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CITY COUNCIL AGENDA REPORT
City of Anaheim
PLANNING AND BUILDING DEPARTMENT
DATE: MAY 7, 2024
FROM: PLANNING AND BUILDING DEPARTMENT
SUBJECT: REQUEST FOR REHEARING – DISNEYLANDFORWARD
PROJECT DEVELOPMENT APPLICATION NO. 2021-00069
ATTACHMENT (Y/N): YES ITEM # 03
GOVERNMENT CODE § 84308 APPLIES: YES
RECOMMENDATION:
That the City Council, by Motion, deny the request for a rehearing of the City Council’s decision related to the public hearing held on April 16, 2024 that concluded with City Council action on April 17, 2024 approving entitlements associated with the DisneylandForward Project (DEV2021-00069).
DISCUSSION:
On October 9, 2023, the Planning Commission held a noticed public workshop on the CEQA Draft Subsequent Environmental Impact Report No. 352 (“Draft SEIR”) and took public comment on the Draft SEIR for the DisneylandForward Project (“Project”). The Project includes amendments to the General Plan Land Use and Circulation Elements, the Disneyland Resort Specific Plan, the Anaheim Resort Specific Plan, the Anaheim Municipal Code, the Anaheim Resort Public Realm Landscape and Identity Programs, and the Development Agreement associated with the Project, abandonment of right-of-way (Magic Way, Clementine Street, and Hotel Way), and approval of Fire Operations and Police Operations Agreements.
On January 23, 2024, the City Council held a public workshop and took public comment on the Project. On February 26, 2024, the Planning Commission held a noticed public workshop and took public comment on the Project.
On March 11, 2024, following a noticed public hearing including 54 public comments and extensive questions from and deliberation by the Planning Commission, the Planning Commission recommended that the City Council certify and approve the Final Subsequent Environmental Impact Report No. 352 and associated Mitigation Monitoring Program, adopt a Statement of Overriding Considerations, and approve the land use entitlements.
Request for Rehearing - Development Application No. DEV2021-00069 May 7, 2024
At its meeting on April 16, 2024, the City Council held a noticed public hearing to consider the Project, including the recommendations from the Planning Commission, to receive evidence and reports on the Project, and to provide all interested persons an opportunity to be heard. After due consideration of all the information presented at the public hearing, including 83 oral public comments and 130 written electronic comments, the City Council concluded the public hearing on April 17, 2024, taking all necessary actions to approve the Project, with all associated entitlements, on a 7-0 vote.
On April 22, 2024, Ms. Cynthia Ward (the “Petitioner”) submitted a Request for Rehearing and Declaration of Merit (“Rehearing Request” attached hereto as Attachment 1). The Rehearing Request is made pursuant to Section 1.12.100 of the Anaheim Municipal Code, which provides that “any person or entity aggrieved by any administrative order or decision made by the City Council as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the City Council, shall, as a prerequisite to seeking any judicial review or relief relating to such order or decision, request a rehearing of such matter by the City Council whenever any of the following grounds exist.” Specifically, the Anaheim Municipal Code lists four grounds for rehearing as follows:
1. That the City Council has proceeded without, or in excess, of its jurisdiction;
2. That there was not a fair hearing and the petitioner was thereby deprived of any rights;
3. That there was a prejudicial abuse of discretion by the City Council within the meaning of Section 1094.5 of the Code of Civil Procedure of the State of California; or
4. That there was relevant evidence which, in the exercise of reasonable diligence, could not have been produced by the petitioner, or which was improperly excluded by the City Council, at the hearing.
The Petitioner’s Rehearing Request makes two claims: (1) that there was not a fair hearing and the Petitioner was thereby deprived of any rights (“Grounds 2”); and (2) that there was prejudicial abuse of discretion by the City Council (“Grounds 3”).
