AGENDA REPORT
Meeting Date: March 11, 2024
Item Number:
To: Honorable Mayor & City Council
From: Michael Forbes, AICP, Director of Community Development Masa Alkire, AICP, Assistant Director of Community Development/City Planner
Edgar Arroyo, Senior Planner
Subject: AN APPEAL OF STAFF'S OCTOBER 13, 2023 INCOMPLETE
DETERMINATION, PURSUANT TO CALIFORNIA GOVERNMENT
CODE SECTION 65943(c), PERTAINING TO THE REVIEW OF AN
APPLICATION FOR A PROPOSED 19-STORY RESIDENTIAL AND
COMMERCIAL MIXED USE BUILDING AT 125-129 SOUTH LINDEN
DRIVE
Attachments: 1. Applicant’s Continuance Request – 3/1/2024
2. Public Notice
3. Public Correspondence
RECOMMENDATION
Staff recommends that the City Council:
1. Continue the public hearing to consider the appeal of staff’s determination that the application for a proposed mixed use development at 125-129 South Linden Drive is incomplete to April 16, 2024.
BACKGROUND
On March 1, 2024, Rand Paster & Nelson, LLP, on behalf of 9300 Wilshire, LLC (the “applicant”), submitted a request to continue the public hearing scheduled on March 11, 2024 to consider the appeal of City’s October 13, 2023 incomplete determination related to a Development Plan Review application seeking approvals for a new 19-story, 200-foot tall, mixed use building (the “project”) at 125-129 South Linden Drive (the “project site”) (Attachment 1).
Based on the applicant’s continuance request, staff recommends that the City Council continue consideration of the appeal to a date certain on April 16, 2024.
Meeting Date: March 11, 2024
PUBLIC OUTREACH AND NOTIFICATION
The Notice of Public Hearing for the appeal hearing was mailed on Friday, February 16, 2024 to all property owners and residential occupants within a 500-foot radius (extended to the block face) from the project site (Attachment 2). An on-site notice was posted on the subject property on Thursday, February 15, 2024. The project was also noticed in the Friday, February 16, 2024 edition of the Beverly Hills Courier and the Thursday, February 11, 2024 edition of the Beverly Hills Weekly. Lastly, courtesy emails were provided to all interested parties advising them of the hearing dates.
If the City Council continues the public hearing to April 16, 2024, a date certain, no additional noticing will be required.
Public Comment
As of the writing of this report, staff has received comment letters in support and opposition of the project. Public correspondence is provided as Attachment 3 to this report.
FISCAL IMPACT
The recommendation in this report does not have significant budget or fiscal impacts for the City beyond staff time and noticing costs. Costs associated with this appeal have been paid for by the applicant.
Michael Forbes, AICP
Director of Community Development
Approved By
ATTACHMENT 1
Applicant’s Continuance Request
3/1/2024
1 From: Dave Rand <[email protected]>
Sent: Friday, March 1, 2024 12:02 PM
To: RWG DavidSnow
Cc: Edgar Arroyo; Olivia Joncich
Subject: 125-129 Linden Drive - Request to Continue March 11th Appeal Hearing CAUTION: External Sender
Use caution when clicking links or opening attachments
Mr. Snow,
On behalf of 9300 Wilshire, LLC, the applicant for the project at 125-129 Linden Drive (PL2300146), we request that the City Council con1nue the appeal hearing currently scheduled for March 11, 2024 to the date of April 16, 2024.
As you know, this firm filed an appeal of the October 13, 2023 Incomplete Le5er on behalf of the project applicant on January 11, 2024. State law requires an agency to make a final wri5en determina1on regarding an appeal within 60 days of the filing of an appeal (Government Code §65943(c)), which would be March 11, 2024. However, Government Code §65943(d) states that “Nothing in this sec1on precludes an applicant and a public agency from mutually agreeing to an extension of any 1me limit provided by this sec1on.” Thus, please advise if the City consents to the applicant’s request to con1nue this appeal hearing un1l the date certain of April 16th.
