HomeMy WebLinkAbout14 - Echo Beach Project Appeal - CorrespondenceReceived After Agenda Printed
Agenda Item No. 14
June 10, 2014
I ask for the opportunity to meet with you (between June 5th -10th) to discuss my appeal of the "new"
project "Echo Beach ". The P.C. inappropriately approved and adopted a resolution finding the "modified"
project changes to be in "substantial conformance" with the original 2008 "Seashore Village" project and
adopted an addendum to the previous mitigated negative declaration.
Echo Beach and Seashore Village are two entirely different projects with different plans and proponents
and acceptance of plans through an addendum to the MND is in violation of CEQA, the Subdivision Map
Act, the Municipal Code and the General Plan. I have consulted with two attorneys and was told I am on
solid legal ground with my points in my appeal. Please understand, I am not anti- development, but I do
insist that appropriate protocol demanded by law be followed.
I have substantial documentation that provide back -up to these legal points, any of which should normally
preclude the City from adopting an addendum for "substantial conformance" and basing such on a "minor
revision ".
ILO:LCY\42a0�Ya1i Ifiit
1). It is a NEW PROJECT, not a "minor revision" to the prior project (see "Save our Neighborhood
v. Lishman ").
2). The prior 2008 project, (Seashore Village ") was conditionally approved and had proiect- specific
conditions" (resolution 2008 -53, Exh. "B"). The new project, (Echo Beach), submitted an entirely
new site plan, building envelopes, floor plans, height, setbacks, architectural style, eliminated duplex
buildings, increased sq. footage, INCREASED the number of buildings etc.. None of which can truly
be considered "minor revisions ".
3). Local entitlements have already EXPIRED!
4). Municipal Code doesn't allow adoption of "substantial conformance" by addendum to MND by
the Planning Commission unless applicant submits new permit application (MC20.54). Staff report
(p.10) confirms that the Community Development Director (C.D.D) would not commit to
determination of "minor changes" as evidenced by the following: "Given the significant visual
modifications proposed in this case, the C.D.D. is referring the determination as to whether the
proposed changes are minor to the Planning Commission for review and final action..: '
5). Staff Report (p. 10) CHANGED THE TEXT of referenced MC20.54, giving an incorrect
interpretation of code by adding the following statement: "...and waive the reauirement for a new
permit applications upon finding that the changes: " while they omitted the true phrase: "...where the
Director rirstfin ds that the changes:...". This goes beyond "interpretation ".
6). Addition of 6 buildings (previously 12 SFR & 6 duplex current project is 24 SFR) and
substantial changes to lot configuration and orientation, plus conditions of approval could not
possibly qualify as "minor amendment" (MC19.12.090).
There are many more legal points that can be made regarding this new project, and I look forward to
the opportunity to present them in more detail in person.
Lennie DeCaro
6 -10 -2014
Agenda Packet includes:
6 page objection letter to Planning Commission 4-3-2014
10 page appeal to the City Council 6 -10 -2014
Please include the following attachment and make available to the public
Attachment includes the following:
Title: Violation of CEQA, Subdivision Map Act, General Plan, Municipal Code and
Copyright infringement for unauthorized use of Architect Todd Sehooler's copyrighted
work product.
10 pages
6 pages: Analysis of appellate Case Law
"Save our Neighborhood v. L,ishman "(2006) 140Cal.App4th1288 and
partial response to consultant summary, amendments to tentative maps
Case law comparison
2 page Case law review from outside source
1 page Email (copy) sent to the City Council requesting a meeting
5 pages (3 page)Co ment letter / Jinn Mosher 4 -3 -2014/ Planning Commission
(2 page) Comment letter /Jinn Mosher -6 -10- 2014 /City Council
2 pages Proof of inaccurate building square footage
I page Proof' City participated in Settlement agreement
1 page Copyright Infringement applicable law E &P section 5536.4
8 pages Comments. My responses to the Consultant who responded with coded
notes to my appeal Ietter (unable to complete due to time constraints)
IN' VIOLATION OF CEQA, Subdivision Map Act, Ocneral'Plan, M- mnicipal Code arm
Copyright Infringement for unauthorized use of architect Todd Schooler's capy�ighted
work product.
1 reiodge, all prior objection and letters submitted regarding the two projects as well as sequutt the
audiwN ideo and all doeemtvts, letters. aad eniVlhing related to both Seashore Village, Fria, lleach aril rtic
and all entitle associated with such to be included in the administrative record.
Save our Neighborhood v. Irishman (2006) 140C1aLApp.4 "'1288
Icho Beach is cons iwjet" according to the findings in the above -cited
appellate Case. The City will violate CHQA law if the "Echo Beach project" is approved
by using the Unauthorized entitlements sutured by architect Todd Schooler. from his prior
nnbuift project obtained for his own behalf. The City must order independent
anyiivnnnental review and new permit applications for the [echo Beach project, (Co itrars,
In the planning consultant's incorrect review)
I1"dhe Catty approves the Echo Bench addendum for "substantial conformance" to the
previous "Soashore. Village MND", the City will face litigation. 'I lie court. could also rind
[those or disereiion regarding bias and copyright infringement on antler architeWs
intellectual property: Those entities associated with the Echo Beach project, without an
express contract with Mr. Schooler, would he in violation of BKP Code 5536.4.(a)
wherein it states:
"(a) No person neay use on architect's htstrumems of `service, as those professional
services are rlescribetl is paragraph (2) of subdivision (li) oirSection 5500.1, without the
consent ofthe architect in a written cottract, written agreement, or written license
specifically authorizing fhar use."
I've been told by an attorney who is familiar with this case that he believes 1113
assertions are `"on point ". A Unse against Echo Beach would he so similar in fact, that it
would be hard for the count to rude any other way. if approval of the addendum to the
Seashore V iltage projects leads to litigation, you should understand why. My assertions
raise limiter legal issues and have, the same similar fact patterns as the above referenced
ease.
Facts regarding the Ushman case:
1. .ciir relied on an adatearltutr io a nriligated negafive decitnzuion for on earlier prajeci
io huild a mole/ on the prupertr..... 1 at
12 Witkin, Sammt' o €Cal. Low( IOe` e . 2065)
Quotes and history below are pulled from the Case opinion /history (Hull, Ij. - Ii e agree
a,uh plaintiff's that die C'lty tltd not comply with C EU<i and reverse the,fudgrnent
(I IuHJ.)
in 1997, it mitigated negative declaration was prepared tot a project ("North Point"
NIND).'!'lie project included a 106- mnitmotel, restauiams. iounuc gas station,
convenience store anti a car wash. `North Point" project was never built.
7 years later, in 2004, the city prepared an ISIMNI) for the new `Gateway" project. It
also included a gas station, 192 -room hotel. convenience store and car wash. Staff then
decided that instead they would prepare an addendum to the "North Point " MND,
because they tali that none of the conditions requiring preparation of an MND or a.
supplemental EIR were evidenecct,. only some `Minor changes to the North Point
Project. Staff started there was no substantial changes proposed that required major
revisions of the North Point %4ND and stated that it actually "reducer sosteii hat the
intensity (if those uses somewhat ". °There are no substantial changes to the witigation
ntevvres prayoscd fvr adopiron and applicable to the 'C7atcuzry project. Certain
mitigation nieasuiv have been chiriked and made more spre<eh'ic. 7'he mitigation
measures, hmreum ov e generally consistent with those incorporated into the project as
approved in 1947."
Staff concluded that the North Point h4ND was still legally valid and determined no new
significant or more severe environmental effects would be created by the applicant's
proposed modifications to the originally approved project.
The conditions of approval were attached to the Addendum which included various
measures in the "North Point' MND. The conditions included various specific building
requiremennts, such as location of'uti8ties, size of sidewalks, division and engineering
requirements and directives from the fire department, all as part of the original conditions
to `.worth Point" RIND. The City prepared an addendum to Ow `North Point" MND
(original project). "I'Inc addendum indicated the Gateleav Project involved only "nninor
changes" to the North Point Project. It compared the environmental impacts and
mitigation measures of the two projects " 'I he council approved the project and adopted
the findings and conditions of approval (recommended bystaffi.
in 2004, parties sued the city for violationof General Plan. and violation of CT QA
contending the newly approved -Gateway Project - should prepare in EAR instead of ral}
on the addendum to the North Point MND. Trial court denied the petition for writ of
inundate and entered judgment for the City (defendants).
Plaiotii'(s challenged the riding.
