Loading...
Resolution No. 4301RESOLUTION NO. 4301 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CYPRESS GRANTING A VARIANCE FROM THE TERMS OF THE ZONING ORDINANCE OF THE CITY OF CYPRESS TO ALLOW A REDUCTION IN THE REAR YARD OPEN AREA FROM THE REQUIRED 1,100 SQUARE FEET OF OPEN AREA DOWN TO 900 SQUARE FEET OF OPEN AREA. VARIANCE NO. 94 -2 THE CITY COUNCIL OF THE CITY OF CYPRESS HEREBY FINDS, RESOLVES, DETERMINES, AND ORDERS AS FOLLOWS: 1. That an application was filed for a variance from the terms of the Zoning Ordinance of the City of Cypress to allow a reduction in the rear yard open area from the required 1,100 square feet of open area down to 900 square feet of open area located at 4038 Cardiff Drive. 2. That the City Council, after proper notice thereof, duly held a public hearing on said application as provided by law. 3. That the City Council hereby finds that: (a) The strict or literal interpretation and enforcement of the requirement for a rear yard area of 1,100 square feet would, in this instance, create a practical difficulty and unnecessary physical hardship inconsistent with the objectives of the Zoning Code Section 17 in that the applicant has already modified the building design to meet setback requirements in a concerted effort to bring the property into compliance and has further provided and agreed to design conditions which reduce the visual impacts to the adjacent property to the rear, and further modifications to reduce the size of the addition will prohibit the applicant from enjoying privileges enjoyed by others in the vicinity. (b) There are exceptional and extraordinary circumstances applicable to the subject property which do not apply generally to other properties in the same zone in that this property is smaller than the average RS -6,000 lot in the vicinity. (c) The strict or literal enforcement of the rear yard area requirement would deprive the applicant of privileges enjoyed by the owners of other properties in the same zone in that the subject property is smaller than the average RS -6,000 lot and similar variance requests for reduced rear yard open area have been granted in the past within the same zone. (d) The granting of this variance, as conditioned, will not constitute the granting of a special privilege inconsistent with the limitations on other properties in the vicinity classified in the same zone in that the subject property is smaller than the average RS -6,000 lot and similar variance requests for reduced rear yard open area have been granted in the past within the same zone. (e) The granting of the variance will not be detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity in that the reduction in yard size is strictly applicable to the rear yard of the subject property and additional measures have been taken to protect the privacy and visual impact to the property owner to the rear of the subject property in the reduction of the number of windows from four (4) to two (2). NOW, THEREFORE, BE IT FURTHER RESOLVED that the City Council of the City of Cypress does hereby approve Variance No. 94 -2, subject to the conditions set forth in Exhibit "A" attached. 236 PASSED AND ADOPTED by the City Council of the City of Cypress at a regular meeting held on the 25th day of April , 1994. MAYOR OF THE CITY OF CYPRESS ATTEST: CITY CLERK F THE eITY OF CYPRESS STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS I, DARRELL ESSEX, City Clerk of the City of Cypress, DO HEREBY CERTIFY that the foregoing Resolution was duly adopted at a regular meeting of the said City Council held on the 25th day of April , 1994, by the following roll call vote: AYES: 4 COUNCIL MEMBERS: Age, Bowman, Nicholson and Partin NOES: 1 COUNCIL MEMBERS: Kerry ABSENT: 0 COUNCIL MEMBERS: None /94-e6 CITY CLERK OF THE TY OF CYPRESS EXEIIBIT "A" CONDITIONS OF APPROVAL VARIANCE NO. 94 -2 1. The applicant shall agree to abide by (1) the Stipulation for Entry of Judgement for Permanent Injunction and (2) Stipulated Judgement for Permanent Injunction as attached hereto as Exhibit 2. The applicant shall submit building plans modified to Uniform Building Code standards in conformance with Exhibit "B." 3. The applicant shall provide the Building Department with a structural analysis of existing footings and roof construction, stamped and signed in ink by a licensed architect or a registered engineer, for the purpose of determining adequate roof tile load requirements. 4. The applicant shall expose all required foundations for inspection by the City's Building Official in accordance with Exhibit "A" attached. 