The Petitioner’s Statement of Facts in support of the Rehearing Request makes the following claims as to Grounds 2: (A) “Anaheim residents were denied adequate time to share their views when, what was promised to be, two separate Public Hearings were combined into one”; (B) “Some Anaheim residents opposed to the project were denied reasonable opportunity to speak altogether, due to [City’s] deliberate actions which deviated from past practice, making it physically impossible for some to retain their place in line to speak during Public Comments”; and (C) Members of the Anaheim City Council failed to act with disinterested zeal, indicating their reluctance to fairly consider testimony from those opposed to the project…” The Petitioner’s Statement of Facts in support of the Rehearing Request makes the following claims as to Grounds 3: (A) “[City] accepted/adopted all DisneylandForward-provided studies as being true and accurate. Independent appraisals/studies were not ordered or completed by [City] for verification of information…” (B) “[City] may have engaged in ex-parte communication with Request for Rehearing - Development Application No. DEV2021-00069 May 7, 2024
the applicant, which denied the public opportunity to access and review the same evidence upon which the City Council based their approval of the project”; (C) “Members of the City Council indicate they might not have examined all of the evidence, as they claimed to have done in the ‘Finding of Fact and Statement of Overriding Consideration”; (D) “All of these points considered, the current council was…negligent in their respective duties…” As described in detail below, the facts and evidence in the record of the Project proceedings do not support the claims made in the Petitioner’s Rehearing Request. Consequently, staff recommends that the City Council deny the request for a rehearing of the City Council’s decision on April 17, 2024, approving the DisneylandForward Project.
Response to Grounds 2: The City Council of the City of Anaheim conducted a fair and thorough hearing prior to making its decision on the Project and the Petitioner was not deprived of any rights.
A. Anaheim residents (and all other members of the public) were provided adequate time to share their views. Two separate public hearings for the Project and Street Vacation/Abandonment were not required.
At the April 16, 2024 City Council public hearing that concluded with City Council action on April 17, 2024, the City received 103 public comment speaker cards (22 of which were from residents within the noticed area for the Project and which individuals were provided up to 10 minutes to speak). Individuals located outside of the noticed area for the Project were provided three minutes to speak. During the meeting, City Clerk staff were posted outside of City Council chamber in the overflow areas to invite additional individuals to submit speaker cards to ensure everyone who wished to speak had the opportunity to submit a card. The staff provided speaker cards to individuals who were in the overflow areas. The public speaking portion, which included initial comments by the applicant, commenced at 7:36 pm on April 16, 2024 and ended at approximately 11:40 pm. City Clerk staff brought in additional public comment cards throughout the public comment portion of the meeting and the names of those additional individuals were put into the speaker queue. During the approximately four hours of public comment at the City Council meeting, the City Council heard testimony from 86 speakers, including representatives of the Project. In addition, the City received 130 electronic written public comments, including correspondence from the Petitioner, which were distributed to City Council and posted on the City’s website in advance of the meeting.
In addition to the public comments provided during the April 16, 2024 City Council public hearing, members of the public were able to, and did, provide public comment on the Project at four additional public meetings of the City Council and Planning Commission. At the October 9, 2023 Planning Commission public workshop on the CEQA Draft SEIR, the Planning Commission heard from 31 speakers during more than an hour of public comment. At the January 23, 2024 City Council public workshop, the City Council heard from 58 speakers during approximately two and a half hours of public comment, in addition to receiving a total of 89 electronic written comments. At the February 26, 2024 Planning Commission public workshop, the Planning Commission Request for Rehearing - Development Application No. DEV2021-00069 May 7, 2024
heard from 41 speakers during two hours of public comment. At the March 11, 2024 Planning Commission public hearing on the Project, the Planning Commission heard from 54 speakers during two hours of public comment, in addition to receiving approximately 700 electronic written comments. The City also held an informational open house on April 10, 2024 where members of the public were able to ask questions of City staff and City and Disney consultants, including on the street abandonment/vacation elements of the Project. The City also received a written petition opposing the street abandonment/vacation elements of the Project.
