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SR-5-A (19) " C'c- eet} -Cij s:rA ~ CA:RMM:jld486jhpc city Council Meeting 9-25-90 SEJb~6 t~q990 Santa Monica, California STAFF REPORT TO: Mayor and city Council FROM: city Attorney SUBJECT: Ordinance Adding section 1330 to the Santa Monica Municipal Code Relating to Votes by the City Council that Do Not Obtain a Majority On August 29, 1990, the City Attorney issued Memorandum Opinion Number 90-16 which dealt with the effect of a tie City council vote on a matter appealed from the Planning Commission. The opinion concluded that a tie vote resulted in no action. The opinion was based on the language of section 9132.4 (b) of the Santa Monica Municipal Code which provides "an action of the [Planning] Commission appealed to the city Council shall not become effective unless and until approved by the City Council." In response to this opinion, the City Attorney has prepared the accompanying ordinance for City Council consideration. The accompanying ordinance provides that if the city Council fails to reach a majority vote reversing or modifying a decision from which an appeal is sought, the City Council will be deemed to have denied the appeal and affirmed the decision of the City board, commission, examiner or official. Another approach that the City Council could take would be to adopt an ordinance which provides that upon reviewing any appeal, if a majority of the City Council fails to vote to - 1 - S-"'A- ~ SEP ~:, 1990 OCT 2 1990 approve the appeal, the decision appealed from is deemed nonetheless rejected. However, this approach is not consistent with how appellate bodies normally proceed. RECOMMENDATION It is respectfully recommended that the accompanying ordinance be introduced for first reading. PREPARED BY: Robert M. Myers, City Attorney Joseph Lawrence, Assistant City Attorney - 2 - CA:RMM:jld489jhpc City Council Meeting 9-25-90 Santa Monica, California ORDINANCE NUMBER (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA ADDING SECTION 1330 TO THE SANTA MONICA MUNICIPAL CODE RELATING TO VOTES BY THE CITY COUNCIL THAT DO NOT OBTAIN A MAJORITY THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN AS FOLLOWS: SECTION 1. Section 1330 is added to the Santa Monica Municipal Code to read as follows: Section 1330. Effect of Vote by City Council. In any matter in which the city Council is called upon to consider an appeal from any action or decision of any city board, commission, examiner or official, the ci ty Council shall be deemed to have denied the appeal and affirmed the decision of the City board, commission, examiner or official if, following consideration of the appeal, the city Council by majority vote does not reverse or modify the decision from which an appeal has been made. - 1 - SECTION 2. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, are hereby repealed or modified to that extent necessary to affect the provisions of this Ordinance. SECTION 3. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional. SECTION 4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective after 30 days from its adoption. APPROVED AS TO FORM: ~~.~ ROBERT M. MYERS U city Attorney - 2 - I flO -- ()Ct/'- ('tj . ' AG...f:"fi'l' . 1 " ~ '.~ ) ~-] ~-~ i "L-I' C. hA:.c " KK9caw02.475 City council Meeting 10-2-90 Santa Monica, California ORDINANCE NUMBER (City council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA ADDING SECTION 1330 TO THE SANTA MONICA MUNICIPAL CODE RELATING TO VOTES BY THE CITY COUNCIL THAT DO NOT OBTAIN A MAJORITY THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN AS FOLLOWS: SECTION 1. Findinq$~nd_PurPo$e. The city Council finds and declares: (a) It is the law of the city of Santa Monica that, in those instances where the city council is unable to render a decision by four (4) or more affirmative votes at the conclusion of a public hearing on an appeal to the city Council from any action or decision of any city board, commission, examiner or official, then the city council shall be deemed to have denied the appeal and affirmed the decision of the city board, commission, examiner or official by operation of law. (b) Subsection l(a) above has been the consistent practice 0' the city of Santa Monica for more than a decade, including appeaJ from Planning Commission decisions on development proj e, applications during those times governed by the City's currf Zoning Ordinancef the City's former Zoning ordinance, and inte Ordinance Nos. 1220, 1250 and 1321 (CCS). - 1 - ........ ~.. (c) When the City's current Zoning Ordinance, including section 9132.4, was adopted on August 9, 1988, there was no intent to in any way change the past and continuing practice set forth in subsections l(a) and (b) above concerning the approval by operation of law of the Planning Commission's determination on a development project application where the city council is unable to render a decision by four (4) or more affirmative votes at the conclusion of the pUblic hearing on the appeal. (d) The instant Ordinance is adopted only to clarify the practice and law described in subsections l(a), (b) and (c) above because Zoning Ordinance section 9132.4(b) may be susceptible to more than one interpretation, including the interpretation suggested by the City Attorney in Memorandum No. 90-16 dated August 29, 1990. The city Council hereby intends, among other things, to confirm that the word "approved" as used in Zoning ordinance section 9132.4 (d) includes "approved by operation of law" or lIapproved as a matter of law" where the city Council is unable to reach a determination by four (4) or more affirmative votes at the conclusion of the public hearing on the appeal. SECTION 2. Codification. Section 1330 is added to the Santa Monica Municipal Code to read as follows: section 1330. Effect of vote by city Council. In any matter in which the City Council is called upon to consider an appeal from any action or decision of any City board, commission, examiner or official, the city Council shall be deemed to have denied the appeal and affirmed the decision of the City - 2 - '-..c -~ . board, commission, examiner or official if, following consideration of the appeal, the City Council by majority vote does not reverse or modify the decision from which an appeal has been made. SECTION 3. Inconsistent Provisions. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, are hereby repealed or modified to that extent necessary to affect the provisions of this Ordinance. SECTION 4. Severability. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this ordinance, and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional. SECTION 5. Execution. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The city Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective after 30 days from its adoption. APPROVED AS TO FORM: ROBERT M. MYERS city Attorney - 3 -