Item F-2 Agenda Report — Beverly Hills City Council, June 27, 2024 (part 1 of 7)

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AGENDA REPORT
Meeting Date: June 27, 2024
Item Number:

To: Honorable Mayor & City Council
From: Masa Alkire, AICP, Assistant Director of Community Development/City Planner
Edgar Arroyo, Senior Planner
Subject: AN APPEAL OF STAFF'S OCTOBER 13, 2023 INCOMPLETE

APPLICATION 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; AND,

A RESOLUTION OF THE COUNCIL OF THE CITY OF BEVERLY
HILLS DENYING AN APPEAL OF STAFF’S OCTOBER 13, 2023

INCOMPLETE APPLICATION DETERMINATION AND UPHOLDING
THE CITY’S INCOMPLETE APPLICATION DETERMINATION,

FINDING THE ACTION EXEMPT FROM THE CALIFORNIA

ENVIRONMENTAL QUALITY ACT
Attachments: 1. Draft Resolution

2. May 12, 2023 Incomplete Determination (1st Round)

3. Applicant’s Response to 1st Round Incomplete Determination Dated August 9, 2024 w/o Attachments

4. October 13, 2023 Incomplete Determination (2nd Round)

5. Applicant’s Response to 2nd Round Incomplete Determination Dated January 10, 2024 w/o Attachments

6. February 9, 2024 Incomplete Determination (3rd Round)

7. Applicant’s Response to 3rd Round Incomplete Determination Dated May 9, 2024 w/o Attachments

8. June 7, 2024 Incomplete Determination (4th Round)

9. City’s Appeal Procedures

10. HCD Letter of Technical Assistance – March 28, 2024

11. Public Hearing Notice

12. Public Correspondence
Meeting Date: June 27, 2024

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13. Appeal Petition

14. Project Plans

RECOMMENDATION
Staff recommends that the City Council:

1. Hold a public hearing to consider the appeal of staff’s October 13, 2023, determination that the application for a proposed mixed use development at 125-129 South Linden Drive is incomplete (Attachment 13).

2. Adopt a resolution denying the appeal and upholding the October 13, 2024, incomplete determination (Attachment 1).1

INTRODUCTION
On April 14, 2023, Rand Paster & Nelson, LLP, on behalf of 9300 Wilshire, LLC (collectively referred to as the “Applicant”) filed a Development Plan Review (DPR) 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”). 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. Of the 165 dwelling units proposed, 20% of the units (33 units) are proposed to be reserved for rental to lower income households.

Parking for 126 vehicles is proposed within a four-level subterranean parking structure that would be accessed from an alley abutting the rear of the property. 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 the DPR application as a “Builder’s Remedy” project, which relies on the provisions of the Housing Accountability Act (HAA), codified in California Government Code §65589.52
, by providing at least 20% of the total units in the development to lower income households.

On October 13, 2023, the City issued an incomplete letter for the second round of review of the project application (Attachment 4). As documented in the incomplete letter, staff determined that the application was incomplete for a variety of reasons, including:
• Missing application materials (including but not limited to rooftop operations plan, location and details of proposed rooftop elements (elevators, stairs, mechanical equipment and screening); required setback information; front yard paving information; information regarding site walls and fencing; required information regarding rubbish storage facilities; loading details and studies; and an adequate shade and shadow study).
• Missing applications (including the requirement to file applications for a General Plan Amendment and Zone Text Amendment for the project)
1 If the Council determines that it wishes to uphold the appeal, then the Council should direct staff to prepare a resolution for consideration at this evening’s meeting. 2 The full text of Government Code §65589.5 is available online at:
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=65589.5 Meeting Date: June 27, 2024

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• Corrections related to the project’s compliance with applicable development standards, and comments related to applicable state requirements.

On November 13, 2023, the Applicant submitted an appeal of the City’s incomplete determination (Attachment 13) without the required appeal filing fee. The Applicant subsequently paid the fee on January 11, 2024. The appeal was filed pursuant to California Government Code Section 65943(c)3
. This California Government Code section stipulates that a public agency must provide a process for an applicant to appeal a determination that an application is incomplete to the City’s governing body. Pursuant to this section, the governing body is required to provide a final written determination within 60 days of receiving the appeal. If a final written determination is not issued by the City within 60 days, the application would be deemed complete and eligible for processing in spite of the missing required application materials, unless, as in this case, there is agreement to extend that deadline.

The Applicant’s appeal letter lists the following rationale for the appeal:
• The Project maintains vested rights pursuant to the Housing Crisis Act • The Builder’s Remedy provision of the Housing Accountability Act applies to the Project.

Applicant’s responses to the incomplete letters take the position that the City cannot require the Applicant to comply with objective code requirements, or address those deviations through general plan or zoning amendments because of the so called “Builder’s Remedy,” and thus the Applicant does not need to provide the application information required by the City.

By way of background, the so-called “Builder’s Remedy” generally refers to certain findings pursuant to the HAA that must be made in order for a local agency to disapprove a qualifying housing development project meeting certain affordability requirements, and which findings require a certified housing element. (Govt. Code § 65589.5(d)(1) and (5).) Under certain circumstances, this may limit a local agency’s authority to deny a project proposing “housing for very low, low-, or moderate-income households”4
, even if that project is inconsistent with the
applicable general plan and zoning regulations.

With respect to the California Environmental Quality Act (CEQA), projects submitted pursuant to Builder’s Remedy provisions are subject to CEQA review. The HAA states specifically that nothing relieves a local agency from making the required CEQA findings and otherwise complying with CEQA. (Govt. Code § 65589.5(e)).

On February 6, 2024, the City Council initially set the appeal hearing date for March 11, 2024, pursuant to the City’s appeal procedures in Beverly Hills Municipal Code (BHMC) §1-4-105 (Attachment 9). Subsequently, at the request of the Applicant, the Council agreed to continue the appeal hearing to April 16, 2024, May 21, 2024, and June 27, 2024. Pursuant to California Government Code § 65943(c), the City is required to make a written determination of the appeal within 60 days from the date the appeal was filed. Although the appeal was submitted on November 13, 2023, the required appeal fees were not paid until January 11, 2024 (the “filing 3 The full text of Government Code §65943 is available online at:
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=65943 4 Pursuant to the Housing Accountability Act, “‘housing for very low, low-, or moderate-income households’ mean that either (A) 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, or (B) 100 percent of the units shall be sold or rented to persons and families of moderate income as defined in Section 50093 of the Health and Safety Code, or persons and families of middle income, as defined in Section 65008 of this code.” (Govt. Code § 65589.5(h)(3).)
Meeting Date: June 27, 2024

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date”), and thus the City would have been required to render a decision on the appeal and provide a written determination by March 11, 2024. However, as the appeal hearing was continued at the request of the Applicant, the timeline outlined in California Government Code Section 65943(c) is no longer applicable.

Subsequent to the Applicant’s submittal of the appeal, the Applicant submitted additional information and revised plans to the City on January 10, 2024 (Attachment 5), which were partially responsive to the City’s October 13, 2023, incomplete letter. Staff reviewed the resubmittal and in this third round of review again deemed the application incomplete on February 9, 2024 (Attachment 6). Thereafter, on May 9, 2024, the Applicant submitted further revised plans and responses (Attachment 7) to the comments in staff’s February 9, 2024 letter.

Upon review of the additional information, staff issued an incomplete letter on June 7, 2024 (Attachment 8), and no additional information has been submitted at this time.

DISCUSSION
Project Review Process
City staff has reviewed the project and issued multiple incomplete application determination letters in response to the application materials and plans provided by the Applicant. The City’s initial incomplete determination was issued on May 12, 2023 (Attachment 2), and included comments related to the project’s compliance with applicable development standards, additional documents and studies required to evaluate the project, and requests for missing application materials, including General Plan Amendment, Zone Change, and Zone Text Amendment applications.5 Subsequent incomplete application determination letters were issued on October 13, 2023 (Attachment 4), which is the subject of this appeal, and on February 9, 2024 (Attachment 6), and June 7, 2024 (Attachment 8), in response to the resubmittals of application materials on January 10, 2024, and May 9, 2024. The subsequent incomplete determination letters provided similar comments as were provided in the initial letter, though several corrections have been addressed by the Applicant team in the subsequent resubmittals.