In accordance with the requirements of the California Streets and Highway Code §§8320 et seq., the City Council held a noticed public hearing and received public testimony at the April 16, 2024 public hearing on the proposed vacation/abandonment of the three segments of street rights-of-way contemplated in the Project. Neither the California Streets and Highway Code, nor the City of Anaheim Abandonment or Vacation of Public Easements or Rights-of-Way Policy (Policy 5.5), nor the Anaheim Municipal Code require a separate public hearing, independent of an underlying project, to consider abandonment/vacation of rights-of-way. The City Council approved the street right-of- way abandonment/vacation elements of the Project through three separate resolutions, which were individually acted upon. As these resolutions were independent action items, the City Council had the opportunity to act separately on the Project and the street vacation/abandonments. Anaheim residents and members of the public were provided ample opportunity at multiple public meetings to provide input on the proposed street vacation/abandonment elements of the Project and Anaheim residents and members of the public provided substantial amounts of public testimony on this topic pursuant to those opportunities.
B. All Anaheim residents (and all other members of the public) were provided a reasonable opportunity to speak on the Project. The City conducted the public comment process in accordance with the City’s standard public comment procedures.
As outlined above, the City engaged in a comprehensive, months-long public engagement/public comment process for the Project, including separate noticed public hearings before the Planning Commission and the City Council. The City followed its standard public comment procedures for the April 16, 2024 City Council meeting and the City was able to solicit and receive a significant amount of public comment. In light of the strong public interest in this Project and the City’s commitment to facilitating public participation at the Project hearing, the City Clerk’s Office and City Hall security personnel along with Public Information Office (PIO) staff engaged in coordinated operational planning prior to the meeting to ensure that the public comment procedures were well-planned and well-executed. The public comment and public participation procedures for the April 16, 2024 City Council meeting are summarized below.
In accordance with standard City practice, the City Council chamber are open to members of the public approximately thirty minutes before the start of City Council meetings. On April 16, 2024, the City Council meeting commenced at 4:00 pm with a Request for Rehearing - Development Application No. DEV2021-00069 May 7, 2024
closed session. Consequently, the City Council chamber were opened at approximately 3:30 pm and members of the public were able to enter the chamber and obtain open seats.
The City Council chamber contains 154 seats; 26 seats were reserved for City staff, 20 seats were reserved for the applicant project team, and seats were reserved for individuals needing interpretation services. Additional seats were reserved for individuals being recognized as part of the Presentation portion of the meeting. At the conclusion of the Presentation portion of the meeting, these seats were made available to members of the public. The remaining approximately 100 seats in the chamber were open and available for members of the public on a first come first served basis as described above. The City set up approximately 30 additional seats in the open security area of City Hall adjacent to the City Council chamber with six seats reserved for individuals with disabilities or those requiring physical accommodations, and overflow for an additional 49 individuals in the Planning Department reception area off of the main City Hall atrium on the same level as the Council chamber. Audio and video feeds of the City Council meeting were broadcast on televisions located in both the open security area and the Planning Department reception area. Additional overflow seating was set up immediately outside of the main entrance to City Hall on the same level as the Council chamber. These chairs were fastened together in accordance with City’s standard safety and security procedures. An audio feed of the meeting was broadcast to the seating area outside of the City Hall main entrance.
At the start of the open session for the April 16th City Council meeting, the seating in the Council chamber and the indoor overflow seating areas were at capacity. At 7:13 pm, the City determined that there were 10 seats in the chamber that were not needed for City staff and those seats were opened to the public. The Anaheim Fire Department, City Hall security, and City Clerk staff were diligently monitoring the seating situation throughout the meeting to ensure that safety and capacity protocols were followed. As seats became open in the chamber and City Hall overflow seating areas, City staff facilitated moving individuals from the outside seating area into those seats as quickly as possible. The public comment portion of the meeting commenced at approximately 7:33 pm and by 8:33 pm, there were available seats within the interior space of City Hall for anyone desiring a seat. By 8:49 pm, all 21 individuals within the noticed area for the Project had provided public comments to the City Council (an additional speaker arrived later and was provided the 10 minutes to address the City Council). City Clerk staff were collecting speaker cards throughout the meeting and were bringing those cards into the Council chamber and those additional speakers were added to the speaker queue.
