HomeMy WebLinkAboutAttachment 2 Appeal to City Council and Planning CommissionPLA.NNINO DIVISION
RECEIVED
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{., ?.rCity of Orange JUN 0 3 202
Community Development Department
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CITY OF ORANGE
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714-744-7220 APPEAL APPLICATION
APPEAL APPLICATION NO. 05 6 (, — 2�
This application must be filled out completely. Any appeal shall be filed with the Community
Development Department Planning Division within fifteen (IS) calendar days after the hearing or
action from which the appeal is made (OMC Section 17.08.050 C). The $1000.00 filing fee (initial
deposit — actual cost required) must accompany the appeal.
Name of Appellant(s)
The Orange JCP Project Owner, LLC, Peter Vanek
Address of Appellant(s) 888 San Clemente Drive, Ste. 100, Newport Beach, CA 92660
Phone No. (day) (949) 999-5716 (cell) (949) 307-3482
PROJECT INFORMATION:
TTM 0053-23; MSPR 1140-23; DR 5123-23; MMRP 0002-23;
Appeal of action on case number: Appeal No. 0565-24
Project address: 2200 North Tustin Street, Orange, CA 92865
REASON FOR REQUEST: Please s eci and explain WHY you are appealing the decision or
determination and indicate specifically the error or abuse of discretion (OMC Section 17.08.050 C).
On May 20, 2024, the City of Orange Planning Commission denied Appellant's appeal of Mr. Chad
Ortlieb's March 27, 2024 decision declaring Appellant's Application as being incomplete. Appellant maintains
that Mr. Ortlieb exceeded his authority and abused his discretion in finding Appellant's Application
incomplete, and therefore appeals the Planning Commission's May 20, 2024 decision denying Appellant's
appeal and affirming Mr. Ortlieb's determination. In support of this appeal, the Appellant incorporates and
reasserts each and every one of the arguments it raised before the Planning Commission in both verbal and
written arguments. (See attached Brief and Supporting Declaration and Exhibits hereto). Further, Appellant
contends that the Planning Commission failed to comply with the procedural requirements of Orange
Municipal Code sec. 18.09.050(a)(1), and otherwise abused its discretion in affirming Mr. Ortlieb's prior
decision, as the facts do not support that determination. In addition, Appellant contends that the Planning
Commission's resolution denying the appeal (Resolution No. PC 17-24) is legally deficient for failing to
provide sufficient facts to support the decision therein.
Appellant reserves the right to supplement its arguments at the time of the hearing in this matter, and
will do so via a presentation and/or subsequent memorandum (at a minimum). The record to these
proceedings, includes this Appeal Application, its attachments, and the record before the City pertaining to the
Appellant's Application, and the record concerning Appellant's appeal before the Planning Commission.
/3/ d lf
Signature of Appellant (or representative) Date
PLANNING DIVISION USE ONLY: Date of hearing or decision and hearing body Sd d
n
Application checked by I'CC a Date & Time Received
N:\CDD\PLNG\Administration\Forms & Templates\Appeal Form.DOC
Attachment
AoyO, . City of Orange
Community Development Department
F 300 E. Chapman Avenue
Orange, CA 92866
714-744-7220 APPEAL APPLICATION
APPEAL APPLICATION NO.
This application must be filled out completely. Any appeal shall be filed with the Community
Development Department Planning Division within fifteen (15) calendar days after the hearing or
action from which the appeal is made (OMC Section 17.08.050 C). The $1000.00 fling fee (initial
deposit — actual cost required) must accompany the appeal.
Name of Appellant(s) The Orange JCP Project Owner, LLC, Peter Vanek
Address of Appellant(s) 888 San Clemente Drive, Ste. 100, Newport Beach CA 92660
Phone No. (day) (949) 9995716 (cell) _(949) 307-3482
PROJECT INFORMATION:
Appeal of action on case number: TTM 0053-23, MSPR 1140-23, DR5123-23, MMRP 0002-23
Project address: 2200 North Tustin Street
REASON FOR REQUEST: Please specif
I and explain WHY you are appealing the decision or
determination and indicate specifically the error or abuse of discretion (OMC Section 17.08.050 C).