However, as designed, the project remains inconsistent with various zoning and General Plan requirements. The City has requested in each incomplete determination that the Applicant file General Plan Amendment, Zone Change, and Zone Text Amendment applications to address the project’s nonconformity with the City’s General Plan and zoning development standards.

The Applicant did not appeal either the February 9, 2024 or June 7, 2024, incomplete determinations, and the appeal periods in which to do so have expired.6 Consistent with the City’s position as articulated in the various incomplete application determination letters, the State Department of Housing and Community Development (HCD) recently determined that under the HAA, cities still may require discretionary permits and/or legislative actions for projects seeking approvals pursuant to the Builder’s Remedy provisions, where the projects are inconsistent with the zoning or General Plan. (Compton Technical Assistance Letter, March 28, 2024; Attachment 10)
5 The Applicant’s November 13, 2023, appeal letter asserts that “The City’s First Incomplete Letter clearly rejected the entire legal premise that the Project may proceed under a Builder’s Remedy provision of the HAA, and instead instructed the Applicant to pursue a General Plan Amendment and Zone Change to cure areas where the Project does not comply with current zoning.” As discussed below, this is only true because the “project” submitted is substantially different from the “project” described in the Preliminary Application, and the Preliminary Application therefore was no longer applicable. 6 It should also be noted that Applicant’s appeal of the October 13, 2023, incomplete application determination is moot both because it was not timely filed, and also because the Applicant has submitted additional information that resulted in two later incomplete determinations (the February 9, 2024 and June 7, 2024 determinations) that were not appealed during the applicable 14-day appeal periods.

Meeting Date: June 27, 2024

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In the letter, HCD answers the following question, “Does the HAA prevent a city from requiring that a project application include a request to amend the general plan/zoning code in order to avoid a legal non-conformity if/when the project is approved?” HCD’s response concludes that, “No provision in the HAA prevents a local government from requesting a general plan/zoning code amendment in order to avoid a legal non-conformity. The HAA provides only that a local government must make one of five findings to deny a housing development project for very low-, low-, or moderate-income households.” HCD goes on to say:
“Further, the Builder’s Remedy does not expressly prevent the City from requiring discretionary permits and/or legislative actions (e.g., GPAs, Zoning Changes, CUPs, specific plan amendments, etc.) that would be required for similar projects where the Builder’s Remedy does not apply.” In a footnote, HCD states that, in the Compton situation, the legislative changes “are only intended to remedy inconsistencies between the Project and applicable regulatory documents that will result when the Project is approved.” This is the same basis upon which staff is recommending that the applications for amendments, be required here, in addition to ensuring that due process rights of neighbors and interested parties are afforded through applicable procedures for processing General Plan and zoning amendments. Based on the technical guidance by HCD, staff’s position remains that requiring the aforementioned legislative actions does not mean that the City is denying or disapproving the project, but rather is ensuring that any inconsistencies with the existing General Plan and Zoning Ordinance could be analyzed and resolved through the entitlement review process, which protects due process rights of neighbors as well.

Appeal Process
California Government Code § 65943(c) requires public agencies to provide a process by which an applicant can appeal the City’s determination that an application is incomplete to the City’s governing body, as noted below (underlined emphasis added):

Government Code Section 65943(c)
“(c) If the application together with the submitted materials are determined not to be complete pursuant to subdivision (b), the public agency shall provide a process for the applicant to appeal that decision in writing to the governing body of the agency or, if there is no governing body, to the director of the agency, as provided by that agency. A city or county shall provide that the right of appeal is to the governing body or, at their option, the planning commission, or both.”
The City’s process for appeals of administrative decisions to the City Council is detailed in BHMC Title 1, Chapter 4, Article 1, and includes provisions establishing the time frame for appeals to be filed with the City. Since the City has an existing codified process for appealing administrative decisions to the City Council (Attachment 9), it is in compliance with the above cited California Government Code requirement.

Pursuant to BHMC §1-4-102, an appeal petition must be filed with the City Clerk within 14 calendar days after the decision date. The appeal petition (Attachment 13) was submitted on November 13, 2023, which is 31 days after October 13, 2023, the date of the incomplete determination. Furthermore, while the appeal petition was submitted on November 13, 2023, the Applicant did not pay the required appeal filing fees until January 11, 2024, which is 90 days after the date that the City issued the October 13, 2023, incomplete determination.

Meeting Date: June 27, 2024

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Because the Applicant did not submit a timely appeal of staff’s incomplete determination within the required 14-day appeal filing deadline, staff recommends that the City Council deny the appeal on that ground.

Further, even if the appeal was timely, the application was clearly incomplete on October 13, 2023, because the following submittal requirements were not satisfied, separate and apart from the disputed general plan amendment and zoning amendment applications:
1) The plans did not include required information regarding rooftop mechanical equipment and screening (Correction 7c)
2) The plans do not show the code-required setbacks (Corrections 9 a, b, c, d, e) 3) The plans do not include required front yard paving information (Correction 11) 4) The plans did not include details regarding proposed site walls or fences (Correction 12)7
5) The plans did not include sufficient information related to loading and potential issues with T-alley intersection (Correction 14b)
6) The plans did not include required details regarding rubbish storage calculations (Correction 19)8
7) The plans did not include details regarding alley dedication and relationship to landscape plans (Correction 20)9
8) The Applicant submittals did not include an adequate shade and shadow study (Correction 23)10
9) The Applicant submittals did not include an adequate rooftop operations plan (Correction 24)11
Items 1, 2, 3, and 5 still have not been provided despite the City’s multiple letters identifying that the information is required for a complete application. Thus, even after the two subsequent applicant submittals that have not been appealed (and which arguably supersede the incomplete application determination on which the current appeal is based), the application remains incomplete. This is an independent basis upon which to deny the appeal and uphold the determination that the application is incomplete.

Analysis of Applicant Appeal Letter
Although the appeal was untimely, and is arguably moot in light of the two subsequent incomplete application determinations that were not timely appealed, we provide responses to the various points raised in the appeal letter dated November 13, 2023. We note that much of this information was previously provided to the Applicant in the incomplete determination letters issued previously.

Preliminary Application
The Applicant asserts that the Preliminary Application submitted on October 24, 2022 remains valid. Staff disagrees.
7 This item was ultimately addressed in the subsequent January 10, 2024 submittal. 8 This item was ultimately addressed in the subsequent May 9, 2024 submittal. 9 This item was ultimately addressed in the subsequent May 9, 2024 submittal. 10 This item was ultimately addressed in the subsequent May 9, 2024 submittal. 11 This item was ultimately addressed in the subsequent January 10, 2024 submittal.

Meeting Date: June 27, 2024

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As stated in the prior letters, on October 24, 2022,12 the property owner (9300 Wilshire LLC) submitted a Preliminary Application pursuant to Government Code Section 65941.1 (the PA) for a housing development. The purpose of a PA is to vest the rights of a project to be processed pursuant to the ordinances, policies, and standards adopted and in effect at the time that the PA was submitted. As discussed below, there are certain procedural aspects that must be followed in order to maintain the vesting effect of a PA, including the submittal of a formal project application for the project described in the PA within 180 days.

Thereafter, on April 14, 2023, the property owner submitted a formal Development Plan Review (DPR) application for a housing development project, which was within 180 days of the PA submittal date noted above as required to maintain the validity of the PA.

The project that was submitted as part of the PA (the PA project) consisted of a residentialonly project that included 200 dwelling units within a 259,547 SF, 16-story building. The building was proposed with a height of 170’ and included 124 parking spaces within a fourlevel subterranean parking structure.

The project for which the DPR application was submitted (the DPR project) is substantially different from the project for which the PA was submitted. The DPR project plans submitted entail a mixed-use development that includes 165 dwelling units and a 73-room hotel and hotel restaurant within a 311,197 SF, 19-story building. The building contemplated in the DPR project application is now proposed with a height of 200’ and includes 126 parking spaces within a four-level subterranean parking structure. Thus the DPR project includes substantially different uses (all residential in the PA to mixed use, including a hotel and restaurant).