Consistent with standard City practice, once a speaker card was submitted, an individual’s place in the speaker queue was secured. Individuals were not required to stand in line to maintain their speaking slot once they entered City Hall and submitted their card to be entered into the queue.
C. The Anaheim City Council considered all evidence and public testimony presented at the meeting and acted in accordance with their duties and responsibilities.
Request for Rehearing - Development Application No. DEV2021-00069 May 7, 2024
The City Council members dutifully and respectfully carried out their responsibilities during the City Council meeting and gave full attention and consideration to the Project and public commenters. The open session portion of the April 16th City Council meeting commenced at 5:00 pm and lasted approximately eight hours. During the overwhelming majority of that time, the entire City Council was present and participating from the dais.
There were intermittent instances in the meeting where certain Council members stepped away from the dais out of personal necessity, but these instances were intermittent and for short periods of time and were only to an immediately adjacent area that included bathrooms. Audio feed of the meeting was continuously broadcast throughout the ground floor of City Hall for the duration of the meeting. Thus, during any periods when Council members temporarily stepped away from the dais, they could still hear the proceedings at all times.
As stated above, the City Council has participated in multiple public meetings and solicited and received public comments about this Project from a variety of sources representing a wide swath of Anaheim residents and members of the public. This robust public record includes a multiplicity of perspectives on the Project. The City Council’s questions to City staff and the applicant, as well as the City Council’s deliberations on the Project, demonstrate serious and thorough consideration of the many perspectives and views on the Project. City Council appropriately weighed information provided by City staff and members of the public and appropriately insisted on decorum and the avoidance of arguments of a personal nature during the proceedings.
Response to Grounds 3: The City Council acted appropriately in making their decision on the Project and did not abuse their discretion within the meaning of Civil Procedure section 1094.5.
A. The City conducted all necessary studies to support approval of the Project, including reliance on an assessment by a certified M.A.I. appraiser of the right-of- way appraisal.
An appraisal was prepared by certified M.A.I. appraisers at CBRE for the valuation of the proposed abandonment of the right-of-way segments contemplated as part of the Project.
These proposed abandonments included three roadway easements and two mapped segments of potential future streets. In addition, an independent evaluation by a separate certified M.A.I. appraiser (Thompson & Thompson) was conducted to confirm the findings of the CBRE appraisal. Thompson & Thompson’s written evaluation of the CBRE appraisal states: “We have reviewed the: 1) market data; 2) land valuation; 3) Across-The-Fence (ATF) valuation technique; and 4) the easement bundle of rights methodology utilized within the Restricted Appraisal Report that support the value conclusions contained within the CBRE Restricted Appraisal Report. Based upon our review of the CBRE report as Consulting Appraisers with analytical and geographic competency, it is concluded that the CBRE Restricted Appraisal Report and its conclusions are within an expected spectrum of reasonable conclusions of appraiser peers in the marketplace.” The above-described appraisal and independent evaluation identify appropriate fair market value amounts for the right-of-way segments contemplated in the Request for Rehearing - Development Application No. DEV2021-00069 May 7, 2024
Project in accordance with industry standards and best practices and satisfy the requirements of City Council Policy 5.5.
B. The City Council disclosed all ex-parte communications with the applicant and other members of the public at the hearing. All evidence to support City Council’s approval of the Project was within the public record and available for public review.
At timestamp 3:50:15 of the meeting (approximately 7:32 p.m.) of the April 16, 2024 City Council meeting, Mayor Aitken requested that all City Council members disclose any ex-parte communications related to the Project. Each Council member then identified and listed their respective communications with the applicant and members of the public related to the Project. Thus, the public and the City Council were all made aware of any ex-parte communications and there was an opportunity for individuals to raise issues or inquire about those ex-parte communications during public comment. In addition, the information upon which the City Council based its decisions and actions is the information in the record as a whole for the Project, including, but not limited to, information that was presented as part of staff reports, written correspondence and testimony for the Planning Commission and City Council workshops and meetings.
