit! municipality may collect and analyze data, prepare maps, charts, tables, and other its ; illustrations and displays, and conduct necessary studies. A municipality may pub- nin: licize its purposes, suggestions, and findings on planning matters, may distribute The i reports thereon, and may advise the public on the planning matters within the mer scope of its duties and objectives. Subd. 3. Appropriation and contracts. A municipality may appropriate monies ma• from any fund not dedicated to other purposes in order to finance its planning nici activities. A municipality may receive and expend grants and gifts for planning plai purposes and may enter into contracts with the federal and state governments or and with other public or private agencies in furtherance of the planning activities au- ' thorized by sections 462.351 to 462.364 a n . [1965c670s3] post to t 462.354 ORGANIZATION FOR PLANNING. Subdivision 1. Planning aE'en• cy. A municipality may by charter or ordinance create a lannin a en A sect li ; p g g cy. planning agency created by ordinance may be abolished by two-thirds vote of all t be the members of the governing body. The planning agency shall be advisory, except day: as other powers and duties are imposed on it by sections 462.351 to 462.364, by ame statute, by charter, or by ordinance consistent with the municipal charter. The `1 of ti j planning agency may take the following alternative forms: plan (1) It may, consist of a planning commission, which may or may not ;include of E municipal officials among its members. The planning commission may be provided sect with staff which may be a division of the administrative structure of the municipal to t) government. The commission shall be advisory directly to the governing body. (2) It may consist of a planning department with a planning commission ad- visory to it and shall function as a department advisory to the governing body and the a the municipal administration. The planning department may be provided with an me executive director and other staff as in the case of other municipal departments. mul Unt Subd. 2. Board of adjustments and ap peals. The governing body of any mu- . nicipality adopting or having in effect a zoning ordinance or an official map shall mer, [ provide by ordinance for a board of appeals and adjustments. The board shall have th e powers set forth in section 462.357, subdivision 6 and section 462.359, subdivi- sion 4. Except as otherwise provided by charter, the governing body may provide sion alternatively that there be a separate board of appeals and adjustments or that plar the governing body or the planning commission or a committee of the planning nin commission serve as the board of appeals and adjustments and it ma y provide an tica appropriate name for the board. The board may be given such other duties as the the governing body may direct. to, In any municipality where the council does not serve as the board the govern- prol ng body may, except as otherwise provided by charter, provide that the decisions th e the . of the board on matters within its jurisdiction are final subject to judicial reviex or are final subject to appeal to the council and the right of later judicial review sect or are advisory to the council. Hearings by the board of appeals and adjustments witL shall be held within such time and upon such notice to interested parties as is mur provided in the ordinance establishing the board. The board shall within a reason- be i able time make its order deciding the matter and shall serve a copy of such othe order upon the appellant or petitioner by mail. Any party may appear at the hear- the ing in person or by agent or attorney. Subject to such limitations as may be im- imp- posed by the governing body, the board may adopt rules for the conduct of pro- 1 dist: ceedings before it. Such rules may include provisions for the giving of oaths to of t witnesses and the filing of written briefs by the parties. The board shall provide o nick for a rec rd of its proceedings which shall include the minutes of its meetings, its day: findings, and the action taken on each matter heard by it, including the final.order. govt In any municipality in which the planning agency does not act as the board of ad- visit _justments and appeals, the board shall make no decision on an appeal or petition pen., until the planning agency, if there is one, or a representative authorized by it has that had reasonable opportunity, not to exceed 60 days, to review and report to the has board of adjustments and appeals upon the appeal or petition. [ [1965 c 670 s 4; 1967 c 493 81] ? 