As explained in the attached brief, Mr. Chad Ordieb abused his discretion in declaring Appellant's
Application as being incomplete. (See attached Brief and Supporting Declarations and Exhibits
thereto.) The Appellant reserves the right to provide additional argument and evidence prior to, and
at the hearing on its appeal. The record for this appeal includes this Appeal Application, its attachments,
and the record before the City pertaining to the Appellant's Application.
Signature of Appellant (
PLANNING DIVISION USE ONLY: Date of hearing or decision and hearing body
Application checked by Date & Time Received
N:1CDD\PLNG1Administration\Forms & TemplateslAppeal Form.DOC
4/10/2024
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Rutan & Tucker, LLP
attorneys at law
RUTAN & TUCKER, LLP
Hans Van Ligten (State Bar No. 119323)
hvanligten@rutan.com
Travis Van Ligten (State Bar No. 301715)
tvanligten@rutan.com
18575 Jamboree Road, 9th Floor
Irvine, CA 92612
Telephone: 714-641-5100
Facsimile: 714-546-9035
Attorneys for Appellant
The Orange JCP Project Owner, LLC
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THE ORANGE JCP PROJECT OWNER,
LLC'S APPEAL OF MR. CHAD
ORTLIEB'S MARCH 27, 2024 NOTICE OF
INCOMPLETENESS
Orange Municipal Code section 17.08.050
2545/016909-0637 JCP PROPERTY OWNER's APPEAL FROM MARCH 27, 2024 NOTICE OF
20439611.2 a04/10/24 INCOMPLETENESS
1 I. Introduction
2 Pursuant to Orange Municipal Code section 17.08.050, The Orange JCP Project Owner,
3 LLC's ("Applicant") hereby appeals the determination of Principal Planner, Mr. Chad Ortlieb,
4 dated March 27, 2024 ("Incompleteness Determination"), declaring Applicant's Application
5 incomplete. As explained herein, the Applicant has met all of the necessary requirements under
6 the Permit Streamlining Act ("PSA"), while the City of Orange ("City") has missed numerous
7 deadlines and otherwise failed to comply with the requirements of the PSA and its own Municipal
8 Code. As a result, the Applicant respectfully requests that the City Planning Commission overturn
9 City staff s determination, and find that the Application is now deemed complete.
10 Please note that the Applicant reserves the right to update and supplement this appeal prior
I 1 to the City's chosen hearing date.
12 II. Background
13 On June 5, 2023, Applicant submitted, in person, an application (the "Application") to the
14 City of Orange using the Land Use Project Application form that was available on the City's
15 website. (See Declaration of Peter Vanek ["Vanek Dec."], ¶ 2, submitted concurrently herewith.)'
16 The Application was intended to act as both a preliminary and complete application for a
17 residential project on 7.8 acres within the existing Village at Orange Mall that will include 167
18 for -sale condominiums, 42 affordable (below market rate) accessory dwelling units ("ADUs")
19 with kitchenette (for a total of 209 units), a recreation center, and a 1,500 square foot restroom and
20 community meeting room (the "Project"). (Id.) Further, the ADUs will be deed restricted such
21 that any lease or sale of the ADU shall be at 80% AMI in order to provide housing for lower
22 income households to meet the requirements of Government Code section 65589.5(h)(3). (Id.)
23 On July 5, 2023, City Principal Planner, Mr. Chad Ortlieb provided a Notice of
24 Incompleteness ("July 5 Notice") to the Applicant. (See Vanek Dec., ¶ 3; Exh. 1.)
25 On September 1, 2023, the Applicant submitted a response to the July 5, 2023 notice,
26 responding to the various points raised by the City. (See Vanek Dec., ¶ 4; Exh. 2.) On or about
27
' All Application materials have been provided to the City to date, and as such are part of the
28 record of these proceedings. For the convenience of the City, the Applicant has attached copies of
the relevant documents demonstrating the correspondence between the City to date.