Meeting Date: June 27, 2024

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Applicant’s argument that the PA remained valid even though it made no mention of any nonresidential development, as specifically required by Government Code Section 65941.1(a)(4), is flawed.

The DPR application describes a very different project from the PA project:
“The project consists of the construction of a new 19-story mixed use, multifamily residential and hotel building, with 165 rental apartment units (including 33 affordable housing units) and ancillary residential spaces, 73 hotel rooms and ancillary hotel spaces, and 126 parking spaces.” (Emphasis added.) Based on the introduction of the new hotel and restaurant uses in the DPR project, which were not contemplated in the PA project, the Department continues to conclude that, as a threshold matter, the DPR project submittal is for a project different from what was described and proposed in the PA. Because the DPR project is substantially different from the project described in the PA, the Department continues to conclude that the DPR application, although filed within 180 days of the filing of the PA, is not sufficient to meet the filing requirement of Govt. Code Section 65941.1(d)(1). Therefore, the Department continues to find that the PA has expired and is of no further force or effect.

Under Planning and Zoning Law, a PA is different from a formal application, as discussed above. The failure to submit, within 180 days of a PA submittal, a formal application for the project as proposed in the PA means the PA lapses. The City is not aware of any statute or case authority that would support a position that an applicant may submit a PA for one project in order to lock in the governing regulations, and then subsequently submit a formal application for an entirely different version of the project, and still claim a vested right to proceed under the regulations applicable when the PA was filed. While Section 65941.1(d)(2) does allow flexibility to adjust the number of units in a project, and the building square footage by up to 20% of what is described in the PA, nothing in this section authorizes introduction of new land uses in a formal application that were not identified in the PA. Applicant’s argument that applicants can introduce any uses in a formal application, if accepted, would have the effect of writing the requirement of Section 65941.1(a)(4) to identify land uses in a PA out of the statute, as it would have no meaning.

Further, the Applicant had a readily available remedy to this issue, but did not avail itself of that remedy. Specifically, the Applicant could have filed a new PA for a project that included the hotel and restaurant elements before May 1, 2024, when the City received Housing Element certification from HCD, and thus could have contended that the Builder’s Remedy provision still applied to the new PA for a revised project. The Applicant, however, did not file a new PA at any time and thus no PA was ever submitted with a project description and related information that matches the formal application that the Applicant has since submitted, and which is the subject of this appeal. The Applicant was on notice of the City’s position in this regard on May 12, 2023, when the first incomplete determination letter was issued, which is almost a full year before HCD certified the City’s Housing Element, yet the Applicant never submitted a new PA.

Finally, as a separate and independent ground, the PA expired and is of no further effect because the formal project application was not complete within the 90-day period required pursuant to Govt. Code Section 65941.1(d)(2). Pursuant to that section, the Applicant had through August 10, 2023, to submit a complete application. Because the application Meeting Date: June 27, 2024

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remains incomplete at this time, the application submittals have not and cannot meet the requirements of Govt. Code Section. 65941.1(d)(2).

The Applicant has argued that pursuant to Government Code Section 65941.1(d)(2), project applicants are entitled to unlimited 90-day periods in which to address incompleteness items. Applicant compares the preliminary application 90-day period following an initial incomplete determination for the formal project application to the standard 30-day completeness review period in Government Code Section 65943(a), and argues that both statutes provide unlimited opportunities for resubmittals. The Applicant, however, ignores the fact that the language used in the two sections is very different. If the legislature intended Section 65941.1(d)(2) to operate in the same manner as 65943 (a) they were well aware of how to effect that intent, because Section 65943 was in place for many years before the Preliminary Application process became effective in January, 2020. The Legislature is presumed to mean what it says and to know what existing law is when enacting legislation.

The Applicant’s appeal letter in fact highlights the following language that clearly differentiates Section 65943(a) from Section 65941.1(d)(2):
“Upon receipt of any resubmittal, a new 30-day period shall begin, during which the public agency shall determine completeness of the application.” (Section 65943(a).) In contrast, Section 65941.1(d)(2) provides, in relevant part:
“(2) If the public agency determines that the application for the development project is not complete pursuant to Section 65943, the development proponent shall submit the specific information needed to complete the application within 90 days of receiving the agency’s written identification of the necessary information. If the development proponent does not submit this information within the 90-day period, then the preliminary application shall expire and have no further force or effect. (Emphasis added.)
First, there is no language in Section 65941.1(d)(2) stating that a new 90-day period begins upon any subsequent submittal of information needed to complete the application. Second, the statutory language refers to “the 90-day period”, which indicates that there is only one 90-day period in which to submit the “specific information needed to complete the application.” Thus, the plain reading of Section 65941.1(d)(2) clearly provides for only one 90-day period following an initial completeness determination. Further, if an applicant compiles the information needed to complete the applications within, by way of example, 20 days, the City would need to review that information within 30 days, pursuant to Section 65943, leaving an applicant 40 days to compile and submit the outstanding information. This demonstrates that if an applicant works quickly to submit needed information, there is the opportunity for multiple submittals to the City within the 90 day period afforded by Section 65941.1(d)(2).

Finally, the Applicant provide no specific support or legal authority for its position, only arguing by analogy to a process that, as explained above, is different on its face.

Environmental Review / Informational Comments:

The Applicant asserts that additional information included in the incomplete letter which put them on notice about the need to review the Project, once the formal application was Meeting Date: June 27, 2024

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complete, pursuant to the California Environmental Quality Act (CEQA) “set the Applicant up for failure....” This is incorrect. As clearly indicated in the text of the comment, staff was informing the Applicant that environmental review will be required for the Project, and that additional fees will be required, depending on the level of CEQA review that is required.

Similarly, information from various City departments was included to provide early information for the Applicant’s benefit, much of which will need to be addressed in later stages of review, after planning entitlements are obtained. While these types of comments are not necessary for the purpose of a completeness determination, it benefits applicants to know what issues might arise in later stages of project review so that they can be addressed early in the design process. This is a standard practice to streamline project review and avoid building code and other issues from requiring redesign of projects late in the review process.

As stated above, CEQA applies to projects submitted under the HAA (Govt. Code Section 65589.5(e).) Thus, by advising the Applicant that CEQA review would be required, the City was simply stating what the law requires and next steps in project processing when a complete application is submitted.

ENVIRONMENTAL ASSESSMENT
The recommended action has been assessed in accordance with the California Environmental Quality Act (CEQA, Public Resources Code Sections 21000 et seq.), the State CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.), and the environmental regulations of the City. Pursuant to the State CEQA Guidelines Section 15378(b)(5), a determination regarding the application’s completeness is exempt from CEQA as an administrative government activity that will not result in direct or indirect physical changes in the environment.

No environmental review has yet been performed on the project itself because the application remains incomplete. If and when all required application materials are submitted and the project application is deemed complete, environmental review of the project will be completed and made available for public review and comment.

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 11). 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.

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 12 to this report.

Meeting Date: June 27, 2024

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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
Draft Resolution
B0785-0001\2980485v2.doc
RESOLUTION NO. 24-R-________

A RESOLUTION OF THE COUNCIL OF THE CITY OF
BEVERLY HILLS DENYING AN APPEAL OF STAFF’S
OCTOBER 13, 2023 INCOMPLETE APPLICATION
DETERMINATION AND UPHOLDING THE CITY’S

INCOMPLETE APPLICATION DETERMINATION, FINDING

THE ACTION EXEMPT FROM THE CALIFORNIA

ENVIRONMENTAL QUALITY ACT
The City Council of the City of Beverly Hills herby finds, resolves and determines as follows:

Section 1. Rand Paster & Nelson, LLP, on behalf of 9300 Wilshire, LLC (the “Applicant”) filed a Development Plan Review (“DPR”) application for a new 19-story, 200’ tall, mixed use building (the “Project”) at 125-129 South Linden Drive (the “Project site”). 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) proposed to be reserved for rental to lower income households. The Applicant submitted the DPR application as a “Builder’s Remedy” project, which relies on the provisions of the Housing Accountability Act (“HAA”), codified in Government Code §65589.5, by providing at least 20 percent of the total units in the development to lower income households.