Discussion of, the case follows:
- Afthotteh section 21166 speaks in terms ofan PIR, it is augmented by section 15161 eti
the C'HQJ gnridethtes 1, hation), which i»tposes the sunte obligation on a projcrtfor
which it negative declaration was prepared "
The agency must follow a checklist which includes that no subsequent ElR or MND is
needed unless the lead agency determines, on the basis of substantial evidence in tight of
the whole record, that inesents findings relevant to this case such as neiv information of
substantial importance,
The significance of this shouldn't he lost as it relates io the "Echo beach" projeet. The
addendum to the Seashore Village MND (by SCR) submitted an entirely different set of
plans. By virtue of the substantial changes can't possibly follow the original mitigation
measures and conditions attached to the original project, Seashore Village. Echo Beach.
by virtue of the uncharacteristic style, orientation, rednecd lot size_ increased height,,tmd
addition of 6 buildings created a " significant visual impact" a desorption. which by the
wav, was admitted by the C.D.Director in the statfreport (p. 10).
The checklist continues, "Guidelines section l i164..vine division (h) reads: "An
addendum to (m adopted negative declaration mac be prepared if only minor technical
changes or additions are necessary" or none of the other parameters found in Section
15 162 have occurred.
"The prinuoy thrust of piaintif('s C '0.A challen�s in this matter is that arse often
addenithan was inappropriate because the Gateway m
Project did not involve inor
technical changes or additions to the 3,orth Point Project but instead introduced
subsnnHal changes Bran will result in 'neiv siymificmu enviromnental effeers of a
.substantial increase in the severh b` of pi eviousl y idervi fled significant ejfecis. "
"Ilmrever, as a threshold matter, plaintiffs contend, its thi v did in the trial
court, that section 21166 and related CEQA guidelines have been
erroneously cast in the leading role in this dispute, because the Gatewfv
Project is not a modification of the North Point Project but a new project
altogether. Plabu fJ.r ar,uc 'tire (it o projects are unrelated escepnhin thin, both
include hotels and are located on the .same land. - Aceordln, w phlintijfs. Guidelines
section 15162 "does nor even eontentplate CRy s Cluempi ID emplrry a previous
ennhvnmental document covering a different projecu --be it related or unrelated — ,r
anal of the ner project's new inipaers. "
The i.udge ruled that the "plahviffs have the better argumem ". I {e stated it wasn't a
question ns to "whether file City had a "rational basis ",tor concluding that tine two
pr-oiects are related,, hull whether section 21166 applies to a situalion .such its presented
here. where it newIlruled is proposed their hits many (,tYhe sane characteristics as till
earlier pi e) ci approved fur the same site. This is a question of Taw fin the court. (See
Benton v. Board alSuper-visors (1991) 216 CA. App.M 11678, 14,75. 147 ).
The Following quoted opinion is clearly applicable io the Echo Beach case:
"Although planed fir. the same land and inra!vir {>.; .rinellar mires of uses. the forth Point
Project and the Gafeum, A otccr are dif feat pitjeels nonetheless. They have
different proponents and there is no suggestion the latter project utilized
atilt of the drawings or other nuderials connected with the earlier project
as a basis for the new configuration of uses. Me addendum describer the
thtfe rentes in the projects ors follow=s:... The question under Public Resources Code
Section 21166 and gtidelines ,section 16162 is whether changes in a project or its
saov-ounling circumstances ins oduce ner significant envirurunanad impacts. However, it
threshold question is whether me are dealing with a change to tr particular project or a
new project altogether, Public resources Code .S'ection 21166 and Guidelines .section
15162 apply to trite, former hat nor the latter. Despite the City's sef f- serving statements in
the Addendum that the Gateirgv Protect is it omdification gf%he North Point Protect. the
locality gflhe ciratonstcrrrccs provca otherwise. The Gateway Project is no more a
modified vervion of the North Point Project than the North Point project was it
modified version of any gf the several projects than preceeded it for the property. Public
res'oarees Code Section 21166 and Gaidelina.c section 15 162 arc therefore not applicable
to this case, and file City violated CEQ4 in retch g art an addendum rather than
independent environmental review,
1 continue to assert that the City (if they approve the SCR to the Seashore Village MND1
will be in violation of CEQA because Echo Beach and Seashore Village are different
projects and the City should have required independent environmental review of the new
project, Echo Beach. Contrary to the consultant's opinion of this case, the facts do clearly
support the contention that an addendum to. an MND from a different project can) be
used when the projects have different proponents (architect,'ownners) and because of this.
can't utilize any of tile drawings connected with an earlier project.
The reason here is obvious, you can't take work product that rightfully belongs to -another
and then benefit from this. There is a word forthis.
The associated entities involved lt this Echo Beach project have already infringed on die
copyrighted work product. of Mr. `Dodd Schooier, further, no innocent infringement can
be alleged as Mr. Schooler bad his plans stamped with a copyriglit.
'Pile aboveconunents and analysis were in response to the consultants wsponnse( 42) to
my appeal letter where she gives incorrect analysis regarding, my assertion that tine case
"Save our Neighborhood v. L,ishman" is directly applicable to the Echo Beach project.
Echo beach is a new project and would require new independent em ironmentai review. I
male the assunnptiotn that the "response" could not have core from of our City attorney,
but instead. fivm tine Place Works consultant
`flit, consultant will likely try to convince you tonight to support this project as she was
hired to do an addendum at tine request of the ptannu-. However the same consultant gave
a presentation that was biased (more for what was leD out) and misleading in what
appealed to be an effort to convinee the Planning Commission to adopt tine resolution as
submitted. Consultant reviewed the above case after reading about it for 10 minutes just
prior to speaking and stated it was Likely that the refemneed case involved mitigations
which is why thev couldn't use an addendum, due to the changes in use etc. She
incorrectly, whether intentional or not, discounted this very applicable case.
It is inadvisable to offer an opinion when unable to give the case adequate wady. At (cast
one cnmtnissioneraeemed to rely on everything the consultant said as he expressed that
"almost aIP' of his questions as to the validity of my objections in my 5 -page letter were
answered. Unfortunately, the consultant focused solely on enviromnental issues when
there were many, other issues that would have precluded acceptance of tho Substantial
Conformance Review. My objections as to site - specific conditions. etc. were either
ignored or I was unable to have the same opportunity to rebut any incorrect statements..
I one proievl that nnde7gOCS changes Can indeed. if appropriate, adopt an
addendum. h 'weven , all addenda n ntat not be used if the project is replaced by another
pte7icct that just happens to be similar. I lr issue here tonight is that Echo Reach is a new
project not a revision. of Nn. Schooler's S di eashore V a Q pro[ et.
xv :c
Response to Consultant summary
Please have an attorney review this extremely important Case Law, as the consultant has
not put Porch the correct facts of the Case. I've included a copy of a Planning and
Development report for a more clear understanding about this case.
C:onstdtant has also quoted CEQA sections that either weren't mentioned in the case or
cited out of context or inapposite to what this case actually states. Just one example of the
Sections she quoted that "apply' to the case. simply don't
C "on rultunt states: "_.and then public Resources Code (11RC) 5'ecrion .'1166 enact
ChOA Guidelines Sections 15162. 15103, and 15164 apply when cite project
being analyzed is a change to, or,hndher approval jor, a prefect,jpr which an 61R
or negative declaration wens preldously certified or "dopted
Instead. in Save our neighborhood v. Lishman aetuallyjjtt tes:,
"Public Resources Code section 21166 and Guidelines section IS162 are therefore
not applicable to this case, and the City violated CEQA in relying
oil all addendum rather than independent environmental review."
Consuftla t incorrectly states Echo Beach project is nol a new project. Read Case law
above, it confirms that oNo prnjjecis with eiffcrent proponents and differcut vchRectund
plans & matenals confian they are diflcrent projects 1 vile 13eevh �s a new n ojc t.
Consultant appears to somewhat miss the point. It is not about Echo Beach getting their
own HIND, it is about theist hying to use "substantial confoniranee reviev✓' through an
addendum to the Seashore village M1VD, Although it should already he a moot point as
to whether this project can legally get approved, I will still .vubrnit the applicable CEQA
Guidelines she entitled that are also included in the ab ve rcfercncind Case law tinder
discussion of "CFQA ". The section for all "addendun" based oil inuux changes" would
only be applicable however, if dicre was just o!ic project:.
it states: "Where changes in a project are not suha&nnfal enough to require a.cubsequeat
or sapplemertral ElR, tfig Lr�,ency ntayfnstcuil rrre:pare "a subsequent negative
declaraion, an addendum, or no fill flier documentation " (oodehnes 15164, subdivision
(h), ((3uialelirres 15162, subd. (b).) ready: 'An addendanr to an tulopted negative
declaration nra), he prepared tf only minor technical changes or additions are
nceessay or none ofthe conditions described in [Guiclellnesl 15162 calling for the
preparation qju subsequent EI$ or negative declaration have occurred "
Fwfl i( Echo iteach K Scast.ore village. acmatly "ll-c "one" prz { ct. it still fails. as tlna
chahaes can't be considered minor.