The Findings of Fact and Statement of Overriding Considerations for the Project are supported by substantial evidence in the record and the Statement of Overriding Considerations cites to numerous public benefits and impacts resulting from implementation of the Project, including: (1) economic benefits to the City through additional sales and transient occupancy taxes, (2) the generation of construction and skilled labor jobs, as well as additional hotel, theme park, retail, dining, and other service industry work to serve the expanded operations associated with the development of the Project, (3) the implementation of Project sustainability features that go beyond compliance with federal, state and local environmental rules and regulations, including:
high-efficiency lighting and other electrical equipment; water efficient landscaping and irrigation systems; water saving fittings, fixtures, and equipment; incorporation of electric vehicle chargers; use of recycled paper products; and recovery and recycling of materials, (4) implementation of pedestrian circulation and safety improvements throughout The Anaheim Resort, including: new and enhanced pedestrian linkages between land uses and areas of the Project Site, such as landscaped walkways, promenades, and plazas, and grade separated pedestrian bridges or crossings, (5) installation of new bicycle facilities and improvements, including installation of new bike and pedestrian paths and bike parking facilities, as well as dedication of right-of-way and contribution of in-lieu fees for new proposed bike lanes, (6) implementation of trip reduction measures, including those that directly support alternative means of transportation like transit, bicycle travel, and pedestrian movement; (7) implementation of modified height restrictions and a Sky Exposure Plane to limit heights and require buildings to step back from the property line along certain roadways to reduce visual exposure from adjacent, off-site uses, (8) payment by Disney of $30 million into a public trust established or specified by the City to be used to provide affordable housing residential units and housing affordability programs, (9) payment by Disney of $8 million for park improvements in the City outside of The Anaheim Resort, as determined by the City, and (10) payment by Disney of $10 Request for Rehearing - Development Application No. DEV2021-00069 May 7, 2024
million for upgrades to the Katella Avenue sewer infrastructure. The Statement of Overriding Considerations explicitly states: “Any of these overriding considerations is sufficient to support the Anaheim City Council’s determinations herein.” The evidence supporting the findings on overriding considerations is contained in the record as a whole, including but not limited to, testimony received at the public hearing, the staff presentations, staff reports and all materials in the City’s Project files.
As demonstrated by the discussion above, the June 5, 2023 study conducted by California State University, Fullerton is one piece of evidence amongst numerous benefits and positive impacts resulting from the Project that are outlined in the Statement of Overriding Considerations and supported by substantial evidence in the record.
Furthermore, the Executive Summary of the CSUF report was included in the agenda packet for public review. Two of the authors of the CSUF report, Dr. Anil Puri and Dr.
Aaron Popp were present at the April 16, 2024 City Council meeting and provided testimony and answered questions regarding their methods, analysis, and conclusions contained in the report.
Separate and independent of the CSUF report, Finance Director Debbie Moreno provided testimony at the meeting outlining the substantial positive revenue impacts that the City has realized as a result of the construction and opening of Disney’s prior major expansion project, including Disney California Adventure Park and Downtown Disney. Specifically, Director Moreno stated, commencing at timestamp 8:15:08 of the meeting, that prior to the last expansion of the Anaheim Resort, revenue generated attributable to Disney amounted to 11% of the City’s general fund and after the expansion, the current revenue generated that is attributable to Disney amounts to 31% of the general fund, which is approximately $140 million. Director Moreno further stated that after the lease payment management revenues (“LPMR”) is paid off around FY ’28-29 timeframe, the amount of revenue generated that is attributable to Disney will amount to 60% of the general fund.
In addition, the City Council heard from numerous skilled tradespersons and union representatives testifying to the positive impact that new Disney projects have on the generation of construction jobs in Anaheim.
