City of Montebello – Inappropriate Digital Sign Approval November 16, 2022
made mention of the City’s use of its police power, why it is being used, how the very use of this law is not in conflict with its own language (not in conflict with general laws) and how it violates MMC §§ 17.62.105(B) and (E) being consistent with the public’s health, safety, or general welfare. More specifically, how a digital sign being near several residential zones would be a “relocation and distribution of existing displays to more appropriate locations within the City” or how a 1:1 replacement would be consistent with “an overall reduction in the number of outdoor advertising signs in the City as part of the City’s planned development.” This is also in violation of California Government Code (“CGC”) section 54954.2(a)(3), also known as the Brown Act. This section prohibits any action or discussion be undertaken on any item not appearing on the posted agenda, and here the agenda did not disclose the pertinent item of the California Constitution police powers embedded in the ordinance being used to supersede the existing ordinances, or an explanation or justification of that law for this purpose.
Furthermore, the introduction of these ordinances would result in a conflict of laws, because as already illustrated the new ordinances, if enacted, would conflict with current MMC §§ 17.62.105(B)(1) and (2). This imposes on any local agency tasked with enforcing either ordinance to violate the conflicting ordinance and its obligations under CGC § 53091 requiring local agencies to “comply with all applicable building ordinances of the county or city in which the territory of the local agency is situated. [emphasis added.]” Relevant agencies cannot be expected to comply with two conflicting ordinances and still maintain their duty under CGC § 53091. Egregiously, the proposed ordinances claim to be consistent with the City’s General Plan and the Municipal Code (see Recital 6 and Section 3 pp. 55-56) when they are anything but.
The approval of these ordinances would also conflict with MMC § 17.62.105(E)(2) concerning permitting, which also requires the signage to comply with the I-5 and 60 freeway proximity requirements. None of the requisite language is contained in the development agreements, and should be.
The lack of transparency, multitudinous incongruencies, and conflict of laws is, if anything, closer to a clandestine abuse of the City’s police power rather than a lawful and good-faith exercise of it to shoehorn unlawful development without properly informing the public of its intentions and strategies for approving projects such as this one.
City of Montebello – Inappropriate Digital Sign Approval November 16, 2022
IV. Conclusion.
In sum, our office requests on behalf of a concerned Montebello citizen that the City Council reject the Project in light of the multiple violations of the Project’s Montebello Municipal Code, state law, and its inappropriate and surreptitious abuse of its police power to force this Project through the approval process.
If the City has any questions or concerns please do not hesitate to contact my office.
Sincerely,
__________________________
Jason A. Cohen, Esq.
Mitchell M. Tsai, Attorney at Law
Attorneys for a Concerned Montebello Citizen
cc:
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
US-DOCS\137395195.1
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November 16, 2022
VIA EMAIL
Montebello City Council
City of Montebello
1600 W. Beverly Boulevard
Montebello, California 90640
Email: [email protected]
Re: Montebello Sign Reduction Program (Ordinances 2454, 2455, 2456 and Approving Development Agreements DA02-22, 03-22, and 04-22) Dear Honorable Mayor and Honorable City Councilmembers:
We write to respond to the letter submitted this afternoon on behalf on an unnamed Montebello resident objecting to the sign reduction program being implemented by our client, Clear Channel Outdoor, and the City of Montebello through the three development agreements referenced above.
As stated in the prior staff reports on these matters and explained by the City Director of Planning & Community Development at the October 26, 2022, City Council Meeting, the proposed development agreements fully comply with state law and the City’s Municipal Code.
Business and Professions Code section 5412 specifically empowers the City to “enter into relocation agreements on whatever terms are agreeable to the display owner and the city…and to adopt ordinances or resolutions providing for relocation of displays.” The City has done just that through the adoption of section 17.62.105.A, which specifically incorporates section 5412 and also section 17.62.105.C.2 that allows for relocations in place upon the City Council’s approval of development agreements by way of ordinance. Further, to the extent there is any inconsistency with the existing Municipal Code, which there is not, the City is fully empowered to supersede such ordinances through the adoption of subsequent ordinances, which these development agreements are. (See Blotter v. Farrell (1954) 42 Cal.2d 804, 811.) Thank you very much for your attention to this matter.
Very truly yours,
/s/ Benjamin Hanelin
Benjamin J. Hanelin
of LATHAM & WATKINS LLP
Montebello City Council
November 16, 2022
US-DOCS\137395195.1
cc: Mr. Joseph Palombi ([email protected])
ITEM # 21
CITY OF MONTEBELLO
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA STAFF REPORT
TO: Honorable Mayor and City Council Members
FROM: Arnold M. Alvarez-Glasman
BY: Arnold Glasman, City Attorney
SUBJECT: WAIVE SECOND READING AND ADOPT ORDINANCE NO. 2451 AMENDING SECTION 2.08.050 OF THE MONTEBELLO MUNICIPAL
CODE TO REPEAL THE PROVISION ESTABLISHING A TEMPORARY
SEVEN MEMBER CITY COUNCIL TO CAUSE THE CITY COUNCIL TO
REMAIN A FIVE MEMBER BODY
DATE: February 8, 2023
RECOMMENDATION(S):
It is recommended that the City Council:
1. Waive the Second Reading and adopt Ordinance No. 2451 repealing that portion of the Montebello Municipal Code section 2.08.050(G) that established a temporary 7-member City Council resulting in the City Council remaining a 5- member body.