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attorneys at law JCP PROPERTY OWNER'S APPEAL FROM MARCH 27 2024 NOTICE OF
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1 October 5, 2023, Mr. Chad Ortlieb provided a supplemental response to the City outlining various
2 concerns the City had with the Applicant's September 1, 2023 submittal. (See Vanek Dec., ¶ 5;
3 Exh. 3.) On October 6, 2023, the City Attorney for the City of Orange also provided a response to
4 counsel for the Applicant, setting forth the City's legal position as to certain points raised by the
5 Applicant's September 1, 2023 submittal. (See Vanek Dec., ¶ 6.)
6 After receiving the City's October 5 and October 6 letters, the Applicant and City staff
7 agreed to conduct an in -person meeting at City Hall to discuss the various points at issue in this
8 case, so that the Applicant could adequately respond to the points raised by the City. (See Vanek,
9 ¶ 7.)
10 On November 8, 2023, members of the Applicant's team and City Staff attended the
11 agreed upon meeting. On behalf of the City, Chad Ortlieb, Russel Bunim, Anna Pehoushek, and
12 City Attorney Mike Vigliota attended the meeting. (Vanek Dec., ¶ 8.)
13 At the start of the meeting, Chad Ortlieb confirmed that Table A to the October 5, 2023,
14 letter was all that was needed to be addressed for the application to be deemed complete from the
15 City's perspective. (Vanek Dec., ¶ 9.) When the Applicant explained that some of the City's
16 requests were vague and/or unclear, the City directed Applicant to continue to work with the City
17 to address the comments raised therein. (Vanek Dec., ¶ 9.)
18 In regards to Comment No. 98 of the October 5, 2023 letter, the City explained that the
19 comment was stating that the Project had to be served by trash bins rather than trash carts.
20 However, because the City's code allows the City to approve Projects that are serviced by trash
21 carts, the Applicant asked for clarification on this purported requirement. In response, the City's
22 representatives at the meeting instructed the Applicant to contact Josh Soliz with the City to
23 determine what this condition required. (Vanek Dec., ¶ 10.)
24 Subsequently, on November 27, 2023, Mr. Peter Vanek conferred with Mr. Sol iz, wherein
25 he stated that he had no ability to approve the Project if it included trash carts rather than trash
26 bins. (Vanek Dec., ¶ 11.) As a result of that conversation, Mr. Vanek followed up with Mr.
27 Ortlieb, and asked for Mr. Ortlieb to provide guidance on how best to move forward via a
28 November 27, 2023 email. (Vanek Dec., ¶ 11, Exh. 4.)
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attorneys of law JCP PROPERTY OWNER's APPEAL FROM MARCH 27 2024 NOTICE OF
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I On December 1, 2023, Mr. Ortlieb responded, stating that he had not forgotten about Mr.
2 Vanek's inquiry, and stated "I'm still awaiting an internal response." After not receiving any
3 response, on January 3, 2024, Mr. Vanek again followed up with Mr. Ortlieb, at which point Mr.
4 Ortlieb infornzed him that he was working with Senior Assistant City Attorney Melissa
5 Crosthwaite who was out of the office for the remainder of the week, and that he would follow-up
6 on the trash enclosure issue upon her return. (Vanek Dec., ¶ 11-12, Ex. 5.)
7 On January 11, 2024, Ms. Crosthwaite contacted Applicant's counsel to set up a meeting to
8 discuss the ongoing discussions between the City and Applicant, which meeting initially occurred
9 in mid -January 2024. (Vanek Dec., ¶ 13.) During that meeting, Ms. Crosthwaite agreed to
10 coordinate with City Staff and to set up a call in the future to convey their decisions. (Vanek Dec.,
11 ¶ 13.)
12 Subsequently, on January 29, 2024, Ms. Crosthwaite and the Applicant's counsel again
13 met and conferred, where she agreed (a) that the City had the authority to allow cart service rather
14 than bin service, but (b) the City would not deem the application complete unless the Applicant
15 submitted a site plan for the Project that utilized bin service. (Vanek Dec., ¶ 14.) However, Ms.
16 Crosthwaite also confirmed that the Applicant could still submit its preferred alternative for cart
17 service as an alternative to the submittal. (Vanek Dec., ¶ 14.)
18 Shortly thereafter, on February 26, 2024, the Applicant provided its most recent submittal
19 in an attempt to work with the City, and address the outstanding. issues that the City wished to see
20 addressed. (See Vanek Dec., T 15; Exhs, 6-7.)
