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1331 N. California Blvd.
Fifth Floor
Walnut Creek, CA 94596
T 925 935 9400
F 925 933 4126
www.msrlegal.com
Kenneth A. Stahl
Direct Dial: 949-688-2980
[email protected]
Offices: Walnut Creek / San Francisco / Newport Beach
September 27, 2024
VIA E-MAIL
Ted White, Planning and Building Director
City of Anaheim
200 S. Anaheim Blvd
Anaheim, CA 92805
Email: [email protected]
Re: Comment Letter on September 30, 2024 Planning Commission Agenda Item 1 (Development Application No. 2021-00137)
Dear Mr. White:
This letter is submited on behalf of the applicant SALT Development, LLC (“SALT”), in response to the staff report submitted by you in advance of the September 30, 2024 Planning Commission hearing on the above-referenced Development Application for the Hills Preserve project.
We write for two reasons. First, staff mistakenly contends that two of the four required findings for a General Plan Amendment cannot be made. In fact, as we demonstrate below and addressed in further detail in a letter under separate cover from my land use colleague Nadia Costa, all of these findings can and should easily be made. Second, we write to advise the City that in the event the General Plan Amendment is denied per staff’s recommendation, the City will be required by state housing law to approve the alternative projects SALT has put forward, and will not be able to rely on any ostensible fire evacuation or other health and safety rationales to avoid the application of state housing law. We were quite surprised that the staff report makes no mention of the alternative projects SALT has proposed, so this letter is to ensure that the Planning Commission is fully informed about the consequences of denying the Hills Preserve project.
In the spirit of cooperation, we have presented the City with two options for this site. The first option, the Hills Preserve project, is the project currently before the Planning Commission. Hills Preserve is a mixed-use community with 498 apartment homes (as well as six custom single-family homes), commercial uses, luxury amenities, and numerous public benefits to enhance and expand the existing trail system and other recreation amenities in and around Deer Canyon Park Preserve. The second option is a trio of developments proposed under the state’s “Builder’s Remedy” law, Gov. Code § CS ITEM # 01
Ted White, Planning and Building Director
City of Anaheim
September 27, 2024
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65589.5(d), collectively comprising 1,280 homes on these parcels (“Builder’s Remedy projects”). If the City chooses to approve the Hills Preserve project, SALT will withdraw the pending preliminary applications for the Builder’s Remedy projects. However, if the City denies the Hills Preserve project, SALT intends to file formal development applications for the Builder’s Remedy projects. As described below, the City is legally prohibited from disapproving the Builder’s Remedy projects or approving them in a manner that reduces those projects’ feasibility.
All of the Required Findings for the General Plan Amendment Can and Should Be Made
The staff report contends that the Hills Preserve project will increase evacuation time in the event of a wildfire emergency, and therefore the City cannot make the required finding for a General Plan Amendment that “[t]he proposed amendment would not be detrimental to the public interest, health, safety.” (Staff Report at 22-23). This contention is puzzling because the City has exhaustively studied the potential fire safety impacts of this project pursuant to the California Environmental Quality Act (CEQA), and prepared a detailed draft Environmental Impact Report (EIR) that explains in great detail how the project will have a negligible impact on fire safety and in fact is likely to enhance fire safety in the area. Among other findings, the draft EIR states that in an unlikely worst- case scenario, using extremely conservative assumptions including a combination of a wildfire erupting exactly during rush hour on Friday, in one precise location in Deer Canyon, a simultaneous mass evacuation from every resident in Anaheim Hills, and the absence of any traffic control by the Anaheim Police Department, the total evacuation time which was projected at 186 minutes would only increase by 24 minutes. In any other possible scenario, the impact on evacuation time would be less or none.
The draft EIR further found that the Hills Preserve project’s implementation of multiple Fuel Modification Zones and the use of fire-hardened construction materials in the design and construction of the buildings would mitigate any fire risks and enable residents of the new buildings to shelter in place in lieu of an evacuation during a wildfire, keeping evacuation routes clear. In addition, new infrastructure investments by Hills Preserve, including improved roads, additional fire hydrants, and significant voluntary donations toward advanced firefighting equipment would buffer and protect the surrounding neighborhoods in the unlikely event of a Deer Canyon wildfire, making the surrounding areas significantly safer compared to if the development were not to proceed.
Likewise, the traffic issues raised in the staff report do not prevent the City from making the required finding that “[t]he proposed amendment would not be detrimental to the public interest, health, safety.” The draft EIR exhaustively details the project’s potential impacts as it relates to transportation. With respect to non-VMT related issues, such as the operational items noted by staff, there are no unmitigated significant impacts.