Thank you,
Dave
Dave Rand
Partner
Phone: 213.557.7222 Direct: 213.557.7224
Cell: 818.983.6155
633 W. Fifth Street, Suite 5880, Los Angeles, CA 90071
Email: [email protected]
Web: www.rpnllp.com
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1 From: David Snow <[email protected]>
Sent: Monday, March 4, 2024 2:14 PM
To: 'Dave Rand'
Cc: Edgar Arroyo; Olivia Joncich; 6-Laurence Wiener
Subject: RE: 125-129 Linden Drive - Request to Continue March 11th Appeal Hearing CAUTION: External Sender
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Mr. Rand,
The City has received your request to connue the appeal hearing. City staff concurs with the requested connuance, and that will be the recommendaon to the City Council in the brief staff report for the March 11, 2024 meeng.
Best regards,
Dave Snow
David M. Snow
Attorney
RICHARDS WATSON GERSHON
350 South Grand Avenue, 37th Floor
Los Angeles, CA 90071
T: 213.626.8484
D: 213.253.0259
E: [email protected]
W: rwglaw.com
From: Dave Rand <[email protected]>
Sent: Friday, March 1, 2024 12:02 PM
To: David Snow <[email protected]>
Cc: Edgar Arroyo <[email protected]>; Olivia Joncich <[email protected]> Subject: 125-129 Linden Drive - Request to Continue March 11th Appeal Hearing Mr. Snow,
On behalf of 9300 Wilshire, LLC, the applicant for the project at 125-129 Linden Drive (PL2300146), we request that the City Council connue the appeal hearing currently scheduled for March 11, 2024 to the date of April 16, 2024. 2 As you know, this firm filed an appeal of the October 13, 2023 Incomplete LeCer on behalf of the project applicant on January 11, 2024. State law requires an agency to make a final wriCen determinaon regarding an appeal within 60 days of the filing of an appeal (Government Code §65943(c)), which would be March 11, 2024. However, Government Code §65943(d) states that “Nothing in this secon precludes an applicant and a public agency from mutually agreeing to an extension of any me limit provided by this secon.” Thus, please advise if the City consents to the applicant’s request to connue this appeal hearing unl the date certain of April 16th.
Thank you,
Dave
Dave Rand
Partner
Phone: 213.557.7222 Direct: 213.557.7224
Cell: 818.983.6155
633 W. Fifth Street, Suite 5880, Los Angeles, CA 90071
Email: [email protected]
Web: www.rpnllp.com
Please consider the environment before printing this e-mail +++++++++++++++++++++++
This e-mail message is intended only for the personal use of the recipient(s) named above. This message may be an attorney-client communication and/or include attorney work product privileged material, and as such is privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.