21 On March 27, 2024, Chad Ortheb sent a new incompleteness letter to the Applicant,
22 wherein it only identified the General Plan Amendment and Zone Change application as the sole
23 remaining item outstanding that would be required before the City would consider the Application
24 complete. (See Vanek Dec., ¶ 15; Exh. 8.)
25 Having now exhausted all attempts at working with City staff to address their concerns,
26 this appeal follows.
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attorneys at law 2545/016909-0637 JCP PROPERTY OWNER'S APPEAL FROM MARCH 27, 2024 NOTICE OF
11 20439611.2 a04/10/24 INCOMPLETENESS
I III. The Application was deemed complete as of either June 5, 2023, or by September 1
2 2023 at the absolute latest.
3 The Application has been deemed complete as a matter of law as of June 5, 2023, or
4 September 1, 2023 at the very latest. Accordingly, the Planning Commission should reverse Mr.
5 Ortlieb's determination and find that the Application was deemed complete as of June 5, 2023.
6 A. The Application was deemed complete as a matter of law as of June 5 2023 due to
7 the fact that the CitA, does not have Government Code § 65940 compliant submittal
8 requirement checklist.
9 The Permit Streamlining Act ("PSA") applies to all public agencies, including the City.
10 (Gov. Code §§ 65920-2.) As relevant here, the PSA requires the City to post online, a list of all
11 information that will be required from the applicant for a development project as well as all zoning
12 and development standards applicable to each parcel. (Gov. Code §§ 65940(a) ["Each public
13 agency shall compile one or more lists that shall specify in detail the information that will be
14 required from any applicant for a development project."], 65940.1.) Additionally, the PSA
15 requires that "[clopies of the information ... shall be made available to all applicants for
16 development projects and to any person who requests the information." (Gov't Code § 65940(a).)
17 Lastly, any revisions to these lists "apply prospectively only" and cannot form the basis for
18 finding an already -submitted application to be incomplete. (Gov. Code § 65942.)
19 The City ran afoul of these requirements by failing to provide a copy of the list required by
20 Govenurient Code § 65940 when requested by the Applicant, and because the City in fact does not
21 have any such list. With regards to the first point, in February 2023, the Applicant's counsel
22 reached out to the City's Planning Department to request a copy of the list that is required to be
23 provided pursuant to Government Code § 65940. (See Declaration of Erik Leggio, attached
24 hereto.) Despite this timely request, the City Planner that did respond, claimed that they were not
25 aware of any such list, and further failed to provide a copy of that list. (H) Additionally, when
26 the Applicant began searching to see if the submittal list was provided on the City's website, the
27 Applicant was unable to locate any such list.
28 By failing to provide any such list, the City failed to comply with the plain requirements of
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attorneys, at law JCP PROPERTY OWNER'S APPEAL FROM MARCH 27 2024 NOTICE OF
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I
Government Code § 65940. This failure resulted in Applicant not being required to submit any
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particular information in order for the Application to be deemed complete. Government Code §
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65943(a) states that a City can only find an application as incomplete by identifying in detail those
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items from the statutorily -mandated submittal requirement checklist. (See Gov't Code § 65943(a)
5
["If the application is determined to be incomplete, the lead agency shall provide the applicant
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with an exhaustive list of items that were not complete. That list shall he limited to those items
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actually required on the lead agency's suhmittal requirement checklist."]; emph. added.)
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Accordingly, because the City did not have a Government Code § 65940 compliant submittal
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requirement checklist at the time Applicant submitted its Application, the City was prohibited by
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State Law from finding the Application incomplete, rendering the Application complete upon its
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submittal.
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B. The Citv's Planning Director has not opined on the completeness of the
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Application, and therefore, the Application is deemed complete
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At the beginning of the permit application process, the PSA requires public agencies, such
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as the County, to "determine in writing" whether the permit application is complete, and to
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"immediately transmit" that determination to the applicant "within 30 calendar days" of its receipt
17
of the application. (Gov. Code § 65943(a).)
18
The agency's "incompleteness" determination is subject to statutory limitations under
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Section 65943(a):
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(i) "If the application is detennined to be incomplete, the lead agency shall provide the
applicant with an exhaustive list of items that were not complete.