Consultant claims the follmvine arc "llullor' chances:
1. `thou would allow Or same t lee 4117tauc/ rise Iresolerufa(1 '
She neglected to state ilmt there were very important conditions duough the 2005
Citv Connell Resolution that attached to the SQatshcue Villuue MNI). They were
site and project specific filet prohibited chhii *ea in plans relating to building
envelope, floor plans height increases, lotsetbacks chant :.1, site tecond"favd,
reduced lot Siva `file 7 111 shows 24 etide `private" )odd, conditioned as 26'. !tilt
is not consistent with Mtmicipal Code requirements. etc..
2 the Smile number of l nits f N total t
uin, lsho Beach added 6 b m
tdidittys! 9'he} removed rental owl, bp, rcplac$r };
[lie o dup:ezes. with 1 1 tiCtt-s, a riolatian ut A to ritipat Code 19.12.040 e garding
ttmendineni.s to an approved i IitL wherein it States;
19.12.090 Amendments to Approved Tentative Baps.
A. Minor Amendments- Minor amendments to approved tentative tract or tentative parcel maps or to
any condition of approval thereon may be approved by the Planning Director provided the Director
determines that all of the following criteria are met,
1. No lots units, building sites or structures are added to the. o act;
2, The changes involve no substantial change in lot confi uq ration street layout,
improvements or conditions ot9pproval,
3. Thee att es are consistent with the intent of the orictinal tentative man approygi, and
4. The resuSting tentative map rematns tit conformity with this Subdivision Code .other
applicable provisions of the Mureipipal.Code and the Subdivision Map Act,
i
his process. that t have been sutriceted to borders on abusive. Proper protocol Kati bceh
entirely igisn ed. I have alrcad\ spent thousands of dollars in this appeals procda4liir the
simple goal or protecting my property Rom severe de aivalion. Yet. I ato required to yiap
$ -1,300 to 4ppcnl a decision that never should haco been Inn& in the lust place.
\Vill) re"wid, to tite appeal lie. I em conccutcd ac to the detrimental effeei ofsilt.i.chtg Elic
voices of residents that are iffected lot Planning Connuisslon actions when aalicd to pat'
an appeal fee: that increased ditmiatically to $4_232 t10. 1lie 6n, of t tmg Reach, Who ttlsu
had it study done by N/101' of.america for use! fates, onic ii argz :s their residents S50-00.
Most cities subsidize their r "idents for app als, is ibis an ocecvigltt from our Citc7 vv ill
1011 joilke ll emotion to eori'ccct tilts?
I ca om51 egject tliis Echo ileach addendum and regtdr that "Echo Bench " suborn then,
owl pot III iI appl icatiem, mitl'I their owmeneuvnIDentai revic.e.
Seashore Villagelh:cho Beach NorthllointiGateway Project
Comparison
:,gave Our Neighborhood v. Lishman'.
1-008SeashorebillaocPojec.t - -- HIND
y97V'or[hPointPaoject- - -NiND 3
i apposed wisite specific conditions
approved w /sitcspecilic conditions
Q odd ScPaooler /architectlsubdivider E
T
o Bob Bar(cls /developer
{paoponenti i
(Proponent) _
2014 Echo Beach Pro ject_attempt.s addendum
1 1004 Gateway Project aticntptsadclenduna
to previous Seashore Village Project M YD
to previous NorthPoint Project MND j
o L690wner LLC, (Brooks-Street)-,
v Edi aid MacKav- new owners
ue:w owners
o Bucilla group/ new architecture
i
o DII4I RFNI PROPONENTS 1
- --
tBoth
0 DIFFERENT PROPONLNTS I
—'
projects have similar uses I
I Both projects have shnilar uses ! {
! major changes: added 6 bldg•. site. I n out.
j major i h mi cs site I avoue ouentallon
orientation increase 1r'1 sq. tt! -?'..
minated G duplexes. etc.
change In number Ol hUl @I rf301175, ETC
i_ Both projects are on the same lot
. _` - -- -
Both projects are on the saute for j
! rlrto191 @I'B re171"ea'4'itilnu de,%E'lleAlms tCt1Y I
1 t
Coupwil)(Ins'tJz party):Rcmv.7Pi nas.
I
,ttoaso, and dbfar7Ier r f
i
k : fttrn vci s rcprc�rntirtg Plaintiffs %VP17ellants
I
,Savc our nei, lborhoodi t
"In i dividt st tal representing tote he inter ests
t u
{frelnt {pat n7' Stephan G I %a nte,
of the residents. r < gttt sts Echo Beach It ` and 1
� ; Mirr is j
all pro ct approvals associated arch the
3
S'c ashm e I711tme protect be vacated and
j ` "SO Ile rill- r\`c i,hhorirao.l' tltrs avtq> Of
of dc,red that 15cho Ileac h Project man
,(
indi idtulra requested 17CIO e evil nnntental �
I xuhmittheirown applications fn a nc -w
� revierol m th., Gataivraa' Proiect °.
1121gjec tend conduct mdepetvdent
t
Thee r eglec vied ivrif ofSnandate to vacate
em'irnr2rrreratctl tevrew,, r
the Nonce u�deXtrntitaation, approncr7 qJ'
,ldlitiorral issues will also be raised regcrrdhtL 1
y Gatewcn Project as well as othertnat7ers �
- rolations oJ.Subdivision Alap,,Ict, Ge170-411
! associated with that proiuef, j 4
an 9frrnicipal ctidc, hicr.r and cnpyrisrht j
Pita /c c t uppr-rncth riolatcd C E0,4, )/cuntinn f
n(t tttgc>wEnt.
1 & >orrnlS Lairs, and tiles public tuts! i
I .l"nics:
In hot cases (presuruing mine may, go to litigation) grey vwm m h4hucd by conccmed
individuals radio fire ht the neighborhood that would ba negain ely affected be the now
dcvelopment that was approved, by City i ouneil.
"Real Parties in hncrcSf' In bout enscs. arc be (7_e>_+ owners he ,a
Mat the ae� ratans ownersh ad an aiig�tcdl `tIN1) n, urneht %ons_fiotlI us d different
arehiiecfs %set ofplauts.
Circumstances:
both eases, individuals who were negatively allecied by the new development
Iuestad that the City not approve the addendum to the Viitigawd Negative Dec €araiionn
nn a nrc6mm owner=s unhuih prujcet (submitted by the new, oienc',5, it hoth cases
q asked to v lew any ,t Trovnk and We independent cent nomin alai review as well
submitthy various oiler vioWtms of Taws mud macs. In hoth cases. the nor finyceis
xe on the sauve land with shilibir types of do clopmcin. but were itonadtde ctdfcrcnt
vuots with diffemilt jlropoucm -s t }out s tcn bears carlirr:. Tire e.arliei projacls «cte
ver iuM: Ow was sold to new otw ens. Both proh'cts used different architects and
Ifed ow difllermn watcrials. Both of the earlier projects had aVirtti aui Negative
tclwiuions that wcm conditional. Both had site and project -sn •cifte conditions than
uld only he RdMkd by uAV . to es n t set of spptov <t plans (t "PV [). 11111001 dzscn, the
jry iduals demanded that the City follow appropriate protocol by neyuiring iudgyendent
vilmancntal mviiccv and v,icuto any epiro als asnocLued with the prior Projects a, acct:
other issues and violations to support [lie goal oi' vacating, file affirm at and any
cocioted permits Based on the prior project.
III both cases petitioners allege the projects are mo gilt aria grulws =it c airy
Appellate Case 1. aw Save our Ncighhorhood c. I.ishaean (?WOV is tic mandatory
,utlaaity case, thatapptovtl ofmy petniou to
a [cute'. is nearly certain, (re tnigation Car approval of IScho BevadI project addendum).
r wIm s orated€ on same hh. - fIKr21k)Ta. KRJ s" mns N IVA 5I b =r are not z
ITY VIDE. IUD CE:QA IN RELYING' ON AN ADDENDUNT INSTEAD
NDITENIDENT E:Nt4RONAl .YrAI.. REVIEW.
Reakial cs. Bought;
a mininturn. both aslc(ed) that Council %acate ally and all ag ill—m ats associated Willi tile
w prujcel lbascd on approvals from the prior projeco. order ilea Independent
itonntenml review and order they nest submit new appiicatious in the app opria(e
Home
New Project Needs New Environmental Analysis, Not Recycled Study, Court
R U IeS
1. September n0i; - 12 ;00am
c ps,DK tstaff L.ege ; >iCie SC ( Vol. 2i No. 09 Sell 2006,
A mitigated negative declaration for a never -built project cannot be used for a subsequent, similar protect
proposed for the same site, the Third District Court of Appeal has ruled.
The court rejected the City of Placerville's use at a seven - year -old mitigated negative declaration With a
new addendum for a proposed hotel and retail development. The Court ruled that projects proposed for
the same site in 1997 and 2004 were unrelated, and the California Environmental Quality Act (CEQA)
required an independent review of the latest proposal.