To comply with IRS regulations, we advise you that any discussion of Federal tax issues in this e-mail was not intended or written to be used, and cannot be used by you, (i) to avoid any penalties imposed under the Internal Revenue Code or (ii) to promote, market or recommend to another party any transaction or matter addressed herein. +++++++++++++++++++++++
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ATTACHMENT 2
Public Notice
City Clerk’s Office
RLY
IM
NOTICE OF PUBLIC HEARING
The Council of the City of Beverly Hills, at its regular meeting to beheld on Monday, March 11,2024, at 7:00 p.m., or as soon thereafter as the matter may be heard, in the Council Chamber of the City Hall, 455 N. Rexford Drive, Beverly Hills, CA 90210, will hold a public hearing to consider:
AN APPEAL OF STAFF’S OCTOBER 13, 2023 INCOMPLETE
DETERMINATION, PURSUANT TO CALIFORNIA GOVERNMENT CODE
SECTION 65943(c), PERTAINING TO THE REVIEW OF AN APPLICATION FOR A PROPOSED 19-STORY RESIDENTIAL AND COMMERCIAL MIXEDUSE BUILDING AT 125-129 SOUTH LINDEN DRIVE The proposed project consists of the construction of a new 19-story, 200’ tall, residential and commercial mixed use building at 125-129 South Linden Drive. The commercial portion of the project consists of a 73-room hotel and restaurant located on the first through fifth floors of the building. The residential portion consists of 165 apartment dwelling units, ranging from studio to two-bedroom units, located on the sixth through the 19th floors of the building, with 20% of the units (33 units) to be reserved for rental to lower income households. Parking for the project is proposed within a four-level subterranean parking structure that would be accessed from an alley abutting the rear of the property, providing parking for 126 vehicles. The project site consists of two vacant lots with a combined lot area of approximately 21,676 square feet located along the west-side of the 100-block of South Linden Drive, within the R-4 Multiple Residential Zone. The applicant has submitted a Development Plan Review (DPR) application for review of the development as a “Builder’s Remedy” project, which relies on the provisions of the Housing Accountability Act (HAA), codified in Government Code §65589.5.This project is currently under review by the City and no action regarding a decision on the projecthas occurred. The applicant (9300 Wilshire, LLC) has filed an appeal of City’s staff’s determination, issued on October 13, 2023, that an application to construct the proposed project is incomplete.
On February 6, 2024, the City Council set the appeal hearing date for the City Council’s regular meeting of March 11, 2024.
City ofBeverly Hills 455 N. Rexford Drive Beverly Hills, California 90210 p (310) 285-1141f(310) 858-5966 BeverlyHills.org
ENVIRONMENTAL REVIEW
Pursuant to the State CEQA Guidelines (California Code of Regulations, Title 14, Section 15378(b)(5)), administrative activities of governments that will not result in direct or indirect physical changes in the environment, including determinations of application completeness, arenot considered projects under the California Environmental Quality Act (CEQA). The project is currently under review and the City has not performed an environmental analysis of the project,as project details may change in response to the City’s comments during project review.
Environmental review ofthe project will be performed and publicly available prior to any decision on the project being issued.
HOW TO PARTICIPATE IN THE CITY COUNCIL MEETING
Please be advised that pre-entry metal detector screening requirements are now in place at CityHall. Members of the public are requested to plan visits accordingly. Members of the public may participate in the meeting by attending in-person or telephonically, and may view the meetingthrough live webcast or BHTV Channel 10 on Spectrum Cable. City Council meetings are broadcast on local Beverly Hills television and on other media platforms. Anyone who participates at the meeting and/or enters the City Council Chamber is subject to having their image displayed.These recordings will remain publicly accessible in perpetuity.
Public Comment Participation:
• Oral Comment/Listen only: (310) 288-2288• Email: [email protected]• Video (during public comment only): http://beverlyhills.org/comment• To Watch Video Live: http://beverlyhills.org/live or• On-Demand: http://beverlyhills.org/citycouncilmeetings• In-Person: Submit a Speaker Card to the City Clerk at the meeting How to Submit Public Comment (Email/Video):It is recommended that public written comments be submitted to the City Clerk’s office by 12:00 p.m. on the meeting date. Public comments will also be taken during the meeting when the topic is being reviewed by the City Council/Parking Authority. Written comments should identify theAgenda Item Number or Topic in the subject line of the email. The City Clerk will read only thefirst three minutes (approximately 350 words) of a written comment. In the event of a largenumber of written comments on one item, written comments may be summarized by the City Clerk’s Office. The entire written comment shall be archived in full as part ofthe record.
If a comment is received after the agenda item is heard, it will not be a part of the record. Public comment via video conference will be no longer than three (3) minutes per each individual comment, subject to City Council discretion based on the anticipated length in the meeting. In person speaker cards may be submitted to the City Clerk directly during the meeting.