4 462.355 PREPARATION, ADOPTION, AND AMENDMENT OF COMPRE- HENSIVE MUNICIPAL PLAN. Subdivision 1. Preparation and review. The mor planning agency shall prepare the comprehensive municipal plan. In discharging heig this duty the planning agency shall consult with and coordinate the planning ac- of 1? tivities of other departments and agencies of the municipality to insure conformity and 5271 HOUSING, REDEVELOPMENT, PLANNING, ZONING 462.358 ders the obtaining of such written consent impractical, and such planning commis- sion or planning board shall report in writing as to whether in its opinion the pro- posals of the governing body in any case are reasonably related to the overall needs of the community, to existing land use, or to a plan for future land use, and shall have conducted a public hearing on such proposed ordinance, changes or alterations, of which hearing published notice shall have been given in a daily newspaper of general circulation at least once each week for three successive weeks prior to such hearing, which notice shall state the time, place and purpose of such hearing, and shall have reported to the governing body of the city its findings and recommends-_ tions in writing. Subd. 6. Appeals and adjustments. Appeals to the board of appeals and adjustments may be taken by any affected person upon compliance with any rea- sonable conditions imposed by the zoning ordinance. The board of appeals and ad- justments has the following powers with respect to the zoning ordinance: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by an administrative officer in the enforcement of the zoning ordinance. (2) To hear requests for variances from the literal provisions of the ordinance in instances where their strict enforcement would cause undue hardship because of " circumstances unique to the individual property under' consideration, and to grant such variances only when it is demonstrated that such actions will be in keeping with the spirit and intent of the ordinance. The board of appeals and adjustments or the governing body as the case may be, may not permit as a variance any use that is not permitted under the ordinance for property in the zone where the affected person's land is located. The board or governing body as the case may be, may per- mit,as a variance the temporary use of a one family dwelling as a two family dwell- ing. The board or governing body as the case may be may impose conditions in the granting of variances to insure compliance and to protect adjacent properties. (1965 c 670 s 7; 1969 c 259 s 1; 1973 c 123 art 5 s 7; 1973 c 379 s 4; 1973 c 539 s 1; 1973 c 559 s 1, 21 462.358 PROCEDURE FOR PLAN EFFECTUATION; SUBDIVISION REG- ULATIONS. Subdivision 1. Authority to regulate. To provide for orderly, eco- nomic, and safe development of land and urban services and facilities, and to promote the public health, safety, morals and general welfare, a municipality may adopt subdivision regulations which include minimum physical standards and design requirements as to such urban- services and facilities, and proce- dures for plat approval, including a procedure for appeals from actions of the plat- ting authority. Subdivision regulations shall be adopted by ordinance when the governing body is the platting authority and by resolution when the platting authority is an agency other than the governing body. A municipality may by resolution extend the application of its subdivision regulations to unincorporated territory located within two miles of its limits in any direction but not in a town which has adopted subdivision regulations; provided that where two or more noncontiguous municipalities have boundaries less than four miles apart, each is x, authorized to control the subdivision of land equidistant from its boundaries within this area. Subd. 2. Terms of regulations. Subdivision regulations shall require that a proposed subdivision plat shall be in conformity with the official map if such exist. In establishing requirements for the location and width of streets, the municipality " shall take into consideration anticipated traffic needs and the prospective' character of the development and make any reasonable requirements therefor. As a condition to the approval of any subdivision plat of lands to which the regulations apply, sub- division regulations may prescribe requirements concerning the extent and manner in which streets shall be graded and improved, and electric and gas distribution lines ; or piping, water, sewer, or other facilities shall be installed. The regulations may provide, or authorize the governing body or other platting authority to provide, that, in lieu of the completion of such work before the final approval of the.plat, the gov- erning body or platting authority may accept or require a contract secured by a cash deposit certified check, or a bond in an amount and with suret and onditi sati , y c ons s- factory to it, to assure the municipality' that such improvements and utilities will be A actually constructed and installed according to the specifications approved - by the governing body or platting authority as expressed in the contract; and the munici- pality may enforce such contracts by appropriate legal and equitable remedies. The G O A L S: R E S I D E N T I A L Z O N I N G . CONSERVE RESIDENTIAL CHARACTER PROMOTE REMODELING/CONSERVATION PROTECT PROPERTY VALUES/PUBLIC INVESTMENT R E S I D E N T I A L C H A R A C T E R ::TYPICAL NEIGHBORHOOD ::UNIQUE NEIGHBORHOOD :'LOW DENSITY MULTI-FAMILY OPPORTUNITIES :CMEDIUM DENSITY MULTI-FAMILY