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HomeMy WebLinkAbout20 - Newport Coast Recovery Request for a Stay of its AppealCITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY DATE: April 7, 2009 TO: Honorable Ma or and City Council FROM: David Attorney RE: Newport Coast Recovery's Request for a Stay Of Its Appeal of the Denial of Its Use Permit; April 14, 2009 Agenda, Item No. 20 As we were finalizing our staff report, we received a request from Newport Coast Recovery, LLC's ( "Newport Coast Recovery') attorney, Steve Polin, Esq., requesting a stay of the appeal hearing in this matter. We attach an email chain dated April 7, 2009 along with a copy of Mr Polin's letter making that request as Attachment "A" for your review. As you can see from the email chain, we informed Mr. Polin the decision on whether to stay the appeal would need to be made by you on the night of the hearing. On this issue, the history of this appeal is as follows: • February 4, 2009: Hearing Officer's decision final. • February 11, 2009: Newport Coast Recoverys initial "Appeal Notification" executed by Michael Newman on behalf of Newport Coast Recovery. • February 24, 2009: Application to Appeal Decision of Hearing Officer filed by Applicant. • March 12, 2009: Office of the City Attorney letter to Appellant re appeal hearing scheduled for Council March 24, 2009 agenda. (See, Attachment "B. ") • March 18, 2009: Staff recommends continuance of matter pursuant to request of Appellant's counsel, Steve Polin, Esq., to date certain of April 14, 2009. • March 24, 2009: Matter originally scheduled for hearing on Council agenda and Council acts to continue matter to date certain of April 14, 2009, per staffs recommendation. • March 27, 2009: Office of the City Attorney sends letter to Appellant's counsel informing him of continuance to date certain. (See Attachment "c ".) • April 6, 2009: Office of the City Attorney sends Appellant's counsel an email of that date re appeal hearing and staff report schedule. (See, Attachment "A. ") • April 7, 2009: Applicant's counsel submits request for stay of appeal hearing through email and letter of that date. (Attachment "A. ") We have informed Mr. Polin that we cannot make the decision regarding the stay request, but we will brief the Council on the request and the issue will be addressed at the outset of the hearing on April 14, 2009. ♦- ATTACHMENT A Newport Coast Recovery's Request for a Stay on its Appeal of Denial of its Use Permit 04 -07 -09 email requesting for stay of appeal hearing Hunt, David From: Hunt, David Sent: Tuesday, April 07, 2009 11:25 AM To: spolin2 @earthlink.net; Kiff, Dave; Wolcott, Cathy; T. Peter Pierce Cc: chris brancart; mnewman1960; paul.e.smith; dana mulhauser Subject: RE: Newport Coast Recovery reasonable accommodation request Mr. Polin, Thank you for the clarification. I will present this request to the Council as I finalize my staff report today. Yes, you have my permission to deal with Mr. Kiff in the submitting Newport Coast Recovery's request for a reasonable accommodation. Thank you for your sensitivity on this topic. Sincerely, ?David R. q"e City Attorney City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92658 -8915 (949) 644 -3131 city. newport- beach. ca. us _.._ . -- ........... .. .. .. From spolin2@earthlink.net [mailto:spolin2 @earthlink net] Sent: Tuesday, April 07, 2009 10:13 AM To: Hunt, David; Kiff, Dave; Wolcott, Cathy; T. Peter Pierce Cc: chris brancart; mnewman1960; paul.e.smith; dana mulhauser Subject: RE: Newport Coast Recovery reasonable accommodation request Mr. Hunt, Thanks for your quick response to my letter. I understand it is not your decision to grant a continuance, but the City Council's. I also understand that you are not the person tasked with processing the requests for a reasonable accommdation. If I have your permission, may I contact Dave Kiff directly to faciliate the process to insure the request is properly submitted? You are correct, Newport Coast is seeking a stay of the appeals before the City Council in order to process its request for a reasonable accommodation. In that regard, on behalf of Newport Coast Recovery, I am hereby waiving the requirement that all appeals to the City Council from the denial of a use permit be heard within 60 days. I hope this answers your questions. Steve Polin Steven G. Polin Law Office of Steven G. Polin 3034 Tennyson Street, NW Washington, DC 20015 202- 331 -5848 202 - 537- 2986(fax) spolin2Pearthlink.net This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510 -2521 and intended to be delivered only to the named addressee(s) and may contain information that is confidential, proprietary, attorney work - product or attomey- client privileged. If this information is received by anyone other than the named addressee(s), the recipient should immediately notify the