Section 2. On November 13, 2023, an appeal of staff’s October 13, 2023, incomplete application determination was submitted by the Applicant and paid for on January 11, 2024, in accordance with BHMC §1-4-101 et seq., seeking City Council review of City staff’s October 13, 2023, incomplete application determination. As documented in the incomplete determination DocuSign Envelope ID: 3D3D9CAC-BC55-4350-8FAB-AB0A627D9C4A -2-
B0785-0001\2980485v2.doc
letter, staff determined that the application was incomplete for a variety of reasons, including:
missing applications and application materials (including the requirement to file applications for a General Plan Amendment and Zone Text Amendment for the project), corrections related to the Project’s compliance with applicable development standards, and comments related to applicable state requirements. The appeal was filed pursuant to Government Code Section 65943(c), which stipulates that the City must provide a process for an applicant to appeal to the City’s governing body a determination that an application is incomplete.

Section 3. After filing the appeal of the October 13, 2023, incomplete application determination, and in response to that determination, the Applicant submitted additional information on January 10, 2024. The additional information was reviewed by staff, resulting in a third determination of application incompleteness, as memorialized in the letter dated February 9, 2024. The Applicant did not appeal that determination within the 14-day appeal period.

Section 4. On May 9, 2024, the Applicant again submitted additional information in response to the February 9, 2024, incomplete application determination. The additional information was reviewed by staff, resulting in a fourth determination of application incompleteness, as memorialized in the letter dated June 7, 2024. The Applicant did not appeal that determination within the 14-day appeal period.

Section 5. Notice of the appeal and public hearing was mailed on February 16, 2024 to all property owners and residential occupants within a 500-foot radius of the property, extended to the block face. An on-site posted notice was displayed on the property beginning on February 15, 2024. A notice was published in two newspapers of local circulation, the Beverly Hills Courier and the Beverly Hills Weekly, on February 16, 2024 and February 22, 2024. On February 6, 2024, DocuSign Envelope ID: 3D3D9CAC-BC55-4350-8FAB-AB0A627D9C4A -3-
B0785-0001\2980485v2.doc
the City Council set the appeal hearing date for March 11, 2024, pursuant to the City’s appeal procedures in Beverly Hills Municipal Code (BHMC) §1-4-105. Thereafter, at the request of the Applicant, the Council continued the appeal hearing to April 16, 2024, May 21, 2024, and June 27, 2024. On June 27, 2024, the City Council considered the appeal petition at a duly noticed public hearing. Evidence, both oral and written, was presented at said hearing.

Section 6. This appeal has been assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (“CEQA,” Public Resources Code Sections 21000 et seq.), the State CEQA Guidelines (California Code of Regulations, Title 14, Sections 15000 et seq.), and the environmental regulations of the City. 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, are exempt from CEQA.

Therefore, the City Council hereby finds that this appeal of application completeness is exempt from further review under CEQA.

Section 7. Based upon the evidence contained in the record on this matter, the City Council hereby denies the appeal of City staff’s October 13, 2023, incomplete application determination and upholds staff’s incomplete application determination for the Project proposing the construction of a new 19-story mixed use development at 125-129 South Linden Drive for the following reasons, each of which is a separate and independent basis for the City Council’s denial of the appeal:

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A. The Appeal Was Untimely.

The Applicant did not submit the appeal petition in a timely manner, as required pursuant to BHMC §1-4-102. The City has a codified process in its municipal code by which an applicant can appeal administrative decisions to the City Council. This codified process satisfies the requirement of California Government Code Section 65943 (c) that the City provide a process for an applicant to appeal to the governing body (the City Council) a determination that an application subject to the Permit Streamlining Act is incomplete. The City’s appeal process for administrative decisions requires submittal of an appeal within 14 days of the decision. The subject appeal petition was submitted on November 13, 2023, which is 31 days after the October 13, 2023, incomplete application determination. Furthermore, while the appeal petition was submitted on November 13, 2023, the Applicant did not pay the required appeal filing fees until January 11, 2024, which is 90 days from the date that the City issued the incomplete application determination.

The City Council hereby rejects the appeal as being untimely.

B. The Appeal is Moot.

After filing the untimely appeal of the October 13, 2023, incomplete application determination, the Applicant twice submitted additional information, resulting in the subsequent incompleteness determinations on February 9, 2024, and June 7, 2024, which determinations were not appealed. The City Council finds that because the Applicant failed to appeal the subsequent incomplete application determinations within the applicable 14-day appeal periods, those determinations are final. As a result of these now-final subsequent determinations, the incomplete application determination that is the subject of this appeal is moot.

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C. Information Required for the DPR Application Was Missing when Appeal was filed.

On November 13, 2023, when the appeal form was filed with the City (without the required processing fee), the DPR application was incomplete, as documented in the October 13, 2023, incomplete letter. Specific DPR incompleteness items at that time included:
1) The plans did not include required information regarding rooftop mechanical equipment and screening (Correction 7c).
2) The plans did not show the code-required setbacks (Corrections 9a, b, c, d, e) 3) The plans did not include required front yard paving information (Correction 11) 4) The plans did not include details regarding proposed site walls or fences (Correction 12) 5) The plans did not include sufficient information related to loading and potential issues with T- alley intersection (Correction 14b)
6) The plans did not include required details regarding rubbish storage calculations (Correction 19)
7) The plans did not include details regarding alley dedication and relationship to landscape plans (Correction 20)
8) The Applicant submittals did not include an adequate shade and shadow study (Correction 23)
9) The Applicant submittals did not include an adequate rooftop operations plan (Correction 24)
Therefore, the City Council finds that the Application was incomplete based on the Applicant’s failure to submit the foregoing information, individually and collectively.

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D. Information Required for the DPR Application Remains Missing.

Although the Applicant did not appeal either the February 9, 2024, or June 7, 2024, incomplete determinations, the City Council nonetheless finds that, as of the date of adoption of this Resolution, the DPR application remains incomplete because the following information has not been provided:
1) The plans do not include required information regarding rooftop mechanical equipment and screening (Correction 7c).
2) The plans do not show the code-required setbacks (Corrections 9a, b, c, d, e) 3) The plans do not include required front yard paving information (Correction 11) 4) The plans do not include sufficient information related to loading and potential issues with T- alley intersection (Correction 14b)
E. Project Does Not Qualify As a “Builder’s Remedy” Project Because the Formal Development Project Filed by The Applicant Is Not Consistent With the Preliminary Application On Which Applicant Purports to Rely.

The Applicant asserts that the Preliminary Application submitted on October 24, 2022 remains valid, and thus vests Applicant’s Project to the rules in effect on that date, including rules related to the City’s lack of a certified Housing Element at that time. The Applicant asserts that the City’s lack of a certified Housing Element on that date means that the City’s General Plan and zoning regulations cannot be applied to the Project in light of the so called “Builder’s Remedy” provisions of the HAA (Govt. Code Section 65589.5 (d)). The issue of the scope of the “Builder’s Remedy” limitations on a local agency’s authority to require compliance with development standards is not relevant here because the Applicant’s DPR submittal was for a project that is not the same as the project described in the Preliminary Application.

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More specifically, as stated in the various City-issued incomplete letters, on October 24, 2022, the property owner (9300 Wilshire LLC) submitted a Preliminary Application pursuant to Government Code Section 65941.1 (the PA) for a housing development to vest the rights of a project under the ordinances, policies, and standards adopted and in effect at the time that the PA was submitted. Thereafter, on April 14, 2023, the property owner submitted a formal DRP application for a housing development project, which was within 180 days of the PA submittal date noted above, as required by Govt. Code Section 65941.1(d)(1), in an effort to maintain the validity of the PA.