NEEDS 4) R E M O D E L I N G/ C O N S E R V A T I O N '31198 REMODELING PERMITS - 1974-1978 ;:69 VARIANCES GRANTED 1974-1979 ::DUPLEXES :CEXISTING DENSITIES P R O P E R T Y V A L U E S/ P U B :CTOTAL RESIDENTIAL VALUE :CTOTAL PUBLIC INVESTMENT i C I N V E S T M E N T: Z 0 N I N G T 0 C 0 N S E R V E, E N H A N C E, & P R 0 T E C T B 0 A R D O F A D J U S T M E N T A N D A P P E A L S • P U R P O S E QUASI JUDICIAL BOARD TO HEAR VARIANCE REQUESTS AND APPEALS OF ADMINISTRATIVE DECISIONS. P R E S E N T P R O C E S S P R O B L E M S O T H E R C I T I E S W A Y T O C U T R E D T A P E A S I M P L E R P R O C E S S A D V A N T A G E S 0 ?.: hiK r. ?h t; From the office of - GORDON PJHITNALL AND ASSOCIATES - Gordon Whitnall. Brysis N.Whitnall Theodore G.Robinson Kay Kalicka 4315-3/4 Leimert Boulevard Los Angeles 8,California PROPER USE OF VARVANCE BY GORDON WHITNALL e The variance is an essential device in the field of zoning. But,like water which in proper amount is essential to living, when absorbed improperly and in excess,can destroy life by drowning, so it is with variances. SOUAP EFFECTIVE AND DESIRABLE ZONING DE= PENDS UPON THE LWITED AID FROCK X OF TH_E VARIANCE. But prom- iscuous , expensive an3improper use of the variance not one ?r - ects-zon"in`g`to serious,legal-_azar - ut can, an _do metimes dojso misuse the practice of zoning as to create and accentuate the Very undesirable' ccnditiohi'which zoning,,Is-,,intended.-to-prevent . The significance of the variance, and the proper limitations upon its use is revealed best by identifying the position which the variance occupies in the practice of zoning,and then identify- ing zoning for what it really is. This is what this memorandum en- deavors to do. Zoning is the term applied to the practice by government of guiding and controlling the type and degree of land-use. The pur- pose of zoning is to assure the earliest, permanent and productive use of all property. The purpose-of_zonin is to prevent the in- trusion of certain types of land-use into areas_better suited for, a„d `often pr?nctpally oc'cupTed bj?d_ifferent__forTS o_f la- n3 -use that would be prejudiced `and`damaFed by such intrusion. The _inning oi-- dinance -also-governs"the'-intensity of land-use by means of con- trolling building height, land coverage and open space. This much about zoning is widely understood. But,except for the legal fraternity and a few others who have specialized in the science and theory of government, there is less general understanding of the fact that zoning represents a form of regulation accoreplished through .,what--is_connorily_called the_Qol±ce power? -The-term "police power" is difficult to accurately define. In fact, its definition is constantly expanding and its employment for the purpose of protecting property through zoning represents one of the more recent extensions of the basic principles of the police poser. As good a definition of "police power" as seems pos- sible to devise is that it represents the authority inher_e?nt_ i_ Socie_tYs organized in the form of its savere? over?rmnt,_ __ to._re- _ ?_ _ . sort to those acts of Fegu`lii oii deemed--to be essential to protect. both Society as a whole and the individuals ..and their .property- ;which, together9 -consti tute a camnini ty._ -1- __ i The real significance and importance of the variance begins to be revealed when it is next understood that the use of the po- lice power, as consistently interpreted by the Courts, is subject to certain simple and easily understood limitations within the meaning of our Constitution. That which is most pertinent as it applies to zoning, and particularly to the variance, is that the use of the police power shall always be exercised consistently-in tie presence of similar circumstance-s: -_STa?ed conversely, it is ar omatic that""the-police-power should never be applied with dis- crimination. Paraphrased, this means that the use of the police power should assure that all persons and their propel y_af r.eo:.5e guaranteed-EQUAL-PR IV I LEGcS ANDOPPORTUN IT I ES_ UNDER _,_S IiA I LAR_C I.R- . CLNISTANCES and that the. use of the police power shall never be-§Q 7... employed as to endow certa}n persons.._or.._pr_.operty,.w.?th_spec.ial._.pr_Lv ileges-deriied`to all others.under..aimilar"c.ircumstances., • Zoning was still a novel experiment (zoning began in Califor- nia) when it became increasingly evident that when a land-use pat- tern,.as represented by a zoning map,. was.applied to an existing community, certain indi_vidual_parcels of land, because of Peculiar circumstances appl?cab? when Fie sTr,?ct ,?