FISCAL IMPACT:
The estimated savings would include (a) the cost of the appointment of two (2) additional Councilmembers and their services for two years will be at a minimum $100,000, which includes salary, benefits and staffing; and (b) the cost of a special election will be from $250,000 to $300,000 for a city-wide election, with an addition of $100,000 for service costs. Repealing section 2.08.050(G) will save the General Fund between $100,000 to $400,000.
BACKGROUND/DISCUSSION:
At its meeting of June 22, 2022, the City Council adopted Ordinance No. 2451 that designated City Council seats to be placed on the ballot in the November 2022 election and to retain the two (2) at-large Council seats currently in place, thus expanding the City Council composition to seven members on a temporary basis. On December 14, 2022, five Councilmembers took their oath of office. Of these five (5) Councilmembers, two (2)
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF FEBRUARY 8, 2023
were incumbents who were newly elected into a District seat, thereby allowing the, to carry out the remaining 2 years of their elective term. An issue has arisen which places into question whether the City Council has to fill the two at-large seats or does not have the authority to recognize that these two seats exist. This action would address this issue and by repealing the language which created the two seats on a temporary business, thus eliminating the existence of the two seats.
ENVIRONMENTAL:
N/A
ANALYSIS:
The City Council also has the authority and the discretion to repeal by ordinance that portion of the Montebello Municipal Code section 2.08.050(G) that established a temporary seven-member City Council. Currently, Montebello Municipal Code section
2.08.050(G) reads as follows:
“In addition to the five councilmembers to be newly elected in the November 2022 election, the two incumbent at-large councilmember seats will remain in office and will continue to serve as a councilmember until the expiration of their term, forming a temporary seven member legislative body. This provision will sunset on the date that the members elected from Districts 2 and 4 take their oath of office as a result of the election occurring in November 2024. At that time, the two existing at-large city council seats will be eliminated. Commencing with the November 2024 election, Districts 2 and 4 will become 4-year term seats, and only the five city council district seats will remain active, reverting the legislative body of the City of Montebello from seven members to five members.”
As a result of the November 2022 elections, the incumbent Councilmembers who were serving in the at-large seats were elected to new District seats for a 2-year term.
Accordingly, the law prohibiting the shortening of an elective term of a sitting Councilmember is not violated because the Councilmembers will be carrying out the rest of their term without interruption. Therefore, the City Council can repeal the provisions of the Montebello Municipal Code requiring the short term composition of the City Council to be expanded to seven (7) members and having the membership of the City Council remain at five (5).
SUMMARY:
It is recommended that the City Council conduct a second reading and adopt Ordinance No. 2451 repealing that portion of the Montebello Municipal Code Section 2.08.050(G) that established a temporary 7-member City Council resulting in the City Council remaining a 5-member body.
ATTACHMENT(S)
1. Attachment A - Ordinance No. 2451
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF FEBRUARY 8, 2023
NEXT STEPS:
N/A
ORDINANCE NO. 2451
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
MONTEBELLO, CALIFORNIA, AMENDING SECTION 2.08.050 OF
CHAPTER 2.08 OF THE MONTEBELLO MUNICIPAL CODE TO REPEAL
THE PROVISION ESTABLISHING A TEMPORARY SEVEN MEMBER
CITY COUNCIL TO CAUSE THE CITY COUNCIL TO REMAIN A FIVE
MEMBER BODY
WHEREAS, the City of Montebello (“City”) is a general law city, which was previously governed by five (5) council members who were all elected by all voters in the City in an at-large voting system; and
WHEREAS, at its meeting on February 9, 2022, the City Council adopted Ordinance No. 2444 establishing the by-district election process of Councilmembers to be implemented in the November 2022 election; and
WHEREAS, at its meeting on May 11, 2022, the City Council adopted Resolution No. 22-34 that formally adopted the City’s Council District Map consisting of five (5) districts; and
WHEREAS, pursuant to Government Code section 36501, the government of a general law city is vested in a city council of at least five (5) members; and
WHEREAS, as a result of the November 2022 election, two incumbent City Councilmembers who had a remainder of two years of their elective term were newly elected into District seats and will carry out the remainder of their elective term therein as members elected “by-districts”; and
WHEREAS, on June 22, 2022, the City of Montebello adopted Ordinance No. 2451 establishing a temporary seven (7) member legislative body, set to sunset after the November 2024 election; and
WHEREAS, certain issues have arisen which places into question the City’s ability to expand to a seven (7) member body and to address these issues, the City Council desires to remain a five (5) member legislative body; and
WHEREAS, the City and the City Council, by adopting this ordinance, are repealing that provision of Montebello Municipal Code Section 2.08.050 G which established a temporary seven (7) member legislative body, and which would cause the City Council to remain a five (5) member body.