City ofBeverly Hifis I 455 N. Rexford Drive Beverly Hills, California 90210 I t(310) 285-2400 f(310) 385-0862 BeverlyHffls.org Any interested person may participate in the meeting and be heard or present written comments to the City Council. According to Government Code Section 65009, if you challenge the Council’s action in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City, either at or prior to the public hearing.In Person Participation:
All interested persons are invited to attend and speak on this matter in person. Please see the above information on the location and time of this meeting.
If there are any questions regarding this notice, please contact Edgar Arroyo, Senior Planner in the Planning Division at (310) 285-1138, or by email at earroyobeverlyhffls.org. Please also contact us to add your email to the interested parties list for this ordinance, so that important updates and notifications may be sent to you.
HUMA AHMED
City Clerk
Pursuant to the Americans with Disabilities Act, the City of Beverly Hills will make reasonable efforts to accommodate persons with disabilities. If you require special assistance, please call (310) 285-2400 (voice) J or (310) 285-6881 (TTY). Providing at least forty-eight (48) hours advance notice will help to ensure availability of services. City Hall, including the Council Chamber and Room 280A, is wheelchair accessible.
The City Hall Council Chamber and Room 280A are also equipped with audio equipment for the hearing impaired.
City ofBeverly Hifis I 455 N. Rexford Drive Beverly Hifis, California 90210 I t(310) 285-2400 fl310) 385-0862 BeverlyHills.org ATTACHMENT 3
Public Correspondence
1 Edgar Arroyo
From: munkhbat ania
Sent: Thursday, October 5, 2023 9:05 AM
To: Edgar Arroyo
Subject: 9300 Wilshire LLC
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________________________________
Good morning,
The proposed building if permiƩed is going to make the traffic on Linden and Wilshire impossible. Most cars traveling from Olympic to West LA to UCLA transit through Linden and if a hotel is built at that locaƟon the traffic will become insurmountable.
Thank you and I can be reached at if you have any quesƟon.
Ania
Sent from my iPhone
MATTHEW GELFAND, COUNSEL
[email protected]
TEL: (213) 739-8206
October 10, 2023
VIA EMAIL
Edgar Arroyo
Senior Planner
City of Beverly Hills
Email: [email protected]
RE: Proposed Development at 125-129 S. Linden Drive (PL2300146) Dear Mr. Arroyo:
Californians for Homeownership is a 501(c)(3) organization devoted to using legal tools to address California’s housing crisis. We are writing regarding the proposed development at 125- 129 S. Linden Drive. The City’s approval of this project is governed by the Housing Accountability Act, Government Code Section 65589.5. For the purposes of Government Code Section 65589.5(k)(2), this letter constitutes our written comments on the project.
This project is subject to the so-called “builder’s remedy” under the Housing Accountability Act. Because the project qualifies as “a housing development project . . . for very low, low-, or moderate-income households” under the Act, the City must approve it unless the City can satisfy its burden of demonstrating, by a preponderance of the evidence, the applicability of one of the exceptions in subdivisions (d)(1) through (d)(5) of Section 65589.5. And because the City has not adopted a general plan housing element that substantially complies with state law, it is further prohibited from using subdivision (d)(1) or (d)(5) to reject the project.1 When a locality rejects a housing development project without complying with the Act, the action may be challenged in court in a writ under Code of Civil Procedure Section 1094.5. Gov.
Code § 65589.5(m). The legislature has significantly reformed this process over the last few years in an effort to increase compliance. Today, the law provides a private right of action to non-profit organizations like Californians for Homeownership. Gov. Code § 65589.5(k). A non-profit organization can sue without the involvement or approval of the project applicant, to protect the public’s interest in the development of new housing. A locality that is sued to enforce Section 65589.5 must prepare the administrative record itself, at its own expense, within 30 days after service of the petition. Gov. Code § 65589.5(m). And if an enforcement lawsuit brought by a non-profit organization is successful, the locality must pay the organization’s attorneys’ fees. Gov. 1 In a September 12 decision in our litigation against the City, Los Angeles Superior Court Case No. 23STCP00143, the Court determined that the City’s housing element does not substantially comply with state housing element law.