For two decades, various developers have pitched prnjrcts for the 6.2 -a0re site — in a rural residential
area just north of Highway 50 in the Cold Rush city — involved in this case. in 1996, the city approved a
100 -unit motel fora portion of the property.': we years later, the city approved a 104 -unit motel,
restaurants, banquet facilities, lounge, retail area and gas station for the property. Nothing got built, and
when the proponent resubmitted plans forthe latter project in 1995, the city said no.
In 1997, the city approved the North Point project consisting of a 106 -unit motel, restaurants, and a gas
station with a convenience store and car wash. The project also involved a new, road to provide better
Highway 50 access. The city approved t -he project based on a mitigated negative declaration that said
Im
potentially significant pacts — such as inaeased runoff, traffic, noise, light and glare, and intrusion into
wetlands — could be offset to less than significant levels.
Again, no development occwred. In 2004, developer Edward Mackay submitted plans fora 102 -room
Holiday hill Express with convention facilities, plus a gas station with a lame convenience store and a
carmash. True Gateway proposal also included the access road and extensive grading, including. the filtlng
of 7..4 acres of seasonal wetlands and realignment of a drainage charnel traversing the wetlands.
The city prepared an initial study and mitigated negative declaration for the project. A group called Save
Our Neighborhood Insisted that the city should complete an environmental impact report. Instead, the city
put together air addendum to the North Point mitigated negative declaration, saying the 2004 Gateway
project involved only "minor changes" to the 1997 North Point project. In August 2004, the Placerville City
Councit approved the Gateway project, finding that the North Point mitlgated negative declaration was stilt
valid.
Save Our Neighborhood sued, arguing that the city violated CEQA. El Dorado County Superior Court judge
James Wagoner ruled for the city. On appeal, the Third District overturned the lower court.
A section of CEQA (Public Resources Code § 21166) and CEQA Guidelines § 15162 address the use gf an
aiready- prepared EIR or negative declaration when a project is being modified or conditions have
changed. "lie event of a change in a project." the court explained, "is not an occasion to revisit
environmental concerns laid to rest in the original analysis. Only changed cir¢imstance s-, and any
additional environmental impacts they cause, are at issue:'
Save Our Neighborhood, though, argued that the projects were unrelated, and that Guidelines § 15162
did not contemplate a city using a previous environmental document for a different project.
The city said tine North Point and Gateway pro;eas were related in that they both involved the same piece
of land, mix of uses and proposed connector road. The city cited numerous cases in which courts have
ruled that a new environmental review was not necessary when a project was modified years after its
initial approval
But the Third District found that those cases "do not stand for the proposition that an addendum may be
used if the project is replaced by another project that happens to be similar in nature, Each of the cases
cited by respondents [the city] involved only one project that underwent changes after completion ofthe
initial environmental review."
Iii fact, the city's initial study for the Gateway project "made no mention of the North Point project,"
Justice Harry Null Jr. wrote for the court. "Only after the city met resistance from Save Our Neighborhood
did it decide to treat the Gateway project as a modification of the North Point project.`
Hull continued: "Although planned for the same land and involving similar mixes of uses, the North Point
project and the Gateway project are different . projects nonetheless. They have different proponents and
there is no suggestion the latter project utilized any of drawings or other materials connected with
the earlier project as a basis for the new configuration of uses."
Concluding that the city violated CEQA by relying on an addendum to the North Point mitigated negative
declaration, the court ordered the city to set aside approval of the Gateway project.
The Case:
Save Our Neighborhood v. Lishman, No. C049525, 06 C.D.O.S. 5963, 2006 D3DAR 8335. Filed June; 29, 2006.
The Lawyers:
For Save Our Neighborhood: Stephan Volker, (510) 496 -0600.
For the City off Placerville: Whitman Manley, Remy,'rhomas, Moose K Manley, (916) 443 -2745.
r�, 2011 C-aiifomia Planning & Developmcni. Report
t1iL.
I ask ibr [he opportmriry to meet with you (between June 5th -I Oth) to discuss mvappeal of the "new"
project "Echo Beach ". The P.C. umppropriately; approved and adopted a resoim ion funding the "modified
p eject changes to he in "substantial conformance" wilh the origina12008' Seashore ViIiage'• project and
adopted all addendum to the previous nitig:tted negative declaration.
Echo Beach and Seashore Village are two entirely different projects with different plans and proponents
and acceptance of plans through an addendum to the MND is in violation of CGQA, the Subdivision Map
Act, the Municipal Code and die General Plan. 1 have consulted with two avomcys and v:as told I am on
solid legal ,_round with my points in my appeal. Please understand, I am not anti- development, but I do
insist that appioprime protocol demanded by ha' be followed.
I have substantial documentation that provide back -up to these legal points, any of which should normally
preclude the City from adopting an addendum for 'xulnumtial car jormon. ." and basing such amt a'minoi
I'evlslon
LEGAL POINT S AT ISSUE
1). Li is a NEW PROJECT, not a "inhun- revision" to the print project (sea "Save our Neighborhood
V. Lishman ").
2). The prim' 2008 project, (Seashore Village ") was cj ndldtwallr a )nrovett and had grepl a- sn+.'clftc^
conditions" (resolution 2008 -53, Esh. "B "). The mow project, (Echo Beach), submitted all entirely
new site plan, building envelopes. floor plans, height, setbacks, architectural style. eliminated diodes
buildings, increased sq. footage, INCREASED the number of buildings etc.. None of which can truly
he considered "minar revisions ".
3). Locid _ entitlements have afreadv EXPPiRED!
4). Municipal Cade doesn't allow adoption of "substantial conformance" by adderdtun to MND br
the Planning Commission unless applicant submits new permit to ntication (MC20.54). Staff report
(p. 10) cod6rnu that the Community Development Director(C.D.D) would not commit to
determination of" minor chi nges" as evidenced by the following: "Given ihc�i-nificaat visual
pint'fratFoos proposed in Ihis case, the C.D.D. is referring ties defenvhmtion us to whether the
proposed changes are minar to the Planning Coin miss ion fur review and final action..."
5). Staff Report (p. 10) CHANCED TNP: TEXT of referenced MC20.511 giving an incorrect
interpretation of code by addho, the following statement: .....enA iwrilm the re•< n' rutent fur a nell
dreamt onolicythitU afar, findnrg drat the clning_s: " while that, omitted the true phrase: "... trhrre the
Dlrccmr, iat imir tlaH fhe dnrugec... This goes beyond "interpretation".
F). Addifinn of 1 *hufid g(prerinpsly 12 SER & 6 duoler, current project is 24 SFR) and
substantial changes to tot con fgu ration and orientation, plus eonditimts of approval could not
possibly quailfy as "minor amendment" (MCI 9.12.090).
There are ninny more legal points that can be in regarding f its new• projecL and I look forward to
the opportunity to present Ihem in nmrc detail in person.
Laurie DeCart,
Correspondence
'S_ T Item No. 3a
ticho Beach (formerly Seashore V= Ilage)
PA2014 -005
April 3, 2014, Planning Commission Agenda Item Comments
Comments by: Jim Mosher (iimmosherna yahoo.com ), 2210 Private Road, Newport Beach 9266G (949 -
548E229).
Item No. 3: Echo Beach (PA2014 -005)
General Comments:
1. Although I applaud the Community Development Director for referring this matter to the
Planning Commission, I find the basic premise of the hearing a little hard to follow.
a. The portion of the Zoning Code (NBMC Section 20.54.070) used to explain the
reason for the hearing states that in the absence of some other explicitly stated
mechanism for allowing changes, there are two pathways by which changes may
be made to a previously approved project:
i. Section 20.54.070.8 allows the Director to approve minor changes
without a public hearing, or7efer anyrequested change to the original
review authority for review and final action.'
ii. The mechanism for the latter is very clearly spelled out in Section
20.54.070.0 which states that the changes "may only be approved by the
original review authority for the project through a new permit
application."
b. The present hearing seems to be an uncomfortable hybrid of the two pathways,
in which the original review authority (the Planning Commission standing in for
the City Council?) is being asked to verify the Director's findings that the matter
didn't really need to be referred to it, rather than the findings required by Section
20.54.070.C, namely the findings that would be made in conjunction with a new
permit application.
c. As a result of the above. I have trouble finding any basis or authority in the
Zoning Code for the Planning Commission to conduct the "substantial
conformance" review that the agenda announcement seems to be asking it to
perform. The term itself does not even seem to be defined.
To a non - planner's mind, a cursory review of the agenda packet suggests that very
substantial changes are being proposed to both the previously approved architectural
style and layout of the project. It is hard for me to see these as "minor" changes,
although in that connection, it would have seemed helpful to include the minutes of the
April II 17 2008, Planning Commission and (apparently very cursory) June 10 2008, City
Council meetings at which the original application was discussed, to understand exactly
what issues were debated and changes to which might have affected the approvals
granted. It might also have been helpful to include a copy of Tentative Tract Map No.