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(ii) "That list shall be limited to those items actually required on the lead agency's
submittal requirement checklist."
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iil "In an subsequent review of the application determined to be incomplete, the local
( ) Y q pp �
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agency shall not request the applicant to provide any new infonnation that was not
stated in the initial list of items that were not complete."
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(iv) "Upon receipt of any resubmittal of the application, a new 30-day period shall
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begin, during which the public agency shall determine the completeness of the
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application.....''
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attorneys at law
2545/016909-0637 JCP PROPERTY OWNER's APPEAL FROM MARCH 27, 2024 NoriCE OF
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I Section 65943(b) further limits the authority of the public agency in determining the
2 "completeness" of any supplemental or amended application submitted by the applicant in
3 response to the agency's initial "incompleteness" determination:"
4 (b) Not later than 30 calendar days after receipt of the submitted materials described in
subdivision (a), the public agency shall determine in writing whether the
5 application as supplemented or amended by the submitted materials is complete
6 and shall immediately transmit that determination to the applicant.... [T]he public
agency is limited to determining whether the application as supplemented or
7 amended includes the information required by the list and a thorough description of
the specific information needed to complete the application required by subdivision
8 (a). If the written determination is not made within that 30-day period, the
application together with the submitted materials shall be deemed complete for
9 purposes of this chapter."
10 The City adopted an ordinance to provide for this review process, and specifically granted
11 certain individuals the ability to review and comment on submitted applications. In particular, per
12 the City's Zoning Code, the City's Community Development Director is required to decide
13 whether an application is deemed complete in writing within 30 days of receipt of an application
14 for a development project. (See Orange Municipal Code § 17.08.030(E); see also Government
15 Code § 65943.) If the City fails to comply with these requirements, Government Code § 65943
16 mandates that the application be "deemed complete." (Government Code § 65943(b).)
17 To date, the Applicant has never received a notice of incompleteness from the City's
18 Community Development Director. Instead, the City's July 5, 2023 letter was sent on behalf of
19 Chad Ortlieb, a planner within the City. Accordingly, the City failed to make incompleteness
20 determination as required by the City's own Municipal Code. Therefore, the Application must be
21 deemed complete as of June 5, 2023. (See Gov't Code § 65943(a) ["If the written determination is
22 not made within that 30-day period, the application together with the submitted materials shall be
23 deemed complete for purposes of this chapter."].)
24 Despite failing to respond in the required amount of time, on September 1, 2023, Applicant
25 submitted an updated application responding to the City's Jul 5 2023 letter. Subsequently,on
P pP P g Y Y
26 October 5, 2023 and October 6, 2023, 34 and 35 days after Applicant's September 1, 2023
27 submittal, the City provided two letters in response, again claiming that the application was
28
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attorneys at law 2545/016909-0637 JCP PROPERTY OWNER's APPEAL FROM MARCH 27, 2024 NOTICE OF
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incomplete. However, again, the letter was not signed by the City's Community Development
Director, but was instead signed Mr. Chad Ortlieb. Additionally, the City's response was more
than 30 days after Applicant's submittal. As such, the Application was again deemed complete as
of September 1, 2023. (See Gov't Code § 65943(b).)
Based on the foregoing, it is clear that the Application has been deemed complete by
operation of law at least twice — June 5, 2023 and September 1, 2023.
C. Applicant submitted a complete application through the September 1 2023
submittal at the absolute latest.
9
In reviewing the Applicant's September 1, 2023 submittal, the City identified only five
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items as outstanding issues that had to be addressed before the City would deem the Application
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complete. (See Table A to the October 5, 2024 Letter.) In particular, the October 5, 2023 stated
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that the Applicant needed to provide the following information or perform certain actions for the
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application to be deemed complete:
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• A request to amend the City's General Plan and Zone Code to accommodate the
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proposed Project
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• Landscape plan, wall and fence plan, a curbing plan and a lighting plan
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• Provide revise roof plans
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• Lighting requirements
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• Revise the Project to only utilize trash bins.