_nterpretation",of the zoning -ordinance °was`applied to them, could not enjoy the privi- leges which were available to other -properties in-the same vicin- ity and under the sane classification. When this was the case a situation existed in which such properties,being deprived-of priti= ileges enjoyed by its -neighboring"properties-became'"literally dis- criminated against through the application of,the -policepower_in, the form of zoning. Thus, one of the axiomatic limitations upon the police power became violated and, if allowed to persist, would jeopardize the entire program of protective regulations. It was for the purpose of remedying these instances of discrimination that the variance was devised. The purpose of the variance - AND THE SOLE LEGITIMATE PURPOSE - is to so modify the application`6f a " zoning ordinance as it applies to the property in question as will BRING THE PRIVILEGES OF THAT PROPERTY TO A - PARITY with„ the other` .properties similarly located and classified. By such an adjustment of equities the use of the police power, in the form of zoning, is. brought into conformity with Constitutional limitations upon its. .use by assuring that it will similarly deal with all persons__or properties under similar circumstances:"-" There would never be any need for- a"memorandum such as this if such had been the consistent use of the variance in the past. But, unfortunately, that has not been true. In far too many cases the variance has been employed, not for the purpose of ELIMINATING DISCRIMINATION AMID ESTABLISHING EQUITY,, BUT RATHER FOR THE PURPOSE OF EXTENDING SPECIAL PRIVILEGES TO CER TAIN PROPERTY which, previous to the granting of a variance, al- .oggyRl./A Y• ? ..4'?..-, . a 'ice,. ? ? .. -2- a Y: a y? ready enjoyed privileges comparable to those of other properties similarly situated and classified. Such a_practice is not only reprehensible from a moral standpoint and results not only in cFe- feaL of the basic- and Legitimate purpose of zoning; Eat if repre= sents a'serious and-dangerous -disregard and d3sda-in for our basic Constitutional concepts of government and its powers. One may re- move a single stone from the foundation of a building without hav- ing the structure collapse, although the removal of the stone def- initely weakens the structure. But several of such acts might well lead to the destruction of the entire building. So it is when, re- gardless of motive and whether committed in ignorance or inten- tionally, we begin to undermine the basic concepts of our Consti- tution and thus jeopardize our whole form of Society. We learn from the Chinese that a good picture is worth 10,000 words,•hence this recourse to the picture method. There are pre- sented below three graphs. The first graph is a simile, sin le, horizontal strai.ghA-1ing.?It represents by its evenness an leve __ ------ character_ the privileges. of_a number of parcels of land in a given -4rea_and `which are s_-imilarly_-_c.lassi.fied und'er` a Toning ord Hance.: -They are. all equal ly.affected under simi,.lar_..circumstances. This is as it should be. `.-•_. -_ __ The graph shown next is similarly represented by a straight, horizontal line except that near its center is a depression. The depressed portion represents a piece of property which, because of circumstances peculiar to it'al6n-e such as size,'sliape, spec-?fic_. dimensions, slope, depression or elevation, cannot literally -con- form to the provisions of the ordinance as can the _neighboring property -similarly classified. Thus, this piece of property is represented graphically as a depression that connotes substandard privileges. This is a situation that warrants the consideration of a variance adjustmen-t: The variance'is employed and the adjusf- 'lent i rnwde;but-wfth-cer-fain limitations and conditions that will assure that the adjustment conveys no more than that,-_ amount.-of- privilege which-7W-i-11- bring thi-.s---•piece of_property,to a.PAR] TY-wi..th its neighbors. This adjustment is graphically represented by the dotted line which bridges across the depression. - -tea ,.I r 74 f ., Privileges adjusted to parity. Substandard discrim- inatory limitation. We find in the following graph another example of a straight, horizontal line representing equal privileges to all properties in the same vicinity and under the same classification. But a partic- ular piece of property,differing in no essential respects from all of the others,through its owner requests to be permitted some mod- ification of the requirements of the zoning ordinance through the medium of a variance. The privileges of this property are initial- ly on a parity with-the others. What the owner of.the property is actually asking is that he be permitted some additional privileges denied to the other properties. If the variance be granted, it constitutes a grant of a special privilege as represented by the bulge shown by the dashed line. Such an act not only destroys the integrity and effectiveness of the zoning program as a whole, but raises very serious questions as to constitutionality because it involves using the police power in a discriminatory manner through granting a special privilege to one piece of property denied to others under similar circumstances. l M M M &..O.Grant of special ® ® privileges As,a means a Pstahlishing,certai.n criteria that may be em- Qloyed by public,_.aMcials as-a.