April 3,.2014, PC Agenda Item 3 comments - Jim Mosher Page 2 of 3
NT2007 -001 (which may or may not be in the agenda packet ?). since it is asserted the
changes are consistent with it.
"s. Original Condition of Approval 4 on handwritten page 87 of the staff report says that the
2008 approval would expire in 24 months unless extended. The staff report (page 2)
says "The project approvals will expire October 16, 2016, based on automatic
extensions pursuant to State law." Were local extensions granted? Or are there
automatic state extensions that override the need for local ones?
4. Does the Coastal Development Permit (which soecificaliv describes certain features of
the original project, including the architectural styles) need to be revisited in light of the
changes to the proposed project?
Regarding the Draft Resolution of Approval (Attachment PC 1):
1. Section 3: As indicated above, the "Findings" listed have been extracted from NBMC
Section 20.54.070, and are actually internal criteria to be used by the Director in
deciding if changes are "minor.' They do not make grammatical sense as presented.
This might be corrected by:
a. Changing the last sentence of the preamble to say something like: "The Planning
Commission held a public hearing and finds that the proposed 24 -unit
condominium development remains In substantial conformance will) the
approved plans of Tentative Tract Map No. NT2007 -001 (County Tentative Tract
Map No, TTM 17194), Modification Permit No. MO2007 -044, Use Permit No.
UP2007 -011 and Coastal Residential Development Permit No. CR2007 -001 for
the - fe8owing- reasons because the chances:"
b. Or alternatively, inserting "The changes _." in front of each finding as, for
example: "A. The changes are Are consistent with all applicable provisions of
this Zoning Code."
c. Without one of these, it is not clear from the resolution what the Planning
Commission is making findings about.
2. Section 3.A -4: "... units within the coastal zone shall be reviewed to ensure compliance
with Government Code Section 65590 (commonly known as the 1982 Mellow Mello Act)
3. Section 3.6: I would think the City Council's approval, after 2008, of the Newport
Banning Ranch project across the way from this, including a pedestrian bridge
connecting that property to West Newport Park might change the environmental setting.
I don't find this mentioned in the Addendum,
4. Section 3.0 -3: Existing Condition of Approval 6 (on handwritten page 87), cited here,
would seem to contradict.. rather than support the finding being sought: and the
underlying premise of the hearing that the Director did not really need to refer the matter
back to the original review authority. Namely. adherence to the building envelopes
April 3, 2014, PC Agenda Item 3 comments - Jim Mosher Page 3 of 3
presented in 2008 seems to have been an important condition of approval, meaning that
the Director could not write off deviations from them as "minor" changes. Simply saying
"the Condition remains relevant" does not seem to me to cut the ice.
5. Section 3.0 -5: "Condition No. 7 required the two structures (north and south of the
project driveway) that encroach into the side setback area immediately adjacent to the
east property line to be modified to incorporate design features to minimum minimize
building height impacts on the adjacent properties."
6. Section 3.0 -6: "These reductions in the setbacks to accommodate the smaller
detached, residential units resents result in a site plan that is more compatible and
consistent with the historic development pattem of the area rather than a single; larger
apathnent-complex."
7. Section 3.0 -7: "The approved 6 -foot separation between buildings is consistent with the
required 3 -foot side setbacks of the surrounding 30 -foot and 40- foot -wide lots in the
neighborhood, ..."
8. Section 3.0 -9: "A total of 62 parking spaces are proposed., 24 dedicated residential
spaces in garages and 14 open guest spaces, exceeding the 60 space minimum
required by both the previous and current Zoning Codes" [24 and 14 don't add to 62.
Something must be missing.]
9, Section 3.0 -10: "Conversely, the modified project significantly ine-Fease increases
landscape area ..."
10. Section 41: "The Planning Commission of the City of Newport Beach hereby finds that
the modified plans for the Echo Beach (formerly Seashore Village) project te-be are in
substantial conformance with the project approved by Tentative Tract Map No. NT2007-
001 (County Tentative Tract Map No. TTM 17194), Modification Permit No. MD2007-
044, Use Permit No. UP2007 -011 and Coastal Residential Development Permit No.
CR2007 -001 and that the environmental analysis of the modified plans is included in the
Adopted Mitigated Negative Declaration (SCH2O08021075) and the Addendum
consistent with the requirements of CEQA and the 8B-QA CEQA Guidelines."
June 10, 2014, Council agenda item comments - Jim Mosher Page 4 of 6
XVII. PUBLIC COMMENTS ON NON - AGENDA ITEMS
As the draft minutes of the May 27, 2014, regular meeting indicate, there was a promise made
at that meeting to bring back Item 11 ( "Dinghy Rack Rental Rate") at this meeting. I have been
unable to find it on the agenda.
e_ Item 14. Echo Beach Project Appeal (PA2014 -005)
The staff report does not seem to include the written comments I submitted to the Planning
Commission when this item was heard by them on April 3 (their Item 3).
As I understand it, the new owners are proposing a project that differs from that previously
approved in several respects, including: (1) major changes in architecture, (2) duplex units
replaced by detached dwelling units, and (3) changes to site layout and circulation.
I tend to agree with City staff and its planning consultant that since this consists of the same
total number of dwelling units on the same number of acres at the same location, there is not
likely to be much change in the results of the CEQA analysis.
However, from a City planning perspective, I have concerns as to whether we are following
Section. 20.54.070 ( "Changes to an Approved Projeco of our revised Zoning Code as adopted
in 2010.
Section 20.54.070 offers just two possibilities: either (1) the changes from the approved plans
are so minor they could not possibly have affected the original approval, in which case the
Community Development Director is authorized to approve the changes without a public
process; or (2) the changed project is referred back to the original review authority as a new
application.
I assume the architectural style and the duplex design were considered in the original approval,
and generated conditions of approval. Since the deviations from what was promised are quite
large, it seems obvious to me the changes do not meet the criteria specified in Subsection
20.54.070.6 for `Minor Changes Approved by the Director Without a Public Nearing." As a
result, whether the new project is better or worse than before, the clear language of Subsection
20.54.070.0 dictates that the original review authority needs to treat the new proposal as if it
were a new application — not simply perform a "substantial conformance" review (a term and
process not defined in the code).
In view of that, the present case points up two uncertainties in this section of the 2010 Zoning
Code that could be clarified in a future revision:
1. When an application has been appealed, is the "original review authority' referred to in
this section intended to be the body that first reviewed the application? Or is it the one
that last heard the application and granted the approval?
2. Is there intended to be a mechanism — as the Planning Division seems to believe there
already is -- for the "original review authority," short of conducting a full new review, to
make findings confirming the existence of only "minor changes" as specified in
Subsection 20.54.070.8?
June 10, 2014. Council agenda item comments - Jim Mosher Page 5 of 6
It might seem obvious from the wording that the °original review authority" would be the one that
would process a new application, but if the original application was denied by them, it would
seem like it would be the one who granted the approval that would decide if they would approve
the changed project.
Item 15. Fiscal Year 2014 -15 Budget Adoption
1. 1 believe a promise was made at the May 27 Study Session to bring back an item for
public review detailing how the harbor permit fees were spent. Although the City website
has a page that was apparently started to disseminate such information, I believe
something more current than that was planned.
2. Regarding the proposed salary range adjustments:
a. I find it strange that the Police Chief costs the City more ($300,739 total salary
and benefits for FY2014 -15) than the City Manager ($283,963). Generally one
would expect subordinates to make less than their managers.
b. The much ballyhooed idea that employees are now paying the full amount of
their "employee contribution" to CaIPERS, and more, loses a bit of its shine if, as
seems to be the case with the Police Chief, the basic pay rate has been adjusted
upwards so that the increased contribution causes no decrease in take -home
pay. If the take -home pay has been adjusted to offset the increased contribution,
it would seem to me the taxpayers are still effectively funding the "employee"
contribution.
c. Regarding the other salary range adjustments, the public may be curious what
happened to the Fox Lawson study of City pay scales, last heard of as Item 17 at
the August 13, 2013 meeting, and whether its results may trigger major
adjustments to the budget being submitted for approval.
3. Regarding the staffing changes:
a I am a bit confused by the statement at one of the study sessions that the Crime
Suppression Unit is being completed this year by adding the final officer to it —
yet no changes in police staffing are indicated in the Staffing Changes tables on
page 4 of the present staff report. Is the new Crime Suppression officer a
transfer of someone currently assigned to some other duty?
b. However that may be, I feel the reduction in staffing levels is something of a
fiction, since we have so many professional services agreements with outside
people performing staff services that no one seems to know how many people
we actually have working for the City zu any moment. This phantom staff seems
to be growing rather than shrinking.