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• Coordinate with CR&R
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However. none of these items are identified in a Government Code § 65940 compliant
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submittal requirement checklist, because the City does not have one. Furthermore, the City's own
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Land Use Project Application Information Packet, which was and is available on the City's
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website does not identify these items in the Land Use Project Application Packet or the associated
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submittal checklist. (See Vanek Dec, Exh. 10.) Because these items were not listed in either a
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Government Code § 65940 compliant submittal checklist, or even the City's own materials, the
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City's attempt at requiring those items later was improper. (See Government Code § 65943(a)
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["That list shall be limited to those items actually required on the lead agency's submittal
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2545/016909-0637 APPEAL FROM JCP PROPERTY OWNER'S AMARCH 27, 2024 NOTICE OF
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I requirement checklist. In any subsequent review of the application determined to be incomplete,
2 the local agency shall not request the applicant to provide any new information that was not stated
3 in the initial list of items that were not complete."].)
4 Accordingly, because the City's incompleteness determination only focused on those six
5 impermissible items, the City's October 5, 2023 letter essentially admits that the Application was
6 otherwise complete. As such, the City must recognize the Application as being deemed complete
7 no later than September 1, 2023.
8 IV. The Citv cannot require the submittal of an application for a General Plan
9 Amendment and/or Zone Chance because the Project qualifies for the "Builder's
10 Remedy" under Government Code § 65589.5(h).
11 A. The Project Qualifies for the Builder's Remedy
12 The Housing Accountability Act generally limits a locality's ability to disapprove of or
13 impose certain conditions on qualifying housing development projects that provide the requisite
14 percentage of the relevant affordable units. In particular, where the applicant has proposed a
15 qualifying housing development project, localities are restricted from denying the project or
16 imposing certain conditions, unless the locality makes one of the following findings:
17 • The City or County has exceeded its Regional Housing Needs Allocation (RHNA)
18 for the proposed income categories in the development.
19 • The project would have a specific adverse impact on health and safety that cannot
20 be mitigated without making the project unaffordable.
21 • The denial is required by state or federal law, and there is no feasible way to
22 comply with such law without making the project unaffordable.
23 • The project is zoned for agriculture or resources preservation, or there are not
24 adequate water or sewage facilities to serve the project.
25 • The project is inconsistent with the city's zoning and/or general plan regulations. 2
26 The Builder's Remedy is a legal tool that allows developers, such as Applicant, to bypass
27
28 2 While not at issue in this case, the City has not claimed that any of the first four findings
would preclude the City's approval of the Project.
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I local zoning and general plan regulations when the relevant city has not adopted a substantially
2 compliant housing element as determined by the California Department of Housing and
3 Community Development ("HCD") , and provided the Applicant is pursuing a project "for very
4 low, low-, or moderate -income households." (See Gov't Code § 65589.5(d).) In particular, the
5 Builder's Remedy narrows the City's authority to rely on the fifth finding (i.e., zoning code and
6 general plan inconsistency), by not allowing it to rely on that finding if the City does not have a
7 housing element that is in substantial compliance with State law. (See Gov't Code §
8 65589.5(d)(f).)
9 Additionally, California law states that provided an applicant has submitted a preliminary
10 application within the meaning of Government Code § 65941.1 prior to the City's adoption of a
11 compliance housing element and the HCD's approval of the same, the subject project will
12 continue to be subject to the Builder's Remedy even if the City subsequently adopts a compliant
13 housing element. In short, provided the Applicant submitted their preliminary application prior to
14 the City's adoption of the housing element, the Project continues to enjoy the Builder's Remedy.
15 In this case, the Applicant met this deadline.
16 Per Government Code § 65941.1, a preliminary application shall be deemed to have
17 submitted its preliminary application (and thus vested its application in its ability to rely on the
18 Builder's Remedy), upon submittal of all of the information identified in Government Code §
19 65941.1 to the local agency, and payment of any permit processing fee. (Gov't Code §
20 65941.1(a).) Furthermore, whether the City agrees that an application contains the requisite
21 information is irrelevant. (See Gov't Code § 65941.1(d)(3).)
22 As explained in the Applicant's prior correspondence, the Application met the
23 requirements of Government Code § 65941.1 with the original June 5, 2023 submittal, and
24 provided further explanation and justification to the City through its September 1, 2023 submittal.
