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HomeMy WebLinkAbout04/09/1973 Item #D-3CITY OF NEWPORT BEACH Office of CITY ATTORNEY April 9, "1973 To: The Honorable Mayor and Members of the City .Council 3 From: City Attorney Subject.: Effect of Proposed.Land Use Element and Residential Growth Limits.Com- ponert.of the General Plan on the Balboa Bay Club Lease By.letter.addressed to the Mayor and City Council dated April 4, 1973, Mr. Thomas J: O'Keefe, attorney for the Balboa Bay Club, has recommended that the Land Use Element of the General Plan and the Residential Growth Limits Component of the General Plan be revised to delete those provisions which are claimed to be in conflict with the present zoning and existing lease agreement covering the Balboa Bay Club site., The purpose of this memorandum is to answer the concerns of the Balboa Bay Club as expressed by Mr. O'Keefe. PROPOSED LAND USE ELEMENT The Land Use Element of'.the General Plan with reference to the Balboa Bay Club site proposes that upon expiration of the lease that this property is.to be converted to public marine - oriented recreational uses as determined by a master plan to be developed prior to the expiration.of the lease. Mr. O'Keefe argues on behalf of the Bay. Club's management that; this con - clusion may be prejudicial to the future best interests of the City. We cannot agree with Mr.. O'Keefe for the following reasons: By law the City is required to have a General Plan con- sisting of a statement of development policies including,diagrams and text setting forth objectives, principles, standards, and . plan proposals. Among the many elements required in the General Plan is a land use element which must, among other things, desig- nate the proposed general distribution and general location and. extent of the uses of land-for housing, business, industry and. recreation. Re: Balboa Bay Club Lease -2- April 9, 1973 The Balboa.Bay.Club site is.a unique parcel of property in that it is publicly owned and located adjacent to a public body of water. Because of this uniqueness, it would be most difficult to prepare detailed background comparison studies.. However, based on present trends, such as increased popula- tion.and leisure time and a decrease in water -front recrea- tional areas, together with existing public sentiment in favor of maximizing physical and esthetic access to tidelands and public water - oriented areas, the proposed use of the Balboa Bay Club property can be justified as'a matter of present day policy.: Of course, a future Council could amend the General Pian,if the aforementioned trends and public sentiment change. In summary, the' City is required by law to have.a General Plan showing proposed future land uses throughout the City. Based on our best knowledge, in light of the existing data as it re- lates to this unique piece of property, we have concluded that it is in the best interest of the City to show the .subject. property,as a future recreational area and open .space. RESIDENTIAL GROWTH LIMITS COMPONENT The proposed Residential Growth Limits Component of the General Plan provides that no further residential development be per- mitted on the Balboa Bay Club site. Mr. O'Keefe argues on behalf of the Bay Club's management that this proposal is in conflict with the purpose of the lease between the City and the Bay Club. The expressed purpose of the lease is that the property may be.used for any purposes not prohibited by law, other than industrial purposes. In other words, by restricting future 'residential development, Mr. O'Keefe contends that this violates the terms of the lease. The law as to whether or not a city can use its police power to avoid a contractual obligation is unclear. There is some ques- tion in the first instance, of the City's authority to contract away this.power. It could be argued that the City did not have the ability to agree that the zoning would not.be changed at some future date. As a matter of fact, the zone was changed a couple of years ago to limit the height of future buildings on the Bay Club property. The lease provides that the property may be used for any purpose (other than industrial) not prohibited by law. zoning laws by their very nature are subject to change and what may be a permissible use under the zoning laws in exis- tence at the time the lease was executed may be a prohibited use in the .future if the zoning law is changed. On the other hand, . a city could not enter into a contract and then by some arbi- trary action frustrate the entire purpose of that agreement. This would obviously show bad faith. Re: Balboa Bay Club Lease -3- April 9, 1973 Should the zoning be changed on the Balboa Bay Club site, it would be for.a valid public purpose in setting the residential growth standards throughout the City, and not just a singling out of. the Bay Club.. In summary, the issue.of impairment of contractual obligations vs. the City's police power to rezone is .a difficult and.unelear: I of the law. The City may never have intended nor may it have been legally possible for it to bargain away the power.to. change zoning in the public interest., DENNIS O'.NEIL City Attorney DON dm .. cc: City Manager: City Clerk Community Development Department