The staff report also contends that the City cannot make the required finding that the property is “physically suitable” for the project due to the project’s height, which is taller than neighboring buildings. However, the staff report fails to acknowledge that, as reported in the EIR, all impacts related to aesthetics and land use will be less than Ted White, Planning and Building Director
City of Anaheim
September 27, 2024
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significant (with most of these impacts not even requiring mitigation in the first instance).
For example, the project is located near the lowest elevations on the site, which minimizes the visual intrusions on neighboring landowners as well as all relevant public views. The EIR also observes that all retaining walls for the project would be constructed in accordance with applicable development standards, and are being incorporated into the project to minimize grading and to preserve open space. Moreover, the increased height is directly tied to the project’s goal to cluster development on the least topographically and biologically sensitive areas. For all these reasons, the City can and should make all required findings to approve the General Plan Amendment.
If the Hills Preserve Project is Denied, SALT intends to File Formal Applications for the Builder’s Remedy Projects, Which State Law Prohibits the City from Disapproving or Unreasonably Conditioning
In the event the City were to nevertheless disapprove the Hills Preserve project, SALT would file formal applications for the Builder’s Remedy projects, which the City would be legally prohibited from disapproving or approving on conditions that render the project infeasible.
As you are aware, on June 7, 2024, SALT filed “Preliminary Applications,” pursuant to Senate Bill 330, the Housing Crisis Act of 2019, Government Code section 65941.1, and the Builder’s Remedy of the Housing Accountability Act (HAA), Gov. Code § 65589.5(d) for the three Builder’s Remedy projects. The three projects are: 1) Deer Canyon apartments: 725 apartments on 13.95 acres; 2) Deer Canyon Townhomes: 90 homes on
32.26 acres; and 3) Valley View Apartments: 465 apts on 29.8 acres.
As described in our cover letter accompanying the Preliminary Applications, the filing of a Preliminary Application “freezes” all of a city’s applicable development standards, such that a housing development project may generally be subject only to the ordinances, policies, and standards adopted and in effect when a preliminary application was submitted. (Gov. Code § 65589.5(o)). The applicant then has 180 days from the submission of the Preliminary Application to file the full formal application for the project, which is subject only to the standards in effect at the time the Preliminary Application was submitted. In this case, the filing of the Preliminary Application locked in place SALT’s ability to proceed under the Builder’s Remedy law, in the event SALT chooses to file formal applications for the Builder’s Remedy projects on or prior to December 4, 2024.
The Builder’s Remedy law prohibits a city, like Anaheim, that does not have an adopted housing element that is substantially compliant with the Housing Element Law (Gov.
Code § 65580 et seq.) from disapproving or conditioning in a manner that renders infeasible a housing development project “for very low, low-, or moderate-income households,” even where the project is inconsistent with both the city’s zoning ordinance and general plan land use designation. (Gov. Code § 65589.5(d)(5)). Projects for very low, low-, or moderate-income households are defined to include projects that provide 20 Ted White, Planning and Building Director
City of Anaheim
September 27, 2024
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percent of the units for lower income households as defined in the HAA. (Gov. Code § 65589.5(h)(3)).1
Because the City did not have a a substantially compliant 6th Regional Housing Needs Assessment (“RHNA”) Cycle Housing Element at the time the Preliminary Applications for the Builder’s Remedy projects were submitted, and the Builder’s Remedy projects are housing development projects that will provide 20 percent of their units for lower income households, the projects are protected by the Builder’s Remedy.2 Therefore, in the event SALT files formal development applications for the Builder’s Remedy projects, the City would be prohibited from denying those projects, or condition approval of the Builder’s remedy projects in a manner that would render them infeasible. It is SALT’s intent to file formal development applications for the Builder’s Remedy projects on or before December 4, 2024, if the Hills Preserve project has not been approved by that date.
The City Cannot Meet its Burden Of Proving that the Project Presents a Significant and Unavoidable Public Health and Safety Hazard Under the Builder’s Remedy Law Though the HAA/Builder’s Remedy law does permit a municipality to deny otherwise eligible projects if the municipality can establish by a preponderance of the evidence that the project would create a significant and unavoidable health and safety haxard, the City cannot do so here. The HAA defines a specific, adverse health and safety impact as a “significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions” as they existed on the date a preliminary application is submitted. Gov. Code § 65589.5(d)(2).3 Furthermore, even if a specific adverse impact as defined by the HAA is identified, the project still cannot be denied if there is any feasible way to mitigate the impact. Gov. Code § 65589.5(d)(2).