ORDINANCE NO. 2451
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF MONTEBELLO HEREBY ORDAINS AS FOLLOWS:
SECTION 1. RECITALS. The above recitals are true and correct and made part of this Ordinance.
SECTION 2. AMENDMENT; ADDITIONS. Section 2.08.050 – Municipal Elections of the Montebello Municipal Code is hereby amended and will read as follows (deletions in strikethrough and additions in double underline):
2.08.050 – Municipal Elections.
A. Pursuant to Sections 1301 and 1000 of the California Elections code, commencing with the statewide election to be held on November 6, 2018, the city of Montebello’s general municipal elections shall be held on the first Tuesday after the first Monday in November of even-numbered years to coincide with the statewide election.
B. Pursuant to Sections 34886 and 34871(a) of the California Government Code, Council members will be elected on a by-district elections system. The term “by-district” as used in this Section shall mean election of members of the City Council by voters of the district alone. Candidates for council seats in each district shall be nominated and elected only by the voters of that district.
C. Except as provided in subsection (D) of this Section, each Council Member must be a resident of and a registered voter in the council district from which the member is nominated at the time the member is nominated, elected, and throughout that member’s term of office. In the event any Council Member ceases to be a resident of the district from which the member was nominated, the office shall immediately become vacant and shall be filled in the same manner as herein provided for other vacancies. If a Council Member ceases to be a resident of the district from which the Member was nominated solely because of a change in the boundaries of the districts, the Member shall not lose office during that term by reason of such change pursuant to California Government Code section 34882 and Elections Code section 10227.
D. A Council Member in office at the time this section takes effect will continue in office until the expiration of a full term to which they were elected or appointed and until their successor is qualified. If vacancies in Council Member offices elected at-large occur before expiration of the full term thereof, such vacancies will be filled according to law from the City at-large.
ORDINANCE NO. 2451
E. The number of Council Member districts of the City and the boundaries of said districts shall be adopted and established by the City Council by resolution no later than May 12, 2022. The by-district elections process and the established district boundaries shall be implemented in the City’s next general election occurring on November 8, 2022.
F. District boundaries shall be adjusted by the City Council before the first day of November of the year following the year in which each decennial federal census is taken by majority vote of the total membership of the City Council, and as provided in Elections Code section 21601, 21602 and 21607. The district boundaries, but not the number thereof, may be changed by ordinance adopted by the City Council by majority vote of all its members; provided that districts established by the City Council shall be as nearly equal in population and as geographically compact as possible. However, the City Council shall not change the boundaries of districts more than once in any two (2) year period and no such change shall be made within the period of one hundred eighty (180) days preceding a general municipal election. The preceding limitations shall not apply to changes made necessary by changes to City boundaries, as provided in Elections Code section 21603. After City Council has exercised its power to change the boundaries of districts, these changes shall immediately be reflected in the district boundaries specified by ordinance adopted by City Council.
G. The following five (5) City Council district seats will be placed on the ballot for the November 2022 regular election, in accordance with the assigned term length for the district seat specified:
i. District 1: 4-year term.
ii. District 2: 2-year term.
iii. District 3: 4-year term.
iv. District 4: 2-year term.
v. District 5: 4-year term.
In addition to the five (5) Councilmembers to be newly elected in the November 2022 election, the two (2) incumbent at-large Councilmember seats will remain in office and will continue to serve as a Councilmember until the expiration of their term, forming a temporary seven (7) member legislative body. This provision will sunset on the date that the members elected from Districts 2 and 4 take their oath of office as a result of the election occurring in November 2024.
At that time, the two (2) existing at-large City Council seats will be eliminated.
Commencing with the November 2024 election, Districts 2 and 4 will become 4-year term seats, and only the five (5) City Council district seats will remain
ORDINANCE NO. 2451
active, reverting the legislative body of the City of Montebello from seven (7) members to five (5) members.
SECTION 3. SEVERABILITY. If any action, subsection, line, sentence, clause, phrase, or word of this Ordinance is for any reason held to be invalid or unconstitutional, either facially or as applied, by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance, and each and every individual section, subsection, line, sentence, clause, phrase, or word without regard to any such decision.
SECTION 4. EFFECTIVE DATE. This Ordinance shall become effective thirty (30) days after approval by the City Council.
SECTION 5. PUBLICATION. The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be published or posted according to law.
PASSED, APPROVED, AND ADOPTED ____TH DAY OF FEBRUARY 2023.
_______________________________
David Torres, Mayor
APPROVED AS TO FORM:
_______________________________
Arnold M. Alvarez-Glasman, City Attorney
I HEREBY CERTIFY that the foregoing Ordinance was introduced at the regular meeting of the City Council on the 2th day of February, 2023, and was adopted by the City Council of the City of Montebello at its meeting held on the ____ th day of February, 2023 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
_______________________________
Christopher Jimenez, City Clerk