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Home My WebLink AboutZischke, Michael H responseFrom: Zi schke , Mi chae l H. <mzi schke @cox castl e .com> Se nt: Monday, Jul y 20, 2020 4:41 PM To: P Cpubl i ccomme nt Cc: Gary She atz; 'rgarci a@ci tyoforange .com'; Ki m Ki nsl e r Subje ct: Publ i c Comme nt - Ite m #3.2 - TTM 50-20 and re l ate d acti ons Attachme nts: 11806193_1.pdf The attache d l e tte r i s submi tte d on be hal f of Mi l an Capi tal , re spondi ng to the proce dural poi nts contai ne d i n the l e tte r submi tte d thi s morni ng by Thomas Broz. Mi ke Zi schke Mich ael H. Zischke Cox , Ca s tl e & Ni c hol s on LLP 5 0 Ca l i for ni a Str eet | Sui te 3 2 0 0 | Sa n Fr a nc i s c o, CA 9 4 1 1 1 d irect: 4 1 5 .2 6 2 .5 1 0 9 | ma in : 4 1 5 .2 6 2 .5 1 0 0 mzi s c hke@ c ox c a s tl e.c om | vc a r d | bi o | web s i te Sel ec ted a s 2 0 2 0 "La wyer of the Yea r " i n Li ti ga ti on - La nd u s e a nd Zoni ng La w by U.S. News & W or l d Repor t- Bes t La wyer s ® Cox, Ca s tl e & Ni chol s on s el ec ted a s 2020 "La w Fi rm of the Yea r" i n La nd Us e a nd Zoni ng La w by U.S. News & Wor l d Report- Bes t La wyer s ® "Bes t La w Fi r ms ". For mor e i nfor ma ti on, vi s i t ou r bl og La y of the La nd Thi s communica tion i s inte nde d only for the exclus ive us e of the a ddres s ee a nd ma y conta in informati on tha t is pri vileged or confi de ntia l. If you a re not the a ddre s s ee, or s ome one re s pons ible for delivering this document to the a ddre s s ee, you ma y not rea d, copy or dis tribute it. Any una uthorized dis s eminati on, di s tribution or copyi ng of this communica tion is s tri ctly prohi bi ted. If you ha ve re ceived this communica tion in error, plea s e ca ll us promptly a nd s e curel y dis pos e of it. Tha nk you. Michael H. Zischke 415.262.5109 mzischke@coxcastle.com Cox, Castle & Nicholson LLP 50 California Street, Suite 3200 San Francisco, California 94111 -4710 P: 415.262.5100 F: 415.262 -5199 July 20, 2020 VIA ELECTRONIC MAIL Planning Commission City of Orange 300 East Chapman Avenue Orinda CA 92866 Re: TTM No. 0050-20, Minor Site Plan Review No. 1016-20, Environmental Review No. 1871-20 - Response to Legal Points Submitted by Mr. Thomas Broz Honorable Chair and Commissioners: This letter responds to the legal and procedural issues raised in the letter submitted this morning by Thomas Broz, asking that the Commission’s consideration of these matters be continued to a later date. As explained below, the points in Mr. Broz’s letter do not provide any basis for continuing the hearing on these matters, and it is entirely appropriate for the Commission to proceed with the hearing this evening. Mr. Broz references the pending referendum of the previously approved Trails at Santiago project, suggesting these actions should be delayed until after the referendum vote. The legal effect of the submission of the referendum per Elections Code section 9241 is to suspend the previously approved general plan amendment, and that is all that it does, it does not freeze all action on the property, and it is not a moratorium. Further, during the pendency of the referendum, the City is free to consider development proposals that are “substantially dissimilar” to the referended action. Lindell v. Town of San Anselmo (2003) 111 Cal.App.4th 1099 [when a measure is pending, city may not re-adopt substantially the same measure, but may adopt a different measure]. In Lindell, the court stated that the referendum provisions of the Elections Code do “not tie a legislative body's hands entirely. It does not prevent a legislative body or a city council from adopting any measures involving the same subject matter. In determining whether a subsequently enacted ordinance violates the stay provisions of [the Elections Code], we ask "whether the second legislative enactment is essentially t he same as the first." This case File No. 082654 Planning Commission , City of Orange July 20, 2020 Page 2 also cited an earlier referendum decision which held that a referendum does not bar approval of a “substantially dissimilar” development. Reagan v. City of Sausalito (1962) 210 Cal.App.3d 618. Here, the tentative tract map is an entirely different development than the much larger Trails at Santiago project, and the City and Commission are free to proceed. Mr. Broz asks why the City would accept another project application when there is an approved project for this site. The prior Trails at Santiago approvals are not now in effect, however, based on the submission of the referendum petition. Elections Code 9241 [the plan amendment “shall not become effective until a majority of the voters voting on the ordinance vote in favor of it”]. As stated in the resolution before this Commission, if these new applications are approved, the new approval by its own terms will disappear if the voters approve the Trails at Santiago project at the November election. Mr. Broz also references the certified environmental impact report for the project. Notably, the City’s ability to use an addendum to the prior EIR is not affected by the referendum, or the pending litigation against the EIR. Unlike a general plan amendment and land use approvals, certification of an EIR is an administrative act not subject to referendum. Also, by statute, an EIR under legal challenge is presumed adequate until a court rules otherwise. Public Resources Code §21167.3. The CEQA Guideline s and case law confirm that the City and applicant can move forward with additional approvals . CEQA Guideline 15112(b); Kriebel v. City Council (1980) 112 Cal.App.3d 693, 702. In Kreibel, the court specifically considered the ability of a city to process a subdivision map with litigation pending over the EIR , and the court held that “the city and Nielsen were at liberty to proceed with the processing of the subdivision map” and the approval of the map in that case withstood challenge . We appreciate the Commission’s attention to these points. Sincerely, Michael H. Zischke MHZ cc: Gary Sheatz, City Attorney Robert Garcia, Senior Planner Milan Capital Frank Elfend 082654\11806193v1