October 10, 2023
Code § 65589.5(k)(2). In certain cases, the court will also impose fines that start at $10,000 per proposed housing unit. Gov. Code § 65589.5(k)(1)(B)(i).
In recent years, there have been a number of successful lawsuits to enforce the Act:
In Eden Housing, Inc. v. Town of Los Gatos, Santa Clara County Superior Court Case No. 16CV300733, the court determined that Los Gatos had improperly denied a subdivision application based on subjective factors. The court found that the factors cited by the town, such as the quality of the site design, the unit mix, and the anticipated cost of the units, were not objective because they did not refer to specific, mandatory criteria to which the applicant could conform. San Francisco Bay Area Renters Federation v. Berkeley City Council, Alameda County Superior Court Case No. RG16834448, was the final in a series of cases relating to Berkeley’s denial of an application to build three single family homes and its pretextual denial of a demolition permit to enable the project. The Court ordered the city to approve the project and to pay $44,000 in attorneys’ fees. In 40 Main Street Offices v. City of Los Altos, Santa Clara County Superior Court Consolidated Case Nos. 19CV349845 & 19CV350422, the court determined that the Los Altos violated the Housing Accountability Act, among other state housing laws, by failing to identify objective land use criteria to justify denying a mixeduse residential and commercial project. The City was ultimately forced to pay approximately $1 million in delay compensation and attorneys’ fees in the case. In Californians for Homeownership v. City of Huntington Beach, Orange County Superior Court Case No. 30-2019-01107760-CU-WM-CJC, a case brought by our organization, the court ruled that Huntington Beach violated the Housing Accountability Act when it rejected a 48-unit condominium project based on vague concerns about health and safety. Following the decision, the City agreed to pay $600,000 in attorneys’ fees to our organization and two other plaintiffs.
Based on the above legal framework, we are not aware of any legal basis for the City to deny the application to develop this project. If the City nevertheless does so, we reserve the right to initiate litigation against the City as a “housing organization” under the Act.
Sincerely,
Matthew Gelfand
cc: Jeffery Lambert, Interim Comm. Dev. Dir. (by email to [email protected]) Laurence Wiener, Esq., City Attorney (by email to [email protected])
MATTHEW GELFAND, COUNSEL
[email protected]
TEL: (213) 739-8206
February 20, 2024
VIA EMAIL
Edgar Arroyo, Senior Planner
City of Beverly Hills
Email: [email protected]
RE: Proposed Development at 125-129 S. Linden Drive (PL2300146) Dear Mr. Arroyo:
As you know, Californians for Homeownership is a 501(c)(3) organization devoted to using impact litigation to address California’s housing crisis. This letter follows up on our October 10, 2023 letter regarding the proposed development at 125-129 S. Linden Drive. That letter established our standing to challenge any denial of the application under subdivision (k)(2) of the Housing Accountability Act (HAA), Government Codes Section 65589.5. Now that the City stands at the precipice of denying the application, we are notifying the City of our intention to initiate litigation against the City under the HAA if it does so.
As we explained in our prior letter, this project is subject to the so-called “builder’s remedy” under the HAA. Because the project qualifies as “a housing development project . . . for very low, low-, or moderate-income households,” the City must approve it unless the City can demonstrate the applicability of one of the exceptions in subdivisions (d)(1) through (d)(5) of the HAA. And because the City has not adopted a general plan housing element that substantially complies with state law, it is further prohibited from using subdivision (d)(1) or (d)(5) to reject the project.
More specifically, as you know, a court recently determined that the City’s housing element does not substantially comply with state housing element law. The City therefore has no good faith basis for believing that it is not subject to the builder’s remedy.
When a locality rejects a housing development project without complying with the HAA, the action may be challenged in court in a writ under Code of Civil Procedure Section 1094.5.