Therefore, in this case the City could only deny the Builder’s Remedy projects, or condition the approval of such projects in a way that makes them infeasible, if the City can prove by a preponderance of the evidence both that the project violates some objective, written public health and safety standard that was in place on the date the
1 Pending changes to the Builder’s Remedy law would not apply to these Builder’s Remedy applications. The new law explicitly grandfathers in all projects for which a Preliminary Application has been submitted prior to January 2025, permitting such projects to proceed under the currently existing Builder’s Remedy law notwithstanding the pending changes. See AB 1893 (proposed amendment to Gov. Code section 65589.5(f)(7)); https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240AB1893. 2 See California Housing Defense Fund v. City of La Cañada Flintridge (Case No. 23STCP02614) Los Angeles Superior Court (Order on Petitions for Writ of Mandate and Complaints for Declaratory Relief, March 4, 2024), page 15 (holding that Builder’s Remedy vests on submission of Preliminary Application if jurisdiction does not have a substantially compliant housing element).
3 Gov. Code § 65589.5(d)(2) refers to the date on which an application is “deemed complete,” but the HAA defines “deemed complete” to mean the date on which a Preliminary Application is submitted. Gov. Code § 65589.5(h)(5)).
Ted White, Planning and Building Director
City of Anaheim
September 27, 2024
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Preliminary Applications were submitted, in a way that creates a significant, direct and unavoidable impact on health and safety, and that the impact on health and safety cannot feasibly be mitigated. Needless to say, this is a very high bar for cities to meet, and the legislature has made clear its intent that the conditions constituting a health and safety hazard under the HAA “arise infrequently.” Gov. Code § 65589.5(a)(3). Indeed, I am unaware of any case in which any jurisdiction has successfully used the health and safety proviso to deny a project. To the contrary, I myself prevailed against the City of Huntington Beach in a case in which the City attempted to raise ostensible fire and traffic safety concerns to deny a project. The Court rejected the City’s arguments, finding that the City failed to identify any objective health and safety standards that were violated, except one standard which the project could be easily adapted to meet. See Statement of Decision, California Renters Legal Advocacy and Education Fund v. City of Huntington Beach, 30-2020-01140855 (Sup. Ct. October 4, 2021) at 17-18 (Exhibit A).
In this case, as noted above, the project has been designed to mitigate any potential health and safety hazards to a level that is far below any threshold of significance.
Regardless, there is plainly no way the City can meet its burden of proving by a preponderance of the evidence that the project poses any significant and unavoidable health and safety hazard within the meaning of the Builder’s Remedy law. For that reason, we reiterate that if SALT does file formal applications to proceed with the Builder’s remedy projects, the City will be prohibited by state law from disapproving those applications, or approving them subject to conditions that make them infeasible There are significant penalties if a local agency fails to comply with the HAA. Where a court finds a violation, it must issue an order requiring compliance within 60 days and can direct the agency to approve the project if it finds the agency acted in bad faith. The court also must award the prevailing party its reasonable attorney’s fees and costs except in the “extraordinary circumstances” in which the court finds that awarding fees would not further the purposes of the statute. If a local agency fails to comply with the HAA within 60 days of an order’s issuance, the court must impose a minimum fine on the local agency of $10,000 per housing unit in the housing development project as proposed on the date the application was deemed complete and can issue an order vacating the local agency’s action on the project, in which case the project is deemed approved. (Gov.
Code §§ 65589.5(k)-(l)).
In summary, the City can and should make the required findings to approve the General Plan Amendment for the Hills Preserve project. But in the event it does not, SALT intends to file formal applications for the three Builder’s Remedy projects no later than December 4, 2024.
We would be happy to discuss the Hills Preserve or Builder’s Remedy projects with you at any time. I can be reached by e-mail at [email protected], or by phone at (949) 688-2980.
Ted White, Planning and Building Director
City of Anaheim
September 27, 2024
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Very truly yours,
MILLER STARR REGALIA
Kenneth A. Stahl
Kenneth A. Stahl
Enclosures: See Statement of Decision, California Renters Legal Advocacy and Education Fund v. City of Huntington Beach, 30-2020-01140855 (Sup. Ct. October 4, 2021)
cc (via email): Mayor Ashleigh Aitken ([email protected]) Mayor Pro Tem Norma Campos Kurtz ([email protected])
Council Member Jose Diaz ([email protected])
Council Member Carlos A. Leon ([email protected])
Council Member Natalie Rubalcava ([email protected]) Council Member Stephen J. Faessel ([email protected]) Council Member Natalie Meeks ([email protected])
Christopher P. Walker ([email protected]) Vice Chair Lucille Kring ([email protected])
Commissioner Jeanne Tran-Martin ([email protected]) Commissioner Michelle Lieberman ([email protected]) Commissioner LuisAndres Perez ([email protected])
Commissioner Amelia Castro ([email protected]) Commissioner Deirdre Kelly ([email protected]) City Manager Jim Vanderpool ([email protected])
Heather Allen ([email protected])
Nadia Costa ([email protected])
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