The project that was described in the PA (the “PA project”) consisted of a residential-only project with 200 dwelling units within a 259,547 SF, 16-story building. The building was proposed with a height of 170’ and included 124 parking spaces within a four-level subterranean parking structure.

The project for which the DPR application was submitted (the “DPR project”) is substantially different from the PA project. The DPR project plans show a mixed-use development that includes 165 dwelling units and a 73-room hotel and hotel restaurant within a 311,197 SF, 19- story building. The building contemplated in the DPR application is now proposed with a height of 200’ and includes 126 parking spaces within a four-level subterranean parking structure.

The Applicant did not submit a formal application for the project as described in the PA within 180 days as required by the statute. The DPR application that was filed describes a very different project:
“The project consists of the construction of a new 19-story mixed use, multifamily residential and hotel building, with 165 rental apartment units (including 33 affordable housing units) and ancillary residential spaces, 73 hotel rooms and ancillary hotel spaces, and 126 parking spaces.”
Based on the introduction of the new hotel use in the DPR project, which was not contemplated in the PA project, the City Council concludes that the DPR project submittal is for a project substantially different from the PA project, and that the DPR application, although filed within 180 days of the filing of the PA, is not sufficient to meet the filing requirement of Govt.

Code Section 65941.1(d)(1). Therefore, the City Council finds that the PA has expired and is of no further force or effect.

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Finally, the Applicant had nearly a year following the City’s issuance of the initial incomplete determination letter on May 12, 2023, in which the City’s position regarding the scope of the PA was provided to the Applicant, to cure the issue by submitting a new PA that described the mixed-use project with hotel and restaurant uses following the City’s initial incomplete application determination. The Applicant can still resolve this issue now by submitting a new PA, although the project would not qualify as a “Builder’s Remedy” project because the City now has an HCD certified Housing Element.

F. Project Does Not Qualify As a “Builder’s Remedy” Project Because Applicant Did Not File a Complete Formal Development Application With the 90-day Period Required by Statute.

As a separate and independent ground, the PA is expired and of no further effect because the application remains incomplete for the reasons set forth in paragraph D of this Section 7, which is well outside of the 90 day period following the City’s initial incompleteness letter dated May 12, 2023, as required by Government Code Section. 65941.1(d)(2).

The Applicant asserts that applicants are entitled to a rolling 90-day period after each incompleteness determination in which to submit additional information, however, the text of Government Code Section 65941.1(d)(2) is different from the text of Government Code Section 65943(a) cited by the Applicant. Section 65943(a), expressly states that resubmittals begin a new 30-day review period, whereas the text of Section 65941.1(d)(2) is framed as a singular 90-day period. If the legislature intended the 90-day period in Section 65941.1(d)(2) to operate in the same manner as the 30-day review periods under Section 65943(a), it clearly could have said so by using the existing language in that section, but it did not do so.

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G. Even if the Project Did Qualify as “Builder’s Remedy” Project, the City Has the Authority to Require General Plan and Zoning Amendments for “Builder’s Remedy” Applications.

The substantial deviations from the General Plan and applicable R-4 zoning and other applicable ordinances as contemplated by the DPR project must be analyzed and processed pursuant to the City’s procedures, and nothing in the HAA divests the City of its authority to require an applicant to follow the City’s procedural and administrative requirements. Thus, in order to process the DPR project application, the applicant must also submit applications for amendments to the City’s General Plan, and zoning ordinances and/or map for concurrent processing. The applications for the respective amendments must clearly describe each of the amendments that are necessary to enable the proposed DPR project, including the land use designation and zoning so as to accommodate the mixed use and hotel uses, which are prohibited in the General Plan land use designation and R-4 zone in which the property is located. Further, the amendment applications must address any other necessary changes to related development standards with which the proposed DPR project does not comply, including but not limited to height, density, setbacks, and other standards as described in the incomplete application determination letters.

Following the proper legislative entitlement amendment process, in addition to the DPR process, is critical to (among other considerations) ensuring that the due process rights of surrounding property owners are respected and that those property owners may participate in the proceedings, including required public hearings, should they so choose.

The State Department of Housing and Community Development (“HCD”) recently issued a technical assistance letter in which HCD concurred with the City’s position as articulated in the various incomplete determination letters issued to the Applicant regarding the Project. HCD DocuSign Envelope ID: 3D3D9CAC-BC55-4350-8FAB-AB0A627D9C4A -11-
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determined the HAA does not prevent cities from requiring discretionary permits and/or legislative actions for “Builder’s Remedy” projects that are inconsistent with the zoning or General Plan. (Compton Technical Assistance Letter, March 28, 2024.).

In the letter, HCD answers the following question, “Does the HAA prevent a city from requiring that a project application include a request to amend the general plan/zoning code in order to avoid a legal non-conformity if/when the project is approved?” HCD concludes that “[n]o provision in the HAA prevents a local government from requesting a general plan/zoning code amendment in order to avoid a legal non-conformity. The HAA provides only that a local government must make one of five findings to deny a housing development project for very low-, low-, or moderate-income households.” HCD goes on to say:
“Further, the Builder’s Remedy does not expressly prevent the City from requiring discretionary permits and/or legislative actions (e.g., GPAs, Zoning Changes, CUPs, specific plan amendments, etc.) that would be required for similar projects where the Builder’s Remedy does not apply.” In a footnote, HCD notes that in the Compton situation, the legislative changes “are only intended to remedy inconsistencies between the Project and applicable regulatory documents that will result when the Project is approved.” This is the same basis upon which the City staff has stated that the applications for amendments are required, in addition to ensuring that due process rights of neighbors and interested parties are afforded through applicable procedures for processing General Plan and zoning amendments. Based on the technical guidance by HCD, the City Council concurs with staff’s position. The City Council further expressly finds that in requiring the aforementioned legislative actions, the City is not denying or disapproving the project, but rather is ensuring that any inconsistencies with the existing General Plan and zoning ordinances be resolved through the entitlement review process.

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Section 8. The City Clerk shall certify to the adoption of this resolution and shall cause this resolution and her certification to be entered in the Book of Resolutions of the Council of this City.

Adopted:

LESTER J. FRIEDMAN
Mayor of the City of Beverly Hills,
California
ATTEST:
_______________________________(SEAL)

HUMA AHMED
City Clerk
APPROVED AS TO FORM: APPROVED AS TO CONTENT:

LAURENCE S. WIENER
City Attorney

NANCY HUNT-COFFEY
City Manager
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ATTACHMENT 2
May 12, 2023
Incomplete Determination
(1st Round)

1 Edgar Arroyo, Senior Planner
Community Development Department
SENT VIA EMAIL May 12, 2023
Dave Rand
Rand Paster & Nelson LLP
633 W. Fifth Street, 64th Floor
Los Angeles, CA 90071
[email protected]
RE: 125 – 129 South Linden Drive – Development Plan Review for Mixed Use Development (PL2300126) Dear Mr. Rand:

Staff has reviewed your application and materials for the Development Plan Review submittal on April 14, 2023, for the proposed construction of a new mixed-use development at 125-129 South Linden Drive. The subject properties are located in the City’s R-4, Multiple Residential Zone, and High Density Multi-family residential General Plan land use designation. At this time, the application has been deemed incomplete for the reasons set forth below, and the previously filed Preliminary Application relating to the project site is deemed to be of no further effect due to changes in the project. Further, additional applications for amendments to the City’s General Plan and zoning ordinances are required to enable processing of the proposed project.

1. Preliminary Application
On October 24, 2022,
1 the property owner (9300 Wilshire LLC) submitted a Preliminary Application pursuant to Government Code Section 65941.1 (the PA) for a housing development to vest the rights of a project under the ordinances, policies, and standards adopted and in effect at the time that the preliminary application was submitted. Thereafter, on April 14, 2023, the property owner submitted a formal Development Plan Review (DRP) application for a housing development project, which was within 180 days of the PA submittal date noted above as required to maintain the validity of the PA.