4. Of the proposed budget items that do not appear in the Budget Checklist because they
were part of staffs original proposal to Council in April, but which to me seemed to
appeared but of the blue' with inadequate public review, is the $400,000 in the Capital
Improvement Program to design and construct entryway arches at Balboa Island and
Balboa Village. I am not sure who wants these, and why, and how they will benefit the
January 8, 2014
Mr. Jaime tnudlie
City of Newport Beach
100 Chili: Center Drive
Newport teach, CA 92660
Subject: Proposal to Prepare an Addendum to the Seashore Village Mitigated Negative
Declaration for the Updated Project Renamed Echo beach
Dear Mr, Murillo:.
Thank you for the opportunity' o propose our services to prepare environmental documentation for the proposed
Echo Beach residential project at 5515 River Avenue in the City of Newport Beach. The Planning Ceme(IDC &E
prepared the Mitigated Negative Deciarationimidal Study for the Seashore Village residential project in 2008
(approved project) at the same location. We understand the desire of the City of Ilewpor Beach (City) and project applicant to move toward with the
environmental analysis for the proposed residential project in a timely and thorough manner, We also understand
your objective for defensible environmental documentation pursuant to the California Environmental Quality Act
(CEQA) for this project.
We have reviewed the materials forwarded to us, including the concise statistical comparison of the former
Seashore Village project and propowd Echo Beach development. Rased on our review, we agree with the City
that the proposed project would be eligible for processing with an addendum to the adopted 2008 MND,
pursuant to CEQA Guidelines Section 15164. According to Sec tion 15164, an addendum to an adopted negative
declaration may be prepared if only minor techncal changes or additions are necessary and the project would not
result in new significant environmental effects or subsantially increase the swerity of previously identified
significant effects.
Joann Hadfield, Principal, Enviror.,mentai Services, will serve as project director and he responsible for overall
quality control. EI¢abeth Kim, Associate, the project manager for the Seashore Village project, is proposed as our
project manager and the City's primary day -to -day contact for this assignmenc. The environmental team will be
supported by our in-house technical staff, graoh¢s, editing, and clerical staff.
Project Understanding
The project site is currently developed wilh a 54 unit apartment complex, which will be demolishetf as part of the
project. The proposed project involves development of a 24 -unit residential project, which is the same number of
units as the 2008 approved proje�,. The new residential project would provide 24 detached units compared to
the previously approved 6 duplee units and 12 detached units (totaling 24 units). The proposed project would
have a substantially, different architectural style. from plantation style to modem style, but the maxlmum building
height, minimum distance from building to building, and setbacks would be comparable to theapproved project
and would not exceed the approved project Additionally. the total building square ,hostages would increase only
by 1,836 square feet- -from 50.964 square feet (approved) to 52,800 square feet (proposed). Therefore, it is
assumed that sim4ar types, numbers. and duration for construction equipment would be usW, No changes to
Orange Caumy • Northem Calitornto • to; Art ,, ^bsj OuHntc,.n • luxsngeles /4 :bs: • bvim :d 6111 re • San Diaya
_. _. .._.__. _. -__.__ .___.. ._
} ,.T.I, .o.c �a i4U l.eorn ..•.4th. 1. l P. "' t."' ,, I. icpepnlm mn
32 MODIFIED PROJECT DESCRIPTION
'The property owner /dwcopet proposes to redevelop the project site in substantial conformance with the
Approved Project. As with the Approved Project, the proposed project would involve asbestos abatement,
demolition of the existing 54 -unit apartment complex, grading, and amstruction of a 24 unit detached
condominium dew'elopmem. However, the Modified Project would modify the approved site layout and
change the architectural styles, instead of '12 single- Family units and 6 duple, units, the Nfodified Project
would provide 24 detached units. The changes in developmeur summary are d"cnibed it) ']'able 3 -1, Ayipmued
Praia: n,d ll lodifird Prnjerl Gbmpari on Derzlopmrnr Srmmmv y, The. revised site plan is shown In Figure 7, Akidilird
Pmlect .file Nair, Ind building elevations are shown in Figure H, IfuildigG Ele »ationr, aril Figure 9, i!Iraa1
,Sinm/arfmr. The Modified Project would provide three huiltling plans plus enhanced huikling elevations for
mrucrures along River Avenue.
The awx developrncnt plan wwld pro,ode a total of 56,91(1- square feel (if building area, an increase of 210
square feel from the AFprovrd Project (54706 square f c6,, and change the architectural style from
Crrfc'nan anti piantadnn styles to Modern contemporary style. 'five new development would have a front
setback of 10 feet for Seashore Avenue, River Avenue, and the west side. 'I'll c east side setback would range
ffnit) 6 fee, to 12 feet. These setbacks are within the rmge of or exceed the respective values established for
tit, Approved project. The rremmuot midpoint height would range horn 2d feet 11 inches to 30 feet 9 niches,
exceeding the rulgcins height set for the Approved Project.
- Be revised its layout would slightly reduce the total building footprint from 35.9 percent (Approvers
Project) m 34.6 percent (Modified Prof ct)and pavemcnt coverage from 35.4 perccnr (Approved project) of
27,3 percent (- Motfied Project. The total landscaping area would inceense from 26:2 percent (Approved
Proiec.; or 37.1 percent (btodificd Proiectj and incorporate design features such as turf blocks, pervious
parking, pervious pavers, and water- cousercing plants.'Thr proposed landscaping plan is shown in Figure AL
( :nnaptual I anrrrapr Plan.
Parkipg and Access
A,, with the Approved project, the project site would continue to be accessed from River Avenue and
Neptune Avenue However, the Modified Project would {intimate the wcst driveway on River Avenue,
alinwing our additional on- street parking space on River Avtaufe. This driveway originf:liy provided an
cscteavc access ut one single- fannily unit in the Approved Project_ A total of 62 parking splices would he
provided onsiw, including 2 garage spaces per unit and 14 off - strew guest parking spaces. Coastal access
compliant with dfe Anencan Disabitides Act (AAA) would be provided from River Ave:nuc to Seashore
Dove.
4+ ' 1 sr„. f o . if n / x t Un e I um far of fl «.r urea paaeymree Puking dieom,f w enetnsed pavkl tg
v°�' :adln fl - n_W.ianu h ed ldan: ant t, st. uv v.ea
,VarrL 19(J I'u r 2f
-1Qi,
-}�� - •.may -_ '�j �y �� �]_ _ _ .. t _
I PLEASE TAKE NOTICE that, pursuant to California Public Resources Code section
2 21167-8, subdivision (a), a settlement meeting shall be held concerning the above captioned case.
3 The settlement meeting will be field on August 20, 2008, at 9:00 a.m. at the City of Newport
4 Beach City Attorney's offices, 3300 Newport Boulevard, Building D, Newport Beach, California.
5 This notice is filed by Respondent, CITY OF NEWPORT BEACH.
6 Dated: August -J 2008 REMY, THOMAS, MOOSE and MANLEY, UP
7
8 BY .�.
9 ASON I- HOLDER
Counsel for Respondent/Defendant
10 CITY OF NEWPORT BEACH
11
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.Assanibiv Bill No. 630
CHAPTER 453
An act to add Section 5536.4 to the Business and Professions Code,
relating to Architects.
[A,,Iw d by Cioecrnor rba bet 1, 1013. Filed win:
Smnx+vy oFSlale Ou4dmr t, 2n1'o_I
EYGISL\T. V 4 G( u.'skiVS PIGUV "1'
AB 630, Holden. Architects.
FXisbn_g law establishes the Califonria Architects Board within the
Deparnnent ofConsumer Atiuirs for the purpose. of regulating the practice
of architecture in this state. Existing law defines what constitutes an
architect's professional services.
This bill would provide that no person may use an architect's instruments
of service, as specified, without the consent of the architect in It written
contract, written agreement, or written license specifically authorizing that
Ilse. The bill would prohibit an architect from unreasonably withholding
consent to use his or her instruments of service from a person for wham the
architect provided the services, except as specited, The bill would provide
that this act is a clarification of csistirg law and does not take away any'
right otherwise granted by law.
The henple a,% rho Siate gfCaliJ7rnria do enval alJollalvs:
SECTION I, Section 5536.4 is added to the Business and Professions
Cale, to read:
5535.4. (a) No person mny use nn architect's instruments ofservice, as
those professional services are described in paragraph (2) of subdivision
tb) of Section 5500.1, without the consent of the architect in a written
contract, written agreement, or written license specifically authorizing that
Use,
(b ) An architect shall not unreasonably withhold consent to Ilse his or
her instruments of service from a person fill whom the architect provided
the .services. Au architect may reasonably withhold consent to Ilse the
instruments of service for cause, including, but not limited to, lack of full
payment im services provided or failure to fiilfill the conditions of a written
contract.
SF,C.2. 'Lhe Lugisiunue.finds and declares dint this outs aclnri8catian
of existing law and does not fake away any right otherwise granted by law.
45
c f' 1.
