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HomeMy WebLinkAbout09-01-2015 Item 6 - DietrickCity Attorney's Office u�30 ?a11 ri 'Itr�el 11'; : t uis Cibi�;p A t7a I(I I .J 78i 7 :zP September 1, 2015 TO: FROM: SUBJECT City Council J. Christine Dietrick, City RECEIVED SEP 01 2015 SLO CITY Ci_` AttOnle City Council Meeting 9/1/15, Agenda Item #6 Further Analysis of the Appeal of Joseph Gambucci COUNCIL MEETING:_0q - o 1 ' ITEM NO.: As you know, at the City Council's September 1, 2015 regular meeting, the Council will consider an appeal filed by Mr. Joseph Gambucci related to the parking of a boat in the front yard at his property located at 598 Princeton Place, San Luis Obispo, On August 17, 2015, the property owner sent an e-mail to the Mayor raising additional grounds regarding his appeal, some of which were not analyzed in the City's staff report for this item. The August 27, 2015 e-mail from the property owner has been submitted to the Council as Council correspondence. This memorandum is provided in response to that e-mail. APPEAL ANALYSIS Additional Grounds for Appeal No. 1: Parking conforms to Municipal Code. The parking of the boat and trailer on the driveway of the Subject Property conforms to the `plain meaning" of the pertinent subsections of MC 17.17.055. Black's Law Dictionary, Seventh Edition at p. 995 defines "plain meaning" as follows: "The meaning attributed to a document (usu. By a court) based on a commonsense reading of the words, giving them their ordinary sense and without reference to extrinsic indications of the author's intent. " Staff Response: As discussed in the staff report, the parking of the boat and trailer in the driveway of the Subject Property is inconsistent with the City's parking standards and therefore does not conform to the "plain meaning" of SLOMC § 17.17.055. Additional Grounds for Appeal No. 2: Application of the Municipal Code regulation is a "taking," an inverse condemnation. The decision of the Planning Commission amounts to a "non -categorical" taking of an economic benefit of property ownership. "A regulation... may effect a taking though... it does not involve a physical invasion and leaves the property owner some economically beneficial use of his property. " Kavanau v. Santa Monica Rent Control Bd., (1997) 16 Cal. 4t' 761 774. The interpretation of the regulation in the SLO Municipal Code by the Planning Commission and Code Enforcement is a non -categorical taking as the regulation affects the existing or traditional use of the Subject Property and, thus, interferes with the property owners' "primary expectation. " Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 125, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1987). The application of the regulation "interfere[s] with interests that [are] sufficiently bound up with the reasonable expectation of'[Joseph Gambucci and Katherine Aaron] to constitute property for Fifth Amendment purposes. " Matt response: The City's parking regulations as applied to Mr. Gambucci is not a taking because the regulation has not deprived the property owner of all economic use of the property. A reL-ulatory takina occurs when a reaulation becomes so onerous that it has the practical effect of direct appropriation. Lingle v. Chevron U.S.A., 544 U.S. 528 (2005). Courts analyze regulatory takings claims using three separate factors to determine whether a compensable taking has occurred. Penn Central Trans. Co. v. City of New York, 438 U.S. 104, 124 (1978). 1. The economic impact of the regulation; 2. The "investment backed expectations" of the property owner; and 3. The "character" of the regulation. In order to be considered a compensable regulatory taking, the degree to which the regulation goes "too far" must be extreme. For example, courts have rejected claims when the regulation has effectively diminished value of property by as much as 95 percent. See, for example, Tahoe -Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 319 n.15 (2002) (citing examples of large diminution in value found not to be a taking); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 384 (1926) (loss in value of more than 75 percent not a taking); Hadacheck v. Sebastian, 239 U.S. 394, 405 (1915) (loss in value of more than 90 percent not a taking); William C. Haas & Co. v. City & County of San Francisco, 605 F.2d 1117, 1120 (9th Cir. 1979) (95 percent reduction in value not a taking). In this case, the regulation is simply an incident of property ownership. See Pennsylvania Coal v. Mahon, 260 U.S. 393, 413 (1922) (Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.). The case of Disney v. the City of Concord, 194 Cal. App. 4th 1410 (2011) is instructive. Although not a takings case, the opinion squarely addresses the right of a city to regulate parking within the front yard of residences. In that case, the City of Concord passed an ordinance generally prohibiting recreational vehicles from being stored on a driveway or in a front yard, or in a side yard except behind an opaque fence, or in an interior side yard if it encroached into a required setback area. Mr. James Disney filed suit alleging that the City exceeded its police power. The Disney Court held that the City of Concord had the right to regulate parking in front yards due to aesthetic concerns. The issue Disney raises has been persuasively addressed in an Attorney General opinion. The opinion noted that ordinances restricting parking on private property are "enacted for purposes of promoting traffic safety or enhancing the appearance of a city or county," (75 Ops.Cal.Atty.Gen. 239, 241 (1992)) and that under Metromedia, supra, 26 Cal.3d 848, 164 Cal.Rptr. 510, 610 P.2d 407 and other cases "[r]egulations to further these two goals fall within the permissible bounds of the police power of a city or county." (75 Ops.Cal.Atty.Gen., .supra, at p. 241.) The opinion thus broadly concluded that a city "may generally prohibit by ordinance the parking of particular categories of vehicles on private property, ..." (Id. at p. 240.) The opinion further specifically concluded that ordinances such as the one here— "[b]light control ... ordinances [that] typically prohibit ... the parking of trailers, motor homes, and recreational vehicles in front yard setback areas (which may or may not include driveways) for more than a certain length of time"—are constitutional. (Id. at pp. 243-244). Id at 1416. In accordance with its police power, the City of San Luis Obispo enacted certain rules regulating the parking of vehicles in the front yard. Like other rules, such as noise or trash can regulations, these rules affect incidents of property ownership. However, they do not constitute a taking as that term is defined by applicable law as discussed above. Please let us know if you have any questions or comments.