sender by E -MAIL and by telephone 202 -331 -5848 and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the named addressee(s), except with the express consent of the sender or the named addressee(s). Thank you- ----- Original Message - - - -- from: Hunt, David To: spolin2(a)earthlink.net;Kiff. Dave;Wolcott, Cathv;T. Peter Pierce Cc: Chris brancart; mnewman1960; paul.e.smith; dana mulhauser Sent: 4/7/2009 01:04:41 PM Subject: RE: Newport Coast Recovery reasonable accommodation request Mr. Polin, Thank you for your communication. We will analyze the request to take the appeal off the Council's agenda. Is this a request for continuance, stay, or withdrawal of the appeal? I think it is in the nature of a request for a stay, keeping the appellate rights alive, but seeking to have the issue of reasonable accommodation addressed before the appeal on the use permit determination? Am I correct? If that is the case, we will need a waiver by your client of the requirement that the Council decide the appeal within 60 days. Does your client so waive? At this point, I do not believe I am in a position to grant such a request in light of our previous grant of a continuance of the appellate hearing, but I will, of course, present the request to the Council for consideration. Please clarify the request so I can accurately characterize it to the Council in my staff report. Thus the Council, as the appellate body, will address the issue of the request at the outset of the hearing scheduled on Tuesday, April 14, 2009 at 7:15 p.m. I also would like to be sure you submit the request for a reasonable accommodation through appropriate channels. I am ethically walled off from the permitting process. I am not involved in the administrative proceedings at all. My role is limited to advising the Council as to appeals of hearing officer determinations, ordinance issues and litigation matters. So please, if you will, be sure to submit the application for the reasonable accommodation through appropriate channels. By copy of this email, I ask that Mr. Kiff facilitate that application process and give appropriate direction to you regarding the same. Thank you for your attention to this matter. Sincerely, David R. ' wtr City Attorney City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92658 -8915 (949) 644 -3131 city.newport- beach.ca.us From. spolin2 @earthlink.net [mailto:spolin2 @ earthlink.net] Sent: Tuesday, April 07, 2009 9:31 AM To: Hunt, David; Kiff, Dave; Wolcott, Cathy; T. Peter Pierce Cc: chris brancart; mnewman1960; paul.e.smith; dana mulhauser Subject: Newport Coast Recovery reasonable accommodation request David, Please find attached Newport Coast Recovery's request for a reasonble accommodation along with the cover letter addressing our position as to how this affects the City Council meeting scheduled for next week. Thanks, Steve Steven G. Polin Law Office of Steven G. Polin 3034 Tennyson Street, NW Washington, DC 20015 202 - 331 -5848 202 - 537- 2986(fax) soolin2(cilearthlink.net This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C- Sections 2510 -2521 and intended to be delivered only to the named addressee(s) and may contain information that is confidential, proprietary, attorney work - product or attomey- client privileged. If this information is received by anyone other than the named addressee(s), the recipient should immediately notify the sender by E -MAIL and by telephone 202- 331 -5848 and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the named addressee(s), except with the express consent of the sender or the named addressee(s). Thank you. - - -- Original Message - - - -- From Hi.int,,,Qavid To: soolin2(a)earthlink.net Sent: 4/6/2009 05:53:35 PM Subject: FW: Newport Coast Recovery Appeal Permit Appeal; A09- 00397) Hearing - April 14, 2009 (Newport Coast Recovery Use From: Hunt, David Sent: Monday, April 06, 2009 2:49 PM To: Kit Bobko (PBobko @rwglaw.com); Steve Polin Esq. (spolin2 @earthlink.net') Cc: Peter Pierce T. (ppierce @rwglaw.com); Kiff, Dave Subject: Newport Coast Recovery Appeal Hearing - April 14, 2009 (Newport Coast Recovery Use Permit Appeal; A09- 00397) Gentlemen, As you know the appeal of Applicant Newport Coast Recovery is scheduled for hearing by the Newport Beach City Council on April 14, 2009. The hearing has been set for a time certain of 7:15 p.m. We will complete whatever matter the Council is considering at 7:15 and proceed to the Appeal, regardless of where we are on the Agenda. Our staff report will be routed to the Council on Wednesday, April 8, 2009. It must be in final form in the Clerk's office no later than noon on that date. If you wish to present anything in writing with the staff report, please have it to us no later than 10:00 a.m. on that date so it can be appended, copied, and routed. Of course you may route additional materials to the Council