-guide-when_..dealTni wftl;i variance issues, there has been_ prepared and. in_eluded in. o_rdinarces_,from" ime ime, certain stated conditions or required showings. The writer'-of'this memorandum devised the first of such; arid-the'more common phraseologies used are still merely adaptations of the or- iginal. Those which fairly adequately serve the purpose are found in the following form in some recent ordinances. -4- ?s`.rct?i..ir!%?>?•:'r..,?-?? / That there are exceptional or extraordinary, circ ances or conditions applicable to the proper- ty or to the intended use that do not apply generally to the other property or class of use in the same vi- cinity and zone. , 2. That such variance is necessary for the pre- ser?C? t n and enjoyment of a substantial property right possessed by other property in the same vicinity and zone but which is denied to the property in ques- tion. Z?3 r T hat the granting of such variance will not eially detrimental to the public welfare or in- jurious to the property or improvements in such vicin- ity and zone in which the property is located. vn4. That the granting of such variance will not advs'is, y affect.the comprehensive general plan. The matters here discussed are still further clarified by the following quoted definition employed in some ordinances to indi-. cate what comprises a variance. "'Variance' means a modification of the spe- cific regulations of this ordinance granted by resolution of the Board of Adjustment (or similar agency) in accordance with the terms '.? of this ordinance for the purpose of assur- ing that no property,because of special cir- cumstances applicable to it,shall be depriv- ed of privileges commonly -enjoyed by other properties in the same vicinity and zone." For purposes of contrast and further distinction, the follow- ing definition of an amendment is helpful. " 'Amendment' means a change in the wording, contest or substance of this ordinance, or a change in the zone boundaries upon the zon- ing map, which map is a part of this ordi- nance, when adopted by ordinance passed by the City Council (or other legislative body) in the manner prescribed by law." There is still another manner in which this subject of var- iances may be effectively analyzed. A zoning ordinance is, of course, a law. This law says specifically what may be done and -5- fir;'. i what may not be done. It is ordained by the people of the City througF-i`--tTie Ci"ty`C"ounciI (or the legislative body of a county). Sometimes, in fact, it has actually been ordained by a direct vote of the entire Electorate. The significant point is that it is a law that defines the rule. Under our Americ,an_fora..af-.governments there is no one, be it a person, a corporation or a department of gov wt-,-that may with impunity break any law. There is only one means 6y which that which a law says shall be ocTne o? that w t`fi-c a law says shalt not be done may be a tere i?that one-means ts"` to amend{h_e Taws `Tn California that means, according to our ante Constitution, that the only authority for amending a law is vested either in the representative legislative body, which could be either a city council, a board of supervisors, or in the Elec- tors direct through the medium of Initiative or Referendum. Nor may the authority vested primarily in government be delegated by it to anybody else. This means, in plain english, that if a zon- in ordinance says that a certain {hing may not be done and the e ort is made to permt`Tuit to be done by any means other than an amen men oe _aw,`s R act. is open to very serious legal. atta. moral auost?ion.. The question becomes no less merely because the assumed authority to violate the law is exercised by a city plan- ning commission,by a board of adjustment,or even by the city coun- cil itself. Therefore, in addition to the above defined criteria and graphs a rule of thumb that can rather effectively aid a plan- ning commission, or a board of adjustment, in determining whether a requested variance would represent a valid adjustment or not, is to develop an answer to the 0uea4inn - "IV-1A +s,;? -, ; ;r granted, literally permit the doing of tha _whtc _ e ordinance t c e y say`s may_no1-Seed-one?Tr_Ano1Ner'rule of thumb would be found in the answer to the question- "Nould the variance,if grant- ed produce a conditions..which,i-fe,previosly existing, would con-ssf- to e a -nonconforming use?" If the answer is "yes",then there _is sert? ous quesl•;ion concerning the propriety of such a variance. These reasonings bring us back to an earlier subject of con- sideration as to when an adjustment is valid. The last point here attempted to be made is that when zoning ordinances,as they usual- ly do, properly provide that when circumstances are found to exist which make the strict application of the detailed provisions of the ordinance a discriminatory regulationto a given piece of prop- erty because of circumstances peculiar to it alone, then.the PRQ- CESS OF INTERPRETING THE..F8CIa-LNjHE_CASE T0._pETERMIINE IF THEY DO PRODUCE SUCH A LUSCRIUINAT0BY_MINDITJQ represents, not a legisla- iviv e but a J-LEICIAL interpretation, Here again we become con- fronted with the basic concept of our Constitutional form of gov- ernment which divides it into three essential