25 (See September 1, 2023 submitted by Applicant to City in conjunction with resubmittal; see also
26 October 6, 2023 Letter from Orange City Attorney [confirming preliminary application was
27 deemed complete by September 1, 2023 at the latest].) Accordingly, it clear that the preliminary
28 application was deemed effective as of June 5, 2023 and/or September 1, 2023 at the absolute
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attorneys at law 25451016909-0637 JCP PROPERTY OWNER'S APPEAL FROM MARCH 27, 2024 NOTICE OF
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II latest.
Both of these dates are well before the City's adoption of its current housing element,
which was submitted to HCD on or about November 3, 2023, and ultimately approved on or about
January 2, 2024. (See Vanek Dec., Exhibit 9 [printout from California's HCD website].)
Accordingly, if the Project qualifies as a "housing development project" under Government Code
§ 65589.5 for very low, low-, or moderate -income households, the Builder's Remedy applies.
A "housing development project" is defined as any use consisting of (i) residential units
only, (ii) mixed -use developments where two-thirds of square footage is for housing, and (iii)
transitional housing or supportive housing. Of course, the Project is for residential uses only, and
as such meets this definition.
Furthermore, "housing for very low, low-, or moderate -income households" is defined as a
housing development that is conditioned to ensure that at "least 20 percent of the total units shall
be sold or rented to lower income households, as defined in Section 50079.5 of the Health and
Safety Code." (Gov't Code § 65589.5(h)(3).) As explained, in the Application, the Project calls
for 209 units, inclusive of 42 affordable units, which is greater than 20% of the total Project.
Therefore, the Project qualifies as "housing for very low, low-, or moderate -income households."
Because the Project is a housing development project where 20% of the available units will
be sold or rented to lower income households, and because the preliminary application was
submitted before the HCD's approval of the City's housing element, the Applicant can rely upon
the Builder's Remedy in this case.
B. The Citv cannot Require the Applicant to Process a General Plan Amendment
and/or Zone Chance
Having established that the Project can rely on the Builder's Remedy, this also means that
the City cannot require the Applicant to process a General Plan Amendment and Zone Change to
accommodate the Project. As explained above, under the Housing Accountability Act, the City
lacks the authority and/or discretion to deny a qualified housing development project, unless it can
make certain enumerated findings under Government Code §65589.5(d)(5).
One of these findings provides that a City can deny a qualified housing development
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project if the City finds that the project would result in inconsistencies "with both the
jurisdiction's zoning ordinance and general plan land use designation as specified in any element
of the general plan as it existed on the date the application was deemed complete ..." (Gov't
Code § 65589.5(d)(5).) However, because the City did not have an HCD-approved housing
element prior to the Applicant's submittal of its application (inclusive of the preliminary
application), the City cannot rely on this finding in denying the Project. (Gov't Code §
65589.5(d)(5).)
Therefore, when as here, the application is utilizing the Builder's Remedy, the City cannot
require an applicant to process either a zoning code or general plan amendment, as such a
requirement would be directly contrary to the Housing Accountability Act.
C. The Application Must be Deemed Complete as of February 26. 2024 at the
Absolute Latest
In its March 27, 2024, incompleteness determination letter, City staff confirmed that even
from the City's perspective all of the necessary application materials were submitted to the City as
of February 26, 2024, except for the requested application for a General Plan Amendment and
Zone Change. (See City's March 27, 2024 Letter, Table A; Vanek Dec., Exh. 8.) As explained
above, the requested General Plan Amendment and Zone Change cannot be required by the City
where, as here, the Applicant is entitled to rely upon the Builder's Remedy. Accordingly, the
Application must be deemed complete as of February 26, 2024 at the latest. (See Gov't Code §
65941.1(d)(3) [noting no affirmative completeness determination is needed from the City for the
Application to be deemed complete].)
V. The Applicant Complied with the Timing Requirements of Government Code
65941.1
In correspondence from the City Attorney's office, the City Attorney claims that the
Project is not entitled to the Builder's Remedy because the Applicant somehow failed to comply
with the timing requirements of Government Code § 65941.1. This argument is both factually
incorrect, and legally wrong.