The project that was submitted as part of the PA (the PA project) consisted of a residential-only project that included 200 dwelling units within a 259,547 SF, 16-story building. The building was proposed with a height of 170’ and included 124 parking spaces within a four-level subterranean parking structure.
1 Although the Preliminary Application was submitted on Friday, October 21, 2022, the fees for the application were paid after hours, thus the submittal date is considered to be Monday, October 24, 2022.

2 The project for which the DPR application was submitted (the DA project) is substantially different from the project for which the PA was submitted. The DPR plans submitted entail a mixed-use development that includes 165 dwelling units and a 73-room hotel and hotel restaurant within a 311,197 SF, 19-story building. The building contemplated in the DPR application is now proposed with a height of 200’ and includes 126 parking spaces within a four-level subterranean parking structure.

Pursuant to Govt. Code Section 65941.1 (a):
“An applicant for a housing development project … shall be deemed to have submitted a preliminary application upon providing all of the following information about the proposed project to the city … from which approval for the project is being sought and upon payment of the permit processing fee: ….” (Emphasis added.)
The information required in a preliminary application includes “[t]he proposed land uses by number of units and square feet of residential and nonresidential development using the categories in the applicable zoning ordinance.” (Govt. Code Sec. 65941.1(a)(4). (Emphasis added.)) The description of the proposed land uses included in the PA’s proposed project made no mention of any hotel or restaurant use or, for that matter, any other commercial or non-residential uses, and did not contemplate a mixed use project. The PA described the proposed land uses only as follows: “The proposed project will include 200 residential dwelling units in 259,547 (gross) sq. ft .” The DPR application, however, describes a very different project:
“The project consists of the construction of a new 19-story mixed use, multifamily residential and hotel building, with 165 rental apartment units (including 33 affordable housing units) and ancillary residential spaces, 73 hotel rooms and ancillary hotel spaces, and 126 parking spaces.”
Based on the introduction of the new hotel use in the DPR project, which was not contemplated in the PA project, the Department concludes that the DPR project submittal is for a project different from the PA project. Because the DPR project is substantially different from the project described in the PA, the Department concludes that the DPR application, although filed within 180 days of the filing of the PA, is not sufficient to meet the filing requirement of Govt. Code Section 65941.1(d)(1). Therefore, the Department finds that the PA has expired and is of no further force or effect.

2. General Plan Amendment and Zoning Amendment Applications Required The proposed DPR project does not conform to the City’s General Plan and various provisions of the City’s zoning code. These deviations include, but are not limited to that:

3 • Neither a hotel nor a mixed residential/commercial use project is a permissible use in either the High Density Multifamily Residential General Plan land use designation or the R-4 zoning applicable to the project site.
• The proposed height exceeds the maximum permissible heights allowed in the General Plan and R-4 zoning
• The proposed residential density exceeds the maximum allowed density on the site.

The substantial deviations from the General Plan and applicable R-4 zoning and related ordinance contemplated by the DPR project must be analyzed and processed pursuant to the City’s procedures, and nothing in the Housing Accountability Act (Govt. Code Sec. 65589.5.) divests the City of its authority to require an applicant to follow the City’s procedural and administrative requirements.

Thus, in order to process the DPR project application, the applicant must also submit applications for amendments to the City’s General Plan, and zoning ordinances and/or map for concurrent processing.

The applications for the respective amendments must clearly describe each of the amendments that are necessary to enable the proposed DPR project, including the land use designation and zoning so as to accommodate the mixed use and hotel uses, which are prohibited in the General Plan land use designation and R-4 zone in which the property is located. Further, the amendment applications must address any other necessary changes to related development standards with which the proposed DPR project does not comply, including but not limited to height, density, setbacks, and other standards as described in more detail below.

Following the proper amendment process, in addition to the DPR process, is critical to, among other considerations, ensuring that the due process rights of surrounding property owners are respected, and that those property owners may participate in the proceedings, including required public hearings, should they so choose.

3. Land Use – Sheets A01, A06, A07, A14, A15, A16, A28, and A29 The project site is located within the City’s R-4 Zone, and the High Density Multi-family Residential General Plan land use designation. BHMC Sections 10-3-1202 and 10-3-1203 detail the types of permitted and conditionally permitted uses within the R-4 Zone. As proposed, the DPR project2 consists of a mixed-use development that includes 165 dwelling units and a 73-room hotel and hotel restaurant. While residential development is permissible within the R-4 Zone and the High Density Multi-family Residential General Plan land use designation, subject to the applicable development standards, as noted above, mixed-use developments, including hotel and hotel restaurant uses, are not permissible in the R-4 Zone or the High Density Multi-family Residential General Plan land use designation.

Revise the project to remove commercial uses in the project or, as noted above, submit Zone Change and General Plan Amendment applications to seek consideration of the project, as well as the regulations within the R-4 Zone that do not facilitate the type of proposed mixed-use development. 2 Hereafter, the word “project” refers to the DPR project, unless otherwise noted.

4 4. Density – Sheet A01
The proposed project includes the development of 165 dwelling units on a 21,676.05 square-foot (SF) project site. The application materials submitted for this project note that the proposed project is not a density bonus project and is not seeking incentives, concessions, and/or waivers, or any subdivision which may be contemplated to separate the hotel uses from the residential uses. Specifically, as to density bonus, the PA specifically says “The project does not include a density bonus request under State Density Bonus Law”.

The City’s General Plan details the applicable density requirements for multi-family properties in the city. The applicable density for properties located in Multi-family Residential High Density Area is 50 dwelling units per acre (or 1 unit for every 871.2 SF of lot area). As such, the applicable density requirements would facilitate 25 dwelling units on the project site (21,676.05 / 871.2 = 24.88 units).

Fractional figures are rounded up to the nearest whole number.

As designed, the project exceeds the maximum number of allowable units by over 140 dwelling units.

Revise the project with a reduction in proposed units to comply with applicable density requirements.

Alternatively, the project may seek additional dwelling units above the otherwise applicable requirements by applying for a Density Bonus Permit. A density bonus project would be reviewed in compliance with applicable state density bonus law requirements.

Should the density of the project not be revised to comply with code requirements or pursuant to a density bonus proposal, the project as designed would require a zone change and general plan amendment, as noted above, because the project currently exceeds all applicable development standards for multi-family development in the City’s R-4 Zone and does not conform with the City’s General Plan.

5. Minimum Floor Area for Dwelling Units – Sheet A01 and Sheets A16 through A23 BHMC Section 10-3-2802 details the applicable minimum dwelling unit requirements for new development on properties located within the City’s R-4 Zone. The applicable minimum dwelling unit size are as follows:
• Studio/Efficiency Unit: Minimum floor area of 600 SF
• One Bedroom Unit: Minimum floor area of 1,000 SF
• Two Bedroom Unit: Minimum floor area of 1,300 SF
• Three Or More Bedroom Unit: Minimum floor area of 1,500 SF In review of the set of plans, the residential portion of the project consists of 165 dwelling units with a mix of 13 studio, 59 one-bedroom, and 93 two-bedroom units. As noted on Sheet A01, the average size of a studio unit is between 450 SF and 486 SF, the average size of a one-bedroom unit is between 652 SF and 658 SF, and the average size of a two-bedroom unit not located on the penthouse level (19th floor) is between 892 SF to 970 SF. As such, these units do not appear to provide the applicable minimum floor area for an efficiency, one-bedroom, or two-bedroom unit. Revise the project and design of each unit to provide the minimum floor area required.

5 6. Outdoor Living Space – Sheets A01, A08, and A09
a. Required Outdoor Living Space – BHMC Section 10-3-2803 details the applicable open space requirements for new development on properties located within the City’s R-4 Zone. Pursuant to this section, 200 SF of outdoor living space is required per dwelling unit. The required outdoor living space can be provided as private outdoor living space with a minimum dimension of 6’-0” on all sides, or as common outdoor living space with a minimum dimension of 15’ on all sides.