With regards to the issue related to Disney’s expression of support for potential use of ATID funds for affordable housing, the Anaheim Tourism Improvement District (“ATID”) is a self-assessment district comprised of hoteliers. As discussed during the April 16, 2024 meeting, the City is exploring potential options for making adjustments to the ATID enabling documents, which would allow the use of some portion of ATID funds as an ongoing funding source for affordable housing programs in the City.
During the April 16, 2024 meeting, the applicant stated their commitment during their discussion with the City Council (timestamp 8:04:12) to work cooperatively with the City to explore options to utilize ATID funds for affordable housing. In her comments, Mayor Aitken acknowledged the applicant’s stated commitment and discussed the City’s plan to explore options for these funds. Mayor Aitken also asked that the applicant’s written statement of their commitment be included in the public record. Per Mayor Aitken’s Request for Rehearing - Development Application No. DEV2021-00069 May 7, 2024
request, the applicant’s written statement has been included in the Project record and is also included as Attachment 2 to this Report.
C. All evidence, plans, files, and other documents concerning the Project in support of the City Council’s Findings of Fact and Statement of Overriding Consideration were provided to the City Council and included in the public record.
The public record supporting the City Council’s review and approval of the Project is detailed and robust. The City Council participated in multiple public meetings where the Project documents were presented and public comments were taken. All Project documents and written public comments were provided to the City Council and the public in advance of the April 16, 2024 City Council meeting. The Statement of Overriding Considerations states that all of the benefits and considerations identified in the Statement are based on the facts set forth in the Findings, the Final Subsequent EIR (including, without limitation, the Draft Subsequent EIR, including appendices, the response to comments, and the record of proceedings for the Project.) The Statement of Overriding Considerations affirms that the City Council determined that the evidence in the record constitutes substantial evidence to support the determinations made in the Statement of Overriding Considerations, that the facts stated in the document and in the Findings are supported by substantial evidence in the record, including testimony received at the public hearing, the staff presentations, staff reports and all materials in the City’s Project files. The Statement further states that “the Anaheim City Council reached these determinations after due consideration of all evidence presented to it.” D. The City Council acted appropriately and within its discretion in making its decision on the Project.
The public record demonstrates that the City engaged in a thorough and years-long process to evaluate, and ultimately, approve the Project. The City Council facilitated, encouraged, and carefully considered an extensive amount of public comment related to the Project and appropriately examined and probed issues raised in those comments.
Further, the City Council reviewed, received, and engaged with City staff, City consultants, the applicant and members of the public on the details and features of the Project documents. The City Council asked detailed and pointed questions to both the applicant and applicant’s consultants, and to City staff and City consultants. The City Council’s discussion and deliberations of the Project show a keen understanding of the Project details, a thorough examination of the purported benefits of the Project, and a strong interest in vetting any drawbacks and tradeoffs associated with Project. Pursuant to California Code of Civil Procedure § 1094.5, abuse of discretion is established “if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” The public record establishes that the City Council’s findings on the Project, as reflected in City Council Resolution Nos. 2024-029 through 2024-035 and Ordinances Nos. 6572 through 6577, as well as the motions approving the Fire and Police Operations agreements, adequately support the decision to approve the Project. Further, there is a voluminous Request for Rehearing - Development Application No. DEV2021-00069 May 7, 2024
amount of evidence in the record supporting the City Council’s findings on the Project.
The decision to approve this Project was well-informed, reasonable, and within the City Council’s discretion.
Based on the foregoing, staff recommends that the Petitioner’s Request for Rehearing be denied.
IMPACT ON BUDGET:
There is no budgetary impact. The Petitioner paid the fee necessary to schedule this rehearing request.
Respectfully submitted,
Ted White
Deputy City Manager / Planning and Building Director
Attachments:
1. Request for Rehearing and Declaration of Merit from Cynthia Ward (Petitioner)
2. Applicant Statement of Support for Exploring Options Reallocation of ATID funds to the City of Anaheim Public Housing Trust