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1 First, from a timing perspective, Government Code § 65941.1(d) provides as follows:
2 (1) Within 180 calendar days after submitting a preliminary application with all of the
information required by subdivision (a) to a city, county, or city and county, the
3 development proponent shall submit an application for a development project that
4 includes all of the infonnation required to process the development application
consistent with Sections 65940, 65941, and 65941.5.
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(2) If the public agency determines that the application for the development project is not
6 complete pursuant to Section 65943, the development proponent shall submit the
specific information needed to complete the application within 90 days of receiving the
7 agency's written identification of the necessary information. If the development
8 proponent does not submit this infonnation within the 90-day period, then the
preliminary application shall expire and have no further force or effect.
9 (3) This section shall not require an affirmative determination by a city, county, or city and
10 county regarding the completeness of a preliminary application or a development
application for purposes of compliance with this section.
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The Applicant met each of these deadlines.
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13 As explained above, the City did not have a Government Code § 65940 compliant
14 submittal requirement checklist when the Applicant submitted its application. Further, the City
15 never issued an incompleteness determination from its Community Development Director, as
16 required by the City's own code. As such, the Applicant's original submittal of June 5, 2023 was
17 both the final and preliminary application for the Project, and was deemed complete as a matter of
18 law, without any further action from the City. (See Government Code § 65941.1(d)(3).)
19 Alternatively, even if the June 5, 2023 submittal was not complete as a matter of law, the
20 September 1, 2023 would clearly meet the 90 and 180 deadlines discussed above, meaning that the
21 Project is still able to continue to rely on the Builder's Remedy since its application was deemed
22 complete as of September 1, 2023.
23 Furthermore, contrary to the City's insinuation, Government Code § 65941.1(d)(2) does
24 not create an iterative process that requires an applicant to continuously update its materials within
25 90 days of receiving any incompleteness letter from the City. Instead, it only requires that the 90
26 day deadline be met once: "If the public agency determines that the application for the
27 development project is not complete pursuant to Section 65943, the development proponent shall
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the agency's written identification of the necessary information." (Gov't Code § 65941.1(d)(2).)
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In this case, the Applicant provided its response to the first incompleteness detennination (dated
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July 5, 2023) by September 1, 2023, and well within the 90 days required by the code.
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Importantly, even if the Application was not deemed or otherwise considered complete on
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June 5, 2023 or September 1, 2023 (which it was not), the City had agreed to continue to extend
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the Applicant's resubmittal while the City clarified its position with regard to the items listed in
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Table A of the City's October 5, 2023 letter. Per Government Code § 65943, the City and
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Applicant are able to agree to extend any deadline imposed by that section, including the City's
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response to the Applicant's submittals. In this case, the record shows that the parties agreed to
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wait for the City to provide additional clarification on its comments before the Applicant would
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provide its response if any. That additional "clarification" was provided at the end of January
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2024, as conveyed by the City Attorney's office. As such, the Applicant clearly responded within
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ninety days of being relayed that information from the City Attorney's office. The City's attempt
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at "gotcha" by stringing the Applicant along is improper.
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Lastly, the City failed to advise the Applicant of the relevant deadline that the City
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apparently believes was supposed to have applied to the Application. Per Government Code §
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65941.5, the public agency is required to notify all applicants of the time limits established for the
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review and approval of development pen -nits under Article 3 of the Government Code, which
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includes the 90-day limit of Government Code § 65941.1. Because the City failed to notify the
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Applicant of the City's understanding of this provision, the City is precluded from enforcing its
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draconian interpretation.
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Based on all of the foregoing, the City's Application is timely and can still rely on the
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Builder's Remedy, which means that the Application must be deemed complete.
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VI. ADU's Can Satisfy the Affordability Requirements Under the Housing
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Accountability Act
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The City Attorney's office has opined, without citation to any authority, that the Project's
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reliance on accessory dwelling units is improper because the Applicant cannot "guarantee or
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require that any of the forty-two (42) units will actually be made available for rent at all, as it
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2545/016909-0637 JCP PROPERTY OWNER'S APPEAL FROM MARCH 27, 2024 NOTICE OF
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