Gov. Code § 65589.5(m). The legislature has significantly reformed this process over the last decade in an effort to increase compliance. Today, the law provides a private right of action to non-profit organizations like Californians for Homeownership. Gov. Code § 65589.5(k). The locality bears the burden of proof in HAA litigation, and must pay a prevailing challenger’s attorneys’ fees. Gov. Code §§ 65589.5(i), (k)(1)(A)(ii), (k)(2). In certain cases, the court will also impose fines that start at $10,000 per proposed housing unit. Gov. Code § 65589.5(k)(1)(B)(i).
Indeed, just last week, a court fined the City of Berkeley $2.6 million on this basis, and that city February 20, 2024
was also forced to pay $1.4 million in attorneys’ fees arising out a developer’s HAA lawsuit.1 We have successfully litigated under the HAA. In Californians for Homeownership v. City of Huntington Beach, Orange County Superior Court Case No. 30-2019-01107760-CU-WM-CJC, the court ruled that Huntington Beach violated the HAA when it unlawfully rejected a condominium project. That city attempted to appeal the decision but abandoned its appeal after coming to understand that it would need to post a multimillion dollar bond to do so. It ultimately agreed to approve the project and pay $600,000 in attorneys’ fees to us and two other plaintiffs.
And to be clear, if the City Council affirms the incompleteness determination regarding the 125-129 S. Linden Drive project, that will constitute a denial of the project for purposes of the HAA. The City’s action is a transparent sham that attempts to insulate the City from HAA liability by disguising a denial as an incompleteness determination. Among other things, the City cannot demand that an applicant under the builder’s remedy apply for a general plan amendment or rezoning in order to have its application deemed complete. The builder’s remedy requires the City to disregard its zoning and general plan standards, not to change them.
It is not surprising that the City would rather the applicant follow a much more discretionary pathway to permit this project, but it cannot legally required the applicant to do so.
If anything, the City’s attempt to disguise its denial as an incompleteness determination only provides further evidence that would support a bad faith finding under the HAA. And we note that a Los Angeles Superior Court judge recently overruled a demurrer filed by another City that had similarly attempted to misconstrue a denial as an incompleteness determination.2 We urge the City to follow the law. If it refuses to do so, we intend to initiate litigation against the City under the HAA.
Sincerely,
Matthew Gelfand
cc: Michael Forbes, Comm. Dev. Dir. (by email to [email protected]) Masa Alkire, City Planner (by email to [email protected]) Nancy Hunt-Coffey, City Manager (by email to [email protected]) Ryan Gohlich, Asst. City Manager (by email to [email protected]) City Council (by email to [email protected]; [email protected]; [email protected]; [email protected];
[email protected])
Laurence Wiener, Esq., City Attorney (by email to [email protected]) 1 https://www.berkeleyside.org/2024/02/16/court-ruling-1900-fourth-street 2 November 22, 2023 Order Overruling Demurrer, California Housing Defense Fund v. City of La Cañada Flintridge, Los Angeles Superior Court Case No. 23STCP02614.
From: n a
Date: February 21, 2024 at 8:47:57 PM PST
To: [email protected]
Subject: Re: 125-129 S. Linden Drive - Project Update and Public Hearing Information Hello,
Thanks so much for keeping us in the loop for this project. We live on Linden Dr and would be utmost affected if this project gets a go ahead. Already Linden residents are greatly affected by heavy traffic and lack of parking spaces on the street. There are literally just a few metered parking spaces and the guests and visitors, as well as the parents of Good Shepherd Catholic school get a lot of parking tickets.
Linden is a main connecting corridor for any transit from Olympic Drive to Wilshire especially for westbound traffic. The businesses surrounding the Linden-Wilshire suffer severely from the lack of parking spaces. Already when someone travels from Golden Triangle to Linden we spend almost 10 minutes to pass Wilshire specially since a No turn on red sign was placed from North Linden to Wilshire last year significantly slowing the traffic.
We hope these points would be taken into consideration when the project is discussed.
Thanks so much for your kind attention.
Nara
Sent from my iPhone