5. Architectural elevations and site plans shall be reviewed and approved by the Planning Department prior to the issuance of building permits. 6. All new materials shall match the materials and color of the existing structure. 7. In the event substantiated complaints are received regarding the second story windows, measures shall be taken to resolve the problem. These measures shall be subject to Design Review and may consist of, but not be limited to requirements for additional perimeter landscaping and/or window coverings as determined appropriate by the Design Review Committee. 8. All applicable conditions of Variance 94 -2 shall be complied with before the issuance of building permits. 9. The developer shall defend, indemnify, and hold harmless, the City and any agency thereof, or any of its agents, officers, and employees from any and all claims, actions, or proceedings against the City or any agency thereof, or any of its agents, officers or employees, to attack, set aside, void or annul, an approval of the City, or any agency thereof, advisory agency, appeal board, or legislative body, including actions approved by the voters of the City, concerning the project, which action is brought within the time period provided in Government Code Section 66499.37 and Public Resources Code, Division 13, CH. 4 (§ 2100 et seq. - including but not by way of limitation § 21152 and 21167). City shall promptly notify the developer of any claim, action, or proceeding brought within this time period. City shall further cooperate fully in the defense of the action and should the City fail to either promptly notify or cooperate fully, developer shall not thereafter be responsible to defend, indemnify, or hold harmless the City. 10. Building modifications shall be subject to Design Review and shall be presentd to City Council for final review and approval. Revised 4/11/94 • Community Development Department • Planning Division ■ 238 VENTURA COUNTY OFFICE 2310 PONDEROSA DRIVE SUITE 1 CAMARILLO, CALIFORNIA 93010 16051 967 3466 ORANGE COUNTY OFFICE 3200 BRISTOL STREET SUITE 640 COSTA MESA, CALIFORNIA 92626 17141 545 -5559 EXHIBIT "B" RECEIVED MAR 0 it LAW OFFICES BURKE, WILLIAMS & SORENSEN 611 WEST SIXTH STREET, SUITE 2500 LOS ANGELES, CALIFORNIA SO :(ii (2131 236 -0600 TELECOPI ER: 12131 236 -2700 March 3, 1994 Mr. and Mrs. Harold Caswell 4038 Cardiff Drive Cypress, California 90630 Re: City of Cypress v. Caswell - Settlement Dear Mr. and Mrs. Caswell: BURKE, WILLIAMS, SORENSEN 6 OAAR LIGNTON PLAZA 7300 COLLEGE 6OULEVARO SUITE 220 OVERLAND PARK, KANSAS 66210 19131339-6200 WRITER'S DIRECT DIAL OUR FILE NO, Enclosed are drafts of (1) the Stipulation for Entry of Judgment for Permanent Injunction and (2) Stipulated Judgment for Permanent Injunction. These documents reflect the settlement the City is willing to enter into with you. We understand from your attorney, Richard Holmes, that these terms and conditions are acceptable to you. Please review the enclosed documents as soon as possible and contact our office to verify that the documents are in acceptable form for filing with the Court. If the documents are acceptable, a representative of our office and you will need to appear before the Court within the next several days and request that the Court immediately enter the Stipulation for Entry of Judgment for Permanent Injunction and continue the trial date for at least 60 days. If the Court grants the extension and enters the Stipulation, the City will need to approve the Variance Application before the Stipulated Judgment for Permanent Injunction can be entered by the Court. Please contact Mark Hensley or me at your earliest convenience to finalize this matter. Sincerely, 4- -w1 (� - Kenneth D. Rozell for Burke, Williams & Sorensen cc: Christine Eynon, Director of Planning Angela Basch, Code Enforcement Officer John Cavanaugh, City Attorney Mark D. Hensley, Esq. Richard Holmes, Esq. ux:s5209.4 JOHN E. CAVANAUGH, CITY ATTORNEY CITY OF CYPRESS; and BURKE, WILLIAMS & SORENSEN MARK D. HENSLEY, SBN 142653 KENNETH D. ROZELL, SBN 155599 611 West Sixth Street, Suite 2500 Los Angeles, California 90017 (213) 236 -0600 Attorneys for Plaintiff CITY OF CYPRESS SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CITY OF CYPRESS, a Chartered City, Plaintiff, vs. HAROLD CASWELL, an individual; WINIFRED CASWELL, an individual; and DOES 1 through 25, Inclusive, Defendants. CASE NO. 701890 239 FT ASSIGNED TO JUDGE JAMES J. ALFANO, DEPT. 82 STIPULATION FOR ENTRY OF