While the proposed development of 165 dwelling units exceeds the density allowed for the project site, should the applicant seek a zone change/general plan amendment to facilitate the project, the project would need to provide 33,000 SF of open space. As provided on the Open Space tables on Sheets A01, A08, and A09, the proposed project is proposing 18,228 SF of open space, which is approximately 14,772 SF less than what is otherwise required. Revise the project to provide the applicable area of outdoor living space per unit.
b. Outdoor Living Space Dimensions – Pursuant to BHMC Section 10-3-2803, outdoor living space can be provided as private outdoor living space with a minimum dimension of 6’-0” on all sides, or as common outdoor living space with a minimum dimension of 15’ on all sides. Based on the Open Space tables provided on Sheets A08 and A09, it appears that the project is providing open space in both common and private outdoor living areas. While the 18,228 SF of proposed outdoor living area is not sufficient to meet the required outdoor living space required per unit (33,000 SF of outdoor living space is required for 165 dwelling units), the open space diagrams provided do not include any dimensions to show that the minimum outdoor living space dimensions are being provided. Revise the open space diagrams to include the dimensions of each proposed common and private outdoor living space areas. Each area shall provide the minimum dimensions required to count toward the required outdoor living space.
c. Number of Dwelling Units – The number of dwelling units noted on the Open Space tables provided on Sheets A01, A08, and A09 do not match the number of units proposed for the project.

7. Building Height – Sheets A01, A11, A24, A25, A26, A27, A28, and A29 a. Maximum Allowable Height – The project site is comprised of two properties located within the City’s R-4 Zone. BHMC Section 10-3-2804 details the applicable height requirements for properties located in the R-4 Zone. The first property at 125 S. Linden Drive is located within Height District C, which allows for development up to five (5) stories with a maximum height of 55’. The second property at 129 S. Linden Drive is located within Height District B, which allows for development up to four (4) stories with a maximum height of 45’.

6 the maximum allowable height by 155’. Similarly, the portion of the project located in Height District C exceeds the maximum allowable height by 145’. Reduce the height of the proposed project to conform to the maximum allowable height for each applicable height district. b. Height of Rooftop Elements – Call out the height of all proposed rooftop elements on all sections and elevations, including the height of the proposed rooftop elevators, rooftop stairs, mechanical equipment screening, and any unoccupied architectural features (e.g., rooftop trellises and similar).

The rooftop elements shall comply with the maximum heights detailed under the definition of "Height of Building" for Multiple-Family Residential Zones in BHMC Section 10-3-100, as provided below, otherwise these features shall not be exempt from height and shall be counted toward the overall height of building:
• Structures enclosing elevator equipment and/or elevator lobbies if such structures are not higher than fifteen feet (15') above the adjacent roof deck and are not larger than the shaft of the elevator or elevators and their respective lobby areas. • Structures enclosing stairs required by law to be carried to the roof if such enclosing structure is used for no other purpose than enclosing the stairs and is no larger than the stair shaft below and if such enclosure is not more than twelve feet (12') in height as measured from the adjacent roof deck.
• Penthouse structures used exclusively for mechanical equipment for the building or structure if such penthouse structure is not more than ten feet (10') in height as measured from the adjacent roof deck.
• Parapets or handrails not more than forty-five inches (45") in height as measured from the roof or floor which they surround.
c. Mechanical Equipment Screening – Show the proposed rooftop mechanical equipment screening on all sections and elevations, as the proposed screening is not shown on the sections and elevations provided. Pursuant to BHMC Section 10-3-100 (Height), the max height is 15'-0" for mechanical equipment penthouses and enclosures.

8. Alley Dedication – Sheets A11 through A29
As required by the City’s Street Master Plan, a 2’-6” dedication is required along the north side and rear of the project site for widening of the existing 15’ alley to improve vehicular circulation. (See also BHMC Section 10-6-2, regarding street dedication and improvement requirements.) This dedication area needs to be shown on all details of the set of plans. Additionally, any required property setback shall be measured from the adjusted property line, post-alley dedication.

Show the required 2’-6” alley dedication area on all details of the set of plans, including on site plan, floor plans, and all sections and elevations provided. Adjust the location of the property lines adjacent to the required dedication areas accordingly.

7 9. Setbacks – Sheets A01 and A11 through A29
a. Front Setback – The applicable front yard setback for the project site is 15’-0”. As designed, portions of the proposed building located above ground level would encroach into the required setback.

As proposed, complete sections of the building on almost every floor level appear to encroach into the required front yard setback, with a seven-inch (7”) setback shown on the site plan provided on Sheet A11 of the set of plans. Such building encroachment is not permissible within the front yard setback area.

Revise the project to provide the applicable 15’-0” front setback for the project. b. Side Yard Setbacks – BHMC Section 10-3-2807 details the applicable side yard setbacks for properties located within the City’s R-4 Zone. Pursuant to this section, the development of a project with more than four (4) stories or greater than 45’ in height shall be subject to a cumulative setback of 23’-0’, with a minimum setback of at least 9’ required on one side. When a project is subject to a dedication of land required for improving and widening existing alleys adjacent to the project site, the required setback shall be measured from the adjusted property line post-alley dedication.

As proposed, complete sections of the building on most floor levels appear to encroach into the required side setback, with a 7’-0” side setback provided to the north and an 11’-0” side setback provided to the south. The 18’-0” cumulative setback does not appear to meet the applicable cumulative setback of 23’-0’ required for a project that exceeds four stories and 45’ in height.

Similarly, the 7’-0” setback shown on the north side does not appear to meet the minimum side setback required for properties in the R-4 zone. Revise the project to provide the required minimum and cumulative side yard setback.
c. Rear Setback – BHMC Section 10-3-2808 details the applicable rear yard setback for properties located within the City’s R-4 Zone. Pursuant to this section, a setback of 15’ is required for all new development in the R-4 zone. When a project is subject to a dedication of land required for improving and widening existing alleys adjacent to the project site, the required setback shall be measured from the adjusted property line post-alley dedication.

As proposed, sections of the building on several floor levels appear to encroach into the required rear setback, with a portion of the building designed with a 2’-6” rear from existing property lines.

Revise the project to provide the applicable 15’-0” rear yard setback to the project. d. Setbacks Throughout Plan Set - Show all applicable front, side, and rear setback lines on the site plan, floor plans, sections, and elevation on the set of plans. These details are missing from several sheets of the plan set.
e. Garage Encroachment in Front Setback – Pursuant to BHMC Section 10-3-2811, basement garages are allowed to encroach into the front yard setback area. However, as designed, the portion of the basement garage built into these setback areas needs to be 2'-0” lower than the grade of the adjacent

8 sidewalk. Additionally, that 2'-0” depression shall be used to provide planting areas within the front yard setback area.

As shown on Section 2 on Sheet A29, the portion of the basement garage within the front yard setback is currently designed to be at the same level as the adjacent sidewalk along South Linden Drive, which is not permissible. Revise the design of the basement garage that encroaches into the front yard setback area so that it is 2'-0” lower than the adjacent sidewalk along South Linden Drive. f. Modulation – BHMC Section 10-3-2806 details the applicable front modulation standards for properties located within the City’s R-4 Zone. In review of the set of plans provided, no details were included as to the amount of front building modulation provided for the project. As a separate exhibit to the set of plans, provide front modulation diagrams showing the required amount of modulation required and the modulation proposed for the project. Additionally, the diagrams shall show the depth of the modulation provided per floor and calculations for the aggregate principal building area.

Adjust the project design accordingly to provide the applicable front modulation for the project pursuant to BHMC Section 10-3-2806.

10. “NO BUILD ZONE” Area – Sheets A12 and A13
In reviewing the Fault Rupture Hazard Investigation dated October 7, 2020, previously prepared for the project site, several active earthquake faults were discovered on the properties at 125 and 129 S. Linden Drive. The “Structural Setback Plan” on Page 60 of the document establishes a “NO BUILD ZONE” where no portion of a habitable structure could be built.

Please show this no build zone area on the site plans and floor plans provided for the first floor and every subterranean level of the project to ensure that the proposed building does not encroach into the NO BUILD ZONE.