Commenter misleads. The revisions (although MAJOR) aren't the issue. It is the fact
that Echo Beach's so- called revisions to the "Seashore Village Project" are not a
modification of the prior project, but a new project altogether (the threshold question).
This situation is "on point" with Case Law in `Save our Neighborhood N. Lishman
(2006) ", where it determined (nearly identical situation) that the project was a new
rro'ect not a modification of a prior project approval, even if it was on the same lot with
similar uses. Court found it was a different nroiect because. it had new
proponentslowners and did not use drawings or materials connected with the earlier
project. (City's Copyright infringement of architect Todd Schooler's col�rrfglrted plmts rand
.subscitaent resulting violation of & &P Code 5536.4 (a) are addressed In detail later)
Echo Beach is a new Project, requiring independent environmental review (not related to
Seashore Village).
All associated Permits have expired. This is in violation of Subdivision Map Act (not
CE.QA) and Municipal Code Applicant would need to apply for any other local Citv
permits pertaining to their project as the referenced permits below were specific to
Seashore Village and have already expired, making any approvals invalid.
,e Tract Mao. Modification Permit # MD2007 -011, UsePermit #t';P2007 -011, and
Residential Development Permit #CR2007 -001 are all expired.
Staff presentation and report incorrectly asserted that all permits ( "approvals ") were
automatically extended along with the tentative tract map automatic approval, but this is
not the case: Staff report (p.2) stated: -
"Adopt resolution No._ `,finding the inodified project to be in snbstanthrl conforaraace
with the project rteshz approved by Tentative Tract Map No. NT2007 -001 (Counir Tentative
Tract plan No. TTAI 17194), Modifzcatiou Perntil.'Vit. ,WD2007 044, t.,W Permit No.
DP2007- -011, Coastal Reeidenfial Development Pernrit No. CR2007 -001 and that the
environmental analysis of the nwdifled plans is included is the Adopted Mitigated Negative
Declaration (SCH2008911075) and the Addendaaz is consistent with the requirements of
CL'QA and the CFQA guidelines."
"On Octaber 16, 2008, Coastal Der. Permit A'o. 5 -08 -154 was approved be the California
Coastal Conmzission, which also established the effective date of the Caty approvals. The
project approvals evil! expire Oct. 16. 2016, based un aulomotic estrncions pursuant io Slate
Ltot."
Automatic extensions did not apply to associated local permits for airspace
condominiums. Although automatic extensions (AB208, AB333, AB116) were granted by
the legislature, the associated permits were NOT automatically extended. Exception is for
a tentative tract fora "planned unit development ", which this project is not.
65863.9. Unless an earlier expirafion appears oo the face of the
permit. any permit which is issued by a local agency in conjunction
rsith a tentative subdivision map fora planned unit d_v_el�pp7vnt. shall
evolve no sooner than the aom-oved tentative man, or an, extension
thereof, whichever occurs later.
Local coastal development permits issued by a local agency in
conjunction with a tentative subdivision map for a planned unit
development shall expire no sooner than the approved tentative map,
and any extension of the map shall be in accordance with ilia
applicable local coastal program, if auv, which is in effect.
California Coastal Commission Permit will also likely be invalidated.
Commenter confirms "the City's determination is a separate review and must be
completed before the applicant can request review by the Coastal CmannissifnC' The
Commission would require that the tentative tract map it as in substantial conformance
to the 2008 Seashore Village conditioned plans as welt as their conditions of approval to
the Seashore Village. project.
City admits that the Echo Beach Project can't rely on the extension granted by
California Coastal Commission on Feb 2014 until substantial conformance review is
approved. The decision isn't final until determination of the new review from the Coastal
Commission at it future date. While it is true a California Coastal Commission permit
"runs with the land " subject to legal extensions, this is done in order to make sure that
the proposed development has conditions that can never be ignored, regardless of who
owns the property.
A permit for a project that has never been built may also run a ith the land, but the
permit would be specific to the approved, stamped plans. Seashore Village submitted
their plans in 2008 and received a Coastal Commission Permit with conditions based
upon those specific plans. The Coastal Commission granted an extension in Feb of 2014
basing it or "no changes to the plans', (which now would be deemed invalid until new
submission and approval).
The previous ow oar, Dacor Estates, applied for extension to the coastal permit 9 -13 -2013,
escrow closed 9 -27 -2013 and Dacor assigned the permit to the new owner. Developer of
Echo Beach never submitted the new project to the Coastal Commission even though
Echo Beach requested it substantial conformance review of their new plans to the City in
Jan. 2014, one month prior to the Coastal Commission hearing for extension. Once the
developer (Echo Beach) submits their entirely different plan, they will likely need to
resubmit for a new permit.
Conditions from Coastal Permit includes conditions that are "as proposed and
conditioned ":
Water Quality- Applicant shall conform to the WOMP dated 5 -3 -2007 (designed by
Todd Schooler) showing roof drainage in(] runoff from all impervious areas directed to
intihration /gravel bed drainage systems. No changes to the approved plan shall occur
without a commission amendment to the CDPermit unless the executive director
determines no amendment is required.
Future improvements special condition was imposed because a "proposed project raises
concerns that future development of the nroiect site potentially may result in a
development which is not consistent with the Chapter 3 policies of the Coastal Act" This
permit is an "as proposed and conditioned" permit.
Minor chauees , ottid trot haA_c hcen Loured i 4 2oS4.Q7Q
I still contend there is a misapplication of this code (for permits) based on the fact that
the subsection B, is for minor changes and must comply with all (a- d)fmdim4s°
a.).Perinits Are not consistent with zoning Code,
b).Modification permit did include multiple "features that were a basis for or subject of
findings in a negative declaration ", can be found in the City Council Resolution, i.e.
(duplex unit regarding setbacks, 30 wide foot lot and condition of approval to minimize
building of the two duplex units adjacent to existing properties.
c) It does involve multiple features that were the subject of conditions for approval, i.e.,
must be plantation or crxftsman style, roofs of the two structures that encroach into side
yard setback must use hip roof features and reduce height etc
d) The new project is expanding the number of buildings by 33% from 18 buildings to 24
buildings and removing 6 duplex units that further limits rental stock housing.
It is only after the Director finds compliance with all four required findings that she can
then refer the "minor change' to the Planning Commission for review and final
authority (it is nut for the actual determination as to whether the proposed change is
minor.
In other words, subsection B less 2 requirements, if At can first comply with the 4
findings "minor- changes" then #2 allows the Director, after she has approved the
changes as being minor refer the change to the planning commission for review and final
action.
The staff report stated: `given the siffilirwant visual nt leMatrons proposed in this case,
the Community Development Director is referring the determination as to whether the
proposed changes are minor to the Planning Coinnaission, for review and Jour( action:"
The parameters re Echo Beach's modifications as a "minor change" eaWt be found (in
a -d) and there is already an admission by the Director in the staff report that the changes
are significant.
Bottom Sine, it is a moot point, the associated permits have expired and Echo Beach
proposed changes are not consistent to fnudings required for a rninoramendntent to the
tentative tract map MC 19.12.0941..
Following is MC'20.54.07Lfor reference:
B. Minor Changes Approved by the Director Without a Public Hearing.
I. The Director may authorize minor changes to an approved site plan, architecture, or
the nature of the approved use, . without a public hearing, where the Director first finds
that the changes: (stalf"'report innitted the underlined)
a. Are consistent with all mudicahle mmvisions of this Zoning Code:
L
b. Do not involve a feature of the project that o as a basis for or subject of findings or
exemptions in a negative declaration or Environmental impact Report for the project;
c. Do not involve a feature of the project that was specificatly addressed or was the subject
of a condition(s) of approval for the project or that was a specific consideration by the
applicable review authority in the project approval; and
d. Do not result in an expansion or change in operational characteristics of use.
2. 1 he Director may choose to refer any requested change to the original review
authority for review and final action.
C. Changes Approved by Original Review Authority. A proposed change that does not
comply with the criteria identified in subsection (B) of this section (Minor Changes
Approved by the Director Without a Public Hearing) may only be approved by the original
reviet+ authority lot- the project through anew permit application filed and processed in
compliance with Chapter 2050(Permit Application Filing and Processing) and the
applicable provisions of Chapter 20.52 (Permit Review Procedures). (Ord. 2010 -21 § I
(Exh. A)(part), 2010)
'tentative Tract Map NT2007 -011 . Any changes to an approved tentative tract map is
found in title 19, "Subdivisions" MC19.12.090 ( text shown below).
1').12.090 Amendments to Approved 'I entative Maps.
A. Minor Amendments. Minor amendments to approved tentative tract or tentative
parcel maps or to any condition of approval thereon may be approved by the Planning
Director provided the Director determines that all of the following criteria are met:
1. No Iuts,.units, building sites or structures are added to the project;
2. The changes involve no substantial change in lot configuration, street layout,
improvements or conditions of approval;
3. The changes are consistent with the intent of the original tentative map approval;
and
f. The resulting tentative map remains in conformity with this Subdivision Code, other
applicable provisions of the Municipal Code and the Subdivision Map Act.