JUDGMENT FOR PERMANENT INJUNCTION IT IS HEREBY STIPULATED by and between plaintiff CITY OF CYPRESS (hereinafter "City ") and defendants HAROLD CASWELL and WINIFRED CASWELL (collectively "Caswell "), as follows: 1. That on or about December 17, 1992, the City filed a complaint in the above entitled court seeking to enjoin Caswell from: a. permitting any building or structure to be maintained within any legally required setback or -1- 240 LAX:852o9A open space set -aside area(s) without a duly approved variance therefore; and b. permitting any building or structure to be maintained, erected, constructed, enlarged, altered, moved, improved, roofed or reroofed, converted or demolished without a duly approved permit therefor from the Cypress Building Department. c. permitting any satellite antenna to be maintained on the Property in violation of the Cypress Zoning Code. 2. On or about February 25, 1993, Caswell filed an answer to the complaint. 3. On or about February 22, 1994, Caswell filed an application for variance from the City's requirement for a 1,100 square foot rear yard ( "Variance Application ") for the Caswell's real property located at 4038 Cardiff Drive, Cypress, California (the "Property "). The Variance Application will be considered b the Cypress City Council on or about April 11, 1994. 4. If (1) this Court continues the trial date of March 28, 1994 for at least sixty (60) days, and (2) the Cypress City Council grants the Variance Application, then the City and Caswell believe it is in the best interests of City and Caswell, and stipulate that judgment in the above entitled action be entered in the form of the Stipulated Judgment for Permanent Injunction attached hereto as Exhibit A and incorporated herein —2— upon the filing of a declaration by counsel for the City stating that the Variance Application has been approved and that the judgment should be entered pursuant to this stipulation. 5. If the Court does not continue the trial date by sixty (60) days and /or the City Council does not grant the Variance Application, then this Stipulation For Entry Of Judgment For Permanent Injunction shall be of no force or effect. 6. Caswell is fully aware of their right to be represented by legal counsel and has knowingly elected not to take advantage of that right. DATED: DATED: DATED: LAX:85209.4 -3- HAROLD CASWELL, Defendant WINIFRED CASWELL, Defendant JOHN E. CAVANAUGH, CITY ATTORNEY CITY OF CYPRESS; and BURKE, WILLIAMS & SORENSEN MARK D. HENSLEY KENNETH D. ROZELL By KENNETH D. ROZELL Attorneys for Plaintiff CITY OF CYPRESS 242 LAX:85225.4 Exhibit A JOHN E. CAVANAUGH, CITY ATTORNEY CITY OF CYPRESS; and BURKE, WILLIAMS & SORENSEN MARK D. HENSLEY, SBN 142653 KENNETH D. ROZELL, SBN 155599 611 West Sixth Street, Suite 2500 Los Angeles, California 90017 (213) 236 -0600 Attorneys for Plaintiff CITY OF CYPRESS SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CITY OF CYPRESS, a Chartered City, Plaintiff, vs. HAROLD CASWELL, an individual; WINIFRED CASWELL, an individual; and DOES 1 through 25, Inclusive, Defendants. CASE NO. 701890 ASSIGNED TO JUDGE JAMES J. ALFANO, DEPT. 82 STIPULATED JUDGMENT FOR PERMANENT INJUNCTION Pursuant to the Stipulation for Entry of Judgment for Permanent Injunction filed previously with the Court by plaintiff CITY OF CYPRESS ( "City ") and defendants HAROLD CASWELL and WINIFRED CASWELL (collectively "Caswell "), JUDGMENT IS HEREBY ENTERED IN FAVOR OF CITY AND AGAINST CASWELL AS FOLLOWS: 1. Caswell, their agents, successors and assigns and all persons acting on their behalf are prohibited from maintaining a public nuisance at that certain real property located at 4038 -1- IAX:85225.4 Cardiff Drive, Cypress, California (the "Property ") and specifically: a. Prohibiting any building or structure on the Property to be maintained within any legally required setback or open space set -aside area(s) without a duly approved variance therefore; and b. . Prohibiting any building or structure on the Property to be maintained, erected, constructed, enlarged, altered, moved, improved, roofed or reroofed, converted or demolished without a duly approved permit therefor from the Cypress Building Department. c. Requiring Caswell to obtain demolition, investigation and building permits to accomplish the demolition and building reconstruction which is contemplated by the application for variance from the City's requirement for a 1,100 square foot rear yard filed by Caswell with the City on or about February 22, 1994 ("Variance Application ") and the requirements