divisions, namely, the 'legislative, the executive and the judicial. It is not only the prerogative, but the responsibility, of the judicial phase of government to interpret and determine whether a certain combina- tion of circumstances creates a condition within the intent and -6- _ Y . meaning of the Constitution, or violates its basic concepts. Thus, .when an issue is raised through the application for a variance,the real matter to be determined is whether the circumstances alleged to prevail, or such others as can be identified, actually do pre- vail and that the property in question is discriminatorily depriv- ed of privileges which other properties enjoy. If, through judi- !' ° cial interpretation and evaluation, it is found that there is such mac" Y discrimination, then in zoning matters the judicial process nor rr? mally contains the authority to make such adjustments as will bring the application of the law into consonance with Constitu- tional guarantees. Thus, in the field of zoning, it is perfectly proper that there shall be such conditional adjustments made as will assure that the privileges of the property in question are brought to a parity with other properties in the same vicinity and classification - BUT NO UIORE. That act represents a judicial function. In the field-of..zoning_this-function is normal_!y v_ested in ,a spec a, agency variously called a Board of Appeals, A Board of Ad- ?astment; some -other title, -and.. such agency 'i s usual ly_referred 1o asa- uaas?iz; 'udicial body. -'These have been a provisions andw these have been the practices in practically all states except in W 71 California. It is only recently that California has identified and extended the authority to local units of government to create the quasi-judicial agency which, under our law, is referred to as the Board of Adjustment or the Zoning Administrator, or both. This au- thority is being increasingly employed. Prior to possessing this authority and to exercising it, the general practice in California began with outright legislative amendments that would make the modification, and gradually that practice swerved to the point where planning commissions would _ initially-x-eview applications for variances and recommend to the legislative body that they be granted by consenting through reso- n lution, or its equivalent. In time the practice reposed more and more authority for final determination in the planning commission but always, for basic legal reasons, where the legislative process znn is involved, maintaining the privilege of appealing the commis- < sionts decision to the legislative body. There are two basic weak - x . nesses in this practice. One is that the legislative body is less ?^ may:''" familiar with related matters of policy initimately associated with the whole planning program, particularly the entire land-use pattern, than is the planning commission and, secondly, the legis- lative body, being an elective and representative body, is natur- ally - and excusably - more prone to determine an issue upon the basis of political expediency than upon the pertinent, physical facts. This tendency, in itself, has often produced such an as- sortment of irreconcilable inconsistent actions as to establish ? 1Ya_Yt Yn r _., ( z. serious legal question and moral question concerning the validity of the entire practice because of resulting inconsistent applica- tion f th i o e pol ce power. (Note: As of this date, 1956, the California Congervation and Planning Act, by means of amended provisions, puts variance matters into the political arena b ro idi th y p v ng at quasi-judicial decisions of the Board of Adjustment may be appealed to the legis- lative body. This is not true in Los Angeles by reason of Charter prow-isions which adhere to the American way). This memorandum undertakes in no sense to indulge in an argu- ment. Its purpose is merel to l i y exp a n as lucidly as possible the fundamental considerations attendant upon the practice of dealing with variances if the practice is to adhere strictly to both the spirit and the letter of constitutional law. Possibly the real na-: ture of the issue can be best illustrated if the field of zoning b e left for a moment and we enter into another field where the same principles are -applied and more generally understood. It requires little imagination to visualize a situation in which a legislative body enacts a law declaring it to be illegal for one to take property belonging to another. The act of breaking such a law is called burglary or theft. If the perpetrator of a burglary or theft is apprehended, the next social concern is that the facts shall be ascertained and the cul rit shall b b p . e su ject to the prescribed penalties if'found to be guilty. It would probably • be considered very strange by any school child, much less an adult, if one accused of such a crime were to be judged guilty or inno- cent by the legislative body that enacted the l It i aw. s not that the same degree of intelligence is lacking in individuals compris- ing legislative officers as compared to