A minor amendment shall not alter the expiration date of the tentative map unless an
extension is also approved in accordance with Chapter 19.16.
B. Major Amendments. If the Planning Director determines that a proposed
amendment to an approved tentative map or to any condition or approval thereon does
not meet the criteria for a minor amendment set forth in subsection (A) of this Section,
the Director shall require the filing of a map amendment application and fee. Such major
tentative map amendments shall thereupon be reviewed in the same manner as an
original tentative map application. If such a major amendment is approved, the
expiration date of the amended tentative map shall be determined from the date of
approval of the amendment. (Ord. 2001 -18 § 2 (Exh. 2A -1) (part), 2001)
i The square footage calculations are incorrect. The modified project description states
that "the new development plan would provide 50,916 sq. ft., an increase of 210 square
i feet from approved project (50,706 square feet)' .... .. rhe new project Echo Beach is
I substantially larger. There :ire other miscalculations, but this should be easy for a plan
1 checker to verify. Because these calculations are incorrect, the other calculations 1
regarding landscaping etc., would also be off. Parking spaces must be `off street ", j
meaning on the owner's own lot. 2.5 per unit is required. Modified plans only provide 48, F
7 the with the other 12 guest spaces that are off then -lot in cut outs off of Neptune Ave, or
j as the Echo Beach project inappropriately calls it, a drive aisle. The it guest parking
7 spots are for the general public as Coastal Commission has a condition regarding the I
j parking remain for the public.
Sec analysis of "Save our Neighborhood v. Lishman case:
j There is no doubt, Echo Beach is a new project. Consultant cited cases that still include
just one owner, they are not at all close as the Save our Neighborhood v. Lishman case is
to this project_
3 ? The comment has once again missed the point. Please review the analysis, or better, yet, i
3 illustrate just one time in the history of Newport Beach that any project approval has
j been allowed the treatment that this large developer is heing affordad. Proper protocol is
not being firliowcd by ans h_etch of the imagination. _ _
4 There appeared to be considerable bias lending itself to a pre-approved outcome The E
f assistant City attorney interjected a warning during the proceeding, followed by the ;
Commissioners that seemed to rely completely on the planning consultant's presentation j
to determine the outcome. No true discussion. The planning consultant only addressed 1
environmental issues. Commissioners were cautioned as to what it was that they were
approving by the assistant attorney.
i 1 It is hard to understand how all of the significant conditions were simply ignored. One
I Commissiouer's behavior }cent beyond tieing professional.
My appeal letter addressed the hias that I felt was illustrated that evening. iVl)• point is
i even more compelling after listening to the audio tape (prox. 2:03).. I've included the
exact verbiage from the attorney's warning, as )our comments regarding exactly what €
was said was not exact either. The comments were indeed made after the commissioner {
i
! was handed the material hoard and then wanted to follow up on the CC &R /parking
issue he had earlier mentioned. After the following warning, the Commission barely
sport two minutes looking at the board materials. The following is exactly, what she said:
I (The diffrerdty with your request is that this isn't an entitlement before you, this is a
determination ofsubstarrfial review, and we're asking, um, the staff's recommendation is 1
that you find flue project as proposed, as wod�rted, is consistent with the prior tract map.
prior approvals, uh, name of those conditions are actually before yam That wasn't reviewed,
that wasn't a,gendized fouigkl, oar, and it might certainly fiat be appropriate far the actions {
before your, urn to in effect add a condition of approval. So we recormnend that you rot da so i
( as pnrt�tbiv actioif, um, however year noLn abed garage use fro we do ntnember thou __
fi-oat the other entitlement and 7 am certain drat now that planning staff, when they are
looking at their projects !Jeep will take that into consideration bat as we addressed with that
other project, tite Lida Villas project, is that might also be an+ addresser[ in code
enforcemern tirnceedings tort in that people are if they're not rising theirgarage there are
other neechanisins to address that issue. So, again, we recommend that you go with tire
action that is before yon tonight, rnn,,,and iif von choose not to take file recornntentled a ction,
give direction to staff,, eau, but that leasn't the application that was suhmitted'
Where exactly is the guidelines for the City's "determination of substantial review "? It
doesn't exist.
Change are significant and they are numerous. As far as the loss of duplex units, I am
certain this impacts rental use. A loss of duplex unit will affect rental stock. A buyer of a
SFR can indeed rent it out, but with it duplex, an owner only lives in one unit
guaranteeing at least one unit will remain a rental. It is already troubling that 54 families
were evicted March 30 2014 with out any relocation expenses during a difficult time of
City was not only a part of settlement negotiations, Jason Holder, (Remy, Thomas,
Moose & Manley) was outside counsel for the City. Jason filed the notice of mandator ;y
settlement on August 5, 2008 to be held at the City attorney's office with Aaron Harp,
myself, and Mr. Schooler and his attorney.
The dismissal was based on a mitigation of damages agreement and the City had a copy
of it as I did not request confidentiality. My CEQA case was dismissed without prejudice.
Seashore Village settlement was binding on successors yet the applicant has not honored
it even though applicants were aware of and had a copy of the settlement. Todd Schooley
confirmed that lie would always abide by the settlement long alter his financing fell
through as he hoped for a recovery and he stated he was the only one who could build
those pons so I was protected.
The point is that Todd Scheeler knew he was the only one who could build those plans.
Ile had an option to purchase the land from the prior owner, he did not stork as an
employee of the previous owner and the plans belong to Todd Schooler and now to the
estate of YIr. Schooler. There is already copyright infringement regarding the Architect,
Todd Schooler who did all of the work in obtaining the entitlements.
The Planning Commission should have understand that the conditions to the project and
the site specific requiring no change in floorplans, building envelopes, architectural style
being Crafstman and plantation were all in the resolution . The settlement relied on these
very important condifious and City was aware of this, yet Commission x as cautioned not
to review the conditions.
10 1 ('E -QA ddemands that yoia don't refit an action to .i later date Cei-tamly there were 6
years and oddly, these corrections are still needed. The issues aren't just CEQA, but how
1 can a tentative tract map have such glaring mistakes and he approved. Has there been
i any study regarding the Fire departments requirement for building setbacks that has
been updated since the 200$ project. Because the width on the `l -I'M actually showed the €
j road as 24' wide, then conditioned as 26', the City policies demand that it be consistent
with the existing street width. SMbacf s for the road appear to be the real reason these
facts arc obscured. Calling a street a driveway is not appropriate and is contrary to the
1 General Flan.
f 11 Thee are a number of Cities that have guidelines for "specific conformance reviews
The City has no procedure, but if it did and was anything like the other cities, there is no
.way the numerous changes could be considered minor. _
r I'' } That is what w as said although I didn t know what if auk ugnificsmce there was to tht+
I2 I his is not the case. Separating the duplex units into two complete buildings made !
t , matters far worse regarding visual impacts, light, overshadowing, tack of air flow eta..
f ( They unit next to its on the Neptune side will have less than a 5' setback while my duplex
i is required to havoc 20'setback. My house was the only one that didn't have the map put
revised setbacks oil. Iii other words, our unit is one of a handful that actually complies
with the legal conforming setbacks.
f ! Adding 6 additional building, reducing the size of the lots from the required 30' to 26' i
' and the increased height, etc does nothing to give added light and open space to the
1 adjacent structures. It simply compounded things by adding a second set of neighbors on
{ ( my side property line where they will use this area as their back yard and the 2 buildings
side by side, extend out further than the prior one did. E
I
Prior project had a landscaped public access path right nest to our house with 12.5'
i separation to keep the nearly double the height building from overwhelming my
property. There is no legitimaey to some of these statements commenter made. They f
instead serve as a catch phrase in order to check a box. The new project is far less #
compatible.
1 14 Please provide the hearing that allowed for these setbacks to be so substantially reduced
for some but not for others.
1S I I bOiev-e I said that the planning consultant stated that the} vi ouldn't do an addendum if !
f tfie.re were inv new medications of conditions.
19 . NO, the view point is less than 700' from the property and viewpoints that are proposed
can't be conside ed until they are built Sunset Ridge Park is finally designated as a
viewpoint and _w a +n t approved as such in 2008 _
22 City demands that the road is consistent with the existing road A sidewalk doesn't just t
terminate between one house and the next. _
llasrng the Traffic engineer defer 23corrections until approvals are in instead of
requiring revised plans doesm'tappear to be consistent with how other projects are
treated.
23 Belief" it wont impact right of vvay and circulation is not appropriate for CEQA, it
must be studied. The AU A path is not in all appropriate place_ It is right next to the
f Tennis court s so unless are the one mr two ears at the very end of idle street,. no one