of the City Design Review Committee. d. Requiring Caswell, pursuant to the demolition permit, to demolish all portions of the building and /or structures maintained on the Property within the 10 -foot rear yard setback and obtain an investigation permit to investigate the soundness -2- 244 LAX:85225.4 of any remaining portion of the buildings and /or structures built without building permits prior to the time in which any structure is to be reconstructed as contemplated by the Variance Application. e. Requiring Caswell submit a structural engineer report certifying that the integrity of the building on the Property will not be compromised by work contemplated by the Variance Application. f. Requiring Caswell to exercise due diligence in the demolition and building reconstruction process contemplated by the Variance Application, with such demolition and building reconstruction to be completed within six months after the City Council grants the Variance Application. If Caswell has exercised due diligence in the demolition and building reconstruction process, the City will grant up to a total of two (2), three (3) month extensions for demolition and building reconstruction. g. Prohibiting Caswell from maintaining any satellite antenna on the Property in violation of the Cypress Zoning Code. h. If Caswell has not completed the required demolition and building reconstruction contemplated by the Variance Application and /or -3- required by the City pursuant to the above obligations (a. - g.) within six months of the City's granting the Variance Application and /or any time extensions granted by the City pursuant to Section f. above, then the City or its duly authorized agents can enter onto the Property and take whatever action it deems reasonably necessary to abate any nuisance on the Property, including, but not limited to demolition of any buildings or structures maintained on the Property in violation of said injunction and demolition of all portions of the structures on the Property for which building permits were not obtained. All reasonable costs incurred by the City in abating the nuisance as set forth in this Section h. shall be paid by Caswell, including, without limitation, construction and /or demolition costs and all reasonable attorneys fees. This Court shall have the jurisdiction to issue an order directing the Caswell to pay such costs based on a properly noticed motion of the City requesting such costs. Said motion can be brought at any time up to one year after the City has completed all actions it deems necessary pursuant to this Section h. h. Caswell shall permit officials of or on behalf of the City of Cypress to enter onto the Property -4- 246 LAX:85225.4 without a warrant at any time between the hours of 8:00 a.m. and 6:00 p.m., upon the City providing 24 hours notice of their intent to enter on the property for the purpose of conducting inspections to insure Caswell's compliance with the terms of said injunction during the pendency of this actic and until all of the actions required under this judgment are satisfied. 2. The parties hereto hereby release and discharge each other of and from any and all causes of action, damages, claims and demands of whatsoever kind or nature which they now have or have ever had against any one or more of them, or any of the individuals or entities named in this Stipulated Judgment For Permanent Injunction, jointly or severally, arising out of, or related to, (1) this lawsuit, (2) the property, and (3) any and all other matters, except those obligations, rights and conditions set forth in Section 1 (a. - h.). This Release and discharge extends to all past and present councilpersons, officers, agents, attorneys and employees of the parties. In this connection, the parties waive the provisions of Section 1542 of the Civil Code of the State of California, and any other similar statute or provision of any state or nation, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. -5- The parties hereby covenant and warrant that none has assigned nor sold any of the said claims, demands or causes of action. The parties hereby agree to indemnify and hold each other harmless as against any claim, debt, liability, demand, obligation, cost, expense, action or cause of action based on, or arising out of, or in connection with any transfer or assignment or purported transfer or assignment. 3. Except as set forth in Section lh. above, the parties will bear their own costs and fees incurred in this case. DATED: JUDGE OF THE SUPERIOR COURT