for their attention after that time. Please be aware, however, that the later the materials are submitted the less attention they can be given. The Council reserves the right to not consider substantial written materials submitted on the date of the actual hearing of the matter. Please also be on notice that since this matter was continued once for three weeks at the request of Applicant's counsel, we intend to proceed on April 14, 2009, in order to honor the schedules of other interested parties and the Council and in order to proceed with the City's business in an appropriate and timely manner. Vaa d R, gait City Attorney City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92658 -8915 (949) 644 -3131 city. newport- beach. ca. us STEVEN G. POLIN, ESQ. Attorney At law April 7, 2009 SENT VIA ELECTRONIC MEANS AND FIRST CLASS MAIL David R. Hunt City Attorney City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92658 -8915 RE: Newport Coast Recovery, LLP Reasonable Accommodation Request Dear Mr. Hunt, 3034 TENNYSON Sr. N.W. WASHINGTON, D.C. 20015 TEL (202) 331 -5848 Fax (202) 537 -2986 SpouQ @EARTuuNK.NE Please find attached a request fora reasonable accommodation submitted pursuantto NBMC §20.98.020 on behalf of my client, Newport Coast Recovery, LLP. Newport Coast Recovery believes that this reasonable accommodation request substantively affects the consideration of the City Council ofits appeal from the denial of its application of the Use Permit in Appeal No. A09- 00397, and if granted would render the appeal moot. Therefore, Newport Coast Recovery is requesting that Appeal No. A09 -00397 be taken offthe agenda ofthe City Council on April 14, 2009 so that its request for a reasonable accommodation can be processed by the City Staff. It is our position that since the City is currently in possession of all the necessary information necessary to process the request for a reasonable accommodation so that a hearing can be expeditiously scheduled before the Hearing Officer. Thank you for your consideration of this request. Sinc/ryly yours, cc: Newport Coast Recovery, LLP T. Peter Pierce Christopher Brancart Dave Kiff Catherine Wolcott Paul E. Smith Dana Mulhauser ATTACHMENT B Newport Coast Recovery's Request for a Stay on its Appeal of Denial of its Use Permit 03 -12 -09 letter to Appellant March 12, 2009 VIA FACSIMILIE (949) 673 -3098 AND U.S. REGULAR MAIL Mr. Michael Newman Newport Coast Recovery 1216 W. Balboa Blvd. Newport Beach, CA 92663 RE: MARCH 24, 2009 APPEAL HEARING OUR FILE NO: A09 -00147 Dear Mr. Newman: This letter is to give notice that your appeal of the decision of a Hearing Officer, in which your application for Use Permit No. 2008 -033, PA2008 -104 was denied, is scheduled for hearing before the Newport Beach City Council at its regular meeting on March 24, 2009. A copy of the appeal filed with the City Clerk is enclosed. The City Council meeting will commence at 7:00 PM. Staff reports regarding your appeal will be prepared and distributed by Wednesday, March 18, 2009. Council review of hearing officer decisions is limited to the administrative record of the hearing. If you have any additional correspondence you would like included as an attachment to the staff report, please provide it to my office before Wednesday, March 18. Please contact my office at (949) 644 -3131 if you have any questions. Sincerely, David R. Hunt City Attorney Encl. cc: City Council, (w /Enc.) Homer Bludau, City Manager (w /Enc.) Appeal letter Newport Coast 03.11.09 ATTACHMENT C Newport Coast Recovery's Request for a Stay on its Appeal of Denial of its Use Permit 03 -27 -09 letter to Appellant CITY OF NEWPORT BEACH[ OFFICE OF THE CITY ATTORNEY David R. Hunt, City Attiomey March 27, 2009 WA FACUARLE (202) 537«2986 Steven G. Polln, Esq. 3034 Tennyson Street, Nw Washington, DC 20015 1. =i . I�• r :. [ a. r r = � r r r r 1 4. h r s; • 1• Ilj. Dear Mr. Palm: We are wring to confirm that the appeal of the Newport Coast Recovery application for a Use Permit is scheduled for hearing by the city Council of the City of Newport Beach at its Apdt 14, 2009 meeting. The meeting will commence at 71)Opm and the matter is set for heaft for a Mm certain at 7:15pm; that will be the place and time for presanng your pW tan with respect to the appeal. The staff ►sport in this matter must be finalized for routing no later than Tuesday, April 7.2DO9. If yoU wish to have materials submitted to the Cowia'fatong wilh the staff report please provide them to # is office before .dose of bminess on that date. Please note, this howtv date has been established pursuant to one request for cordwance by the appkanVappdW, Newport Coast Recovery. and the City intends to mm forward and act o» the appeal on April 14.2WO wlthmit rurerer continuance. i I Please feel tree to contact our ofrmlf you have any questions or conoems. wr ..