those who represent judi- cial officers; it is rather that the viewpoint and incentive of h ` individuals in those two positions are so radically different. If . conceivably you were accused of some crime, the point here attempt- M ed to be made could probably be more effectively made by asking - the question - "Alould you prefer to have your guilt or innocence passed upon by a legislative body or by the courts?" The all too prevalent practice in some places of misusing the i var ance in a manner to completely negate the provisions.and in- tent f i o a zon ng ordinance by producing a so-called "spot zone" has served to arouse an increasing question concerning the valid- ity of the practice - both le all morall d li i g y, y an po t cally. As a consequence the pendulum has in some instances been swung to the opposite extreme. This takes the form of the occasional claim that - a variance may never be validly employed where a modification of " " r USE restriction is involved. ._'.;. -??}6. d?v. err.. 4 The question thus raised warrants a separate extensive analy- sis but not in this discussion. It must suffice at this time to state that although A USE VARIANCE IS SELDOM JUSTIFIED THERE ARE CIRCLR4STANCES IN THE PRESENCE OF WHICH A USE VARIANCE IS NOT ONLY JUSTIFIED BUT IS ESSENTIAL BOTH IN LOGIC AND IN LAW. Two examples will illustrate the principles involved. 1. A nonconforming industry consists of three separate buildings, each housing an es- sential portion of equipment and processing. One unit burns down. A building permit to re- build may not automatically be issued. To prevent the replacement of the destroyed unit would destroy the usefulness of the remaining units. A conditional variance would be war- ranted as fully conforming to the usual re- quired showing. 2. The initial urban i"mprovement of a large acreage island completely surrounded by solid urban development was about to occur. Tens of thousands of tons of material for pav- ing, sewers and water system would cause an avalanche of trucks that would destroy streets incapable of carrying the loads not to men- tion the inconvenience, nuisance and hazard to residents surrounding. An existing rail- road offered an ideal solution to the problem except for the fact that no industrially zon- ed property existed contiguous to the rail- road and in the area. To actually rezone an area might permanently introduce heavy uses that would be unwarranted. A conditional var- iance limited to a twenty-four month period was issued. ,It allowed the operation of rock bunkers,pavement mixing plants,material stor- age facilities etc. In eighteen months all this was removed but in the meantime hundreds of thousands of dollars was saved to devel- opers and the city, and surrounding residents were effectively protected against the intru- sion of uses that would have destroyed the living environment which the established zon- ing was intended to protect. Other actual examples could be cited in which so-called USE VARIANCES have been properly,employed. -9- xr ®r, x. .' ?. .. _ ._ 5y'«? "., ??t ..t" '+F ? _ i ?y??.v.^-t . q ? ??? ? ..A ??`°a•Irtw•".. ' .'t xru.:? ? .?v;?• ;.T k ! i r 0 o o 0 o o 0 -lo- 4 In summary, therefore, when considering the subjer-t of var- iances in the field of zoning, it may be accurately and correctly stated that the consideration of factors involved in dealing with variances constitutes a quasi-judicial process. Being a quasi- 'dici_a?l function,it is improper both constitutionally and morally, ?fFi `final decision on in such matters should rest with the leg- ts a ive body. The legislative body creates the rules, but the _ udici--al agency interprets tTieir'application. To•repose both func- gions in one place approaches that condition of concentration of power which, carried to the ultimate, must lead inevitably-to to-- lalitarianism or dictatorship,, which is the antithesis of our form of Sovernment. The moment we begin to deviate from the basic con- cepts of our form of government, we have taken the first steps in the other direction. As a consequence, planning Commissioners, if they be the officers upon whom is placed the responsibility for dealing with variance matters, or members of Boards of Adjustment or the Zoning Administrator - if-they exist - have as their direct concern the responsibility first to maintain the integrity of and protect and preserve our form of government upon which we all de- pendq second, to assure that no individual shall be discriminated against in the application of the rules established by our govern- ment through legislation; and, lastly, in the effort to protect property through zoning against the damages caused by intrusions of incompatible uses.that nothing shall be done in the way of in- dividual acts, the doing of which will openly be a violation of both the spirit and the purpose of zoning. ?C,.kt r °. w o vr? v5'A "E•E ? 8" d, H°° tz W p'., G ?' oa cD H w y ?. p CD O w ?•-? CD N w 0 ?'. CD .< CD CUD a 0.oo oy'aQ y o^x a aa' C:6 W CD oo" o aQ CD d `? `D QQ d A Cy w ?"? 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