11. Front Yard Paving – Sheet A14
BHMC Section 10-3-2813 details the applicable front yard paving standards for properties located within the City’s R-4 Zone. Pursuant to this section, no portion of any front yard within the R-4 Zone shall be paved, except for not more than one walkway not exceeding five feet (5') in width and one driveway not exceeding the width of its curb cut. Based on the design provided on Sheet A14, the project includes a paved courtyard and walkway to the north side of the property. No driveway paving is proposed within the front yard setback area. Together, these walkways exceed the maximum allowable width for walkways located in the front yard setback area.

Revise the design of the paving proposed in the front yard setback area to include one (1) walkway that does not exceed 5’ in width. Additional walkways not exceeding 5’ in width may be permissible as detailed in BHMC Section 10-3-2813.

9 12. Site Walls and Fences – Sheet A11
Show all proposed site fences and walls on the site plan for the project. Provide additional details and sections on the set of plans showing the design and height of any proposed fences and walls. All site fences and walls shall be designed in conformance with the applicable fence/wall standards provided in BHMC Section 10-3-2814.

13. Parking – Sheets A01, A12 and A13
a. Residential Parking – BHMC Section 10-3-2816 details the applicable parking standards for properties located within the City’s R-4 Zone. Pursuant to this section, the project shall provide the following number of parking spaces per dwelling unit type:
• One (1) parking space shall be provided for each multiple-family dwelling unit that is an efficiency unit of less than one thousand (1,000) square feet. • Two (2) spaces shall be provided for each multiple-family dwelling unit that contains one bedroom.
• Two and one-half (2 ½) parking spaces shall be provided for each multiple-family dwelling unit that contains two (2) bedrooms.

In review of the set of plans, the residential portion of the project consists of 165 dwelling units with a mix of 13 studio, 59 one-bedroom, and 93 two-bedroom units. Based on the unit mix proposed, 364 parking spaces would be required for the 165 dwelling units proposed. The total number of required parking spaces will be confirmed once floor plans of the residential portion of the project are provided to confirm an accurate bedroom count. As the project is only designed with 127 parking spaces, the project does not conform to the applicable parking standards. As provided on the set of plans and application materials, this project is not a density bonus project and thus is not eligible for the reduced parking standards under state density bonus provisions.

Revise the project to provide the required number of parking spaces. b. Guest Parking – BHMC Section 10-3-2817 details the applicable parking standards for properties located within the City’s R-4 Zone. Pursuant to this section, guest parking shall be provided for the project at a ratio of 0.25 spaces/unit. As proposed, a project with 165 dwelling units would be subject to 42 guest parking spaces (41.25 rounded up to the nearest whole number).

Revise the project to provide the required number of guest parking spaces. Clearly call out which parking spaces for the project are being allocated for only guest parking. c. Hotel and Hotel Restaurant Parking – While previously noted that the hotel and hotel restaurant uses proposed for this project are not permissible within the R-4 Zone, should the applicant seek a Zone Change/General Plan Amendment to facilitate the proposed commercial uses, such uses shall be designed in compliance with the applicable parking requirements detailed in BHMC Section 10- 3-2730. Such parking shall be provided on-site.

10 Based on the plans provided, a 73-room hotel would require 73 parking spaces (1 space/room).

Additionally, the proposed 3,497 SF hotel restaurant would require 14 parking spaces (1 space/350 SF for first 3,000 SF – 1 space/100 SF for portion over 3,000 SF). However, 25% of the spaces required to be provided for the hotel may also be applied toward the hotel restaurant, which can provide a credit of approximately 19 parking spaces for hotel restaurant use.

As designed, the parking garage for the development does not currently provide any parking for the commercial uses of the project. Each space is labeled as “RES”, implying that the parking spaces are reserved for the residential uses of the project and not available to service the proposed hotel and hotel restaurant uses. Should the applicant seek a Zone Change/General Plan Amendment for consideration of this project, parking for the proposed hotel and hotel restaurant uses shall be provided on-site.
d. Parking Stall Dimensions – The City’s parking standards require all parking spaces provided for a project to be provided in standard configuration, with a minimum parking stall width of 9’-0” and a length of 19’-0”. Compact parking stall dimensions are not allowable for any required parking stall associated with the residential use of the property. However, pursuant to BHMC Section 10-3- 2727, the proposed hotel use may provide up to 25% of the required parking as compact parking stalls and through tandem spaces as part of a Conditional Use Permit.

In review of the set of plans, the subterranean parking structure includes compact parking stalls on each of the four levels for the residential uses, which is not permissible. No parking appears to be specifically provided for the commercial hotel and hotel restaurant uses proposed for the project.

Revise the design of the parking garage to include standard parking stalls with the minimum required stall width and length and remove compact stalls for the residential uses. Provide the required parking for the hotel and hotel restaurant uses. e. Parking Aisle Depth – The minimum aisle width required for parking spaces provided at a 90 degree angle is 26’-0” per the City’s parking standards. The drawings prepared for parking levels P1 - P4 show that a 24’-0” parking aisle is proposed where parking spaces are provided with a 90 degree turning angle.

Revise the design of the parking aisle width to provide the 26’-0” wide minimum aisle width. f. Garage Encroachment into Alley Dedication Area – As designed, the basement garage would encroach into the 2’-6” alley dedication area required along the north side and rear of the property.

The garage cannot encroach into the required alley dedication area. Revise the design of the parking garage so that no portions of the building encroach into the required alley dedication areas. g. Replacement Parking for 9740 Wilshire Blvd - The project site at 129 S. Linden Drive is currently improved with a surface parking lot that provides required parking for the commercial office building located at 9740 Wilshire Blvd. The original building plans for the commercial building at 9740 Wilshire Boulevard show that the surface parking lot at 129 S. Linden Drive was designed with

11 diagonal parking for 50 vehicles. To facilitate this, a parking covenant was filed with the city and recorded on August 12, 1957, against the properties at 9740 Wilshire Blvd and 129 S. Linden Drive to provide a portion of the required parking off-site. The use of the 129 South Linden Drive site for commercial parking purposes was approved through Variances issued by the City Council in 1941 and 1958 (City Council Resolution Nos. 1061 and 2841).

In review of the project, 126 parking spaces would be provided for the residential portion of the project. No parking is specifically provided for on the set of plans for the proposed the hotel and hotel restaurant uses. Additionally, the plans for the project and the application materials do not address how the required covenanted parking for 9740 Wilshire Blvd would be replaced.

However, Pursuant to BHMC Section 10-3-2737, it is not permissible to locate parking required for a commercial use or commercial property on a site that is zoned for residential land uses. As it pertains to the replacement parking for 9740 Wilshire, the replacement parking would either need to be provided on an alternative site zoned for commercial uses, or the applicant would need to seek a code amendment to allow for replacement of the required parking within this new development. As previously noted, in addition to the parking required for the proposed project, a total of 50 parking spaces will need to be provided as replacement parking for the 9740 Wilshire site because the new development is proposing the removal of the existing covenanted parking required for the development on that property.

14. Loading – Sheets A06 and A14
a. Number of Loading Spaces Required – BHMC Sections 10-3-2740 thought 10-3-2743 detail the applicable loading space requirements. Based on the area schedule provided on Sheet A06, approximately 48,034 SF of floor area is proposed for use as hotel and hotel restaurant on the first and second floors. Pursuant to BHMC Section 10-3-2741, the number of loading spaces required for the proposed commercial floor area is three (3) truck spaces. Each truck loading space shall have a minimum length of 35’, width of 12’, and overhead clearance of 10’.

As proposed on Sheet A14, the project is designed with what appears to be one (1) loading space accessed from the alley that is 12’ wide by 30’ long. This single loading space provided does not appear to comply with the number of loading spaces required for the project or the minimum dimensions required for a truck loading space.

12 c. Location of Loading Spaces – Pursuant to BHMC Section 10-3-2742, when a project site or structure abuts an alley, access to loading spaces shall be provided from the alley. Alley accessed loading spaces shall be parallel to the alley unless the project applicant establishes one of the following:
• Site constraints preclude construction of a parallel loading space or spaces; or, • The alternative loading space configuration proposed by the project applicant meets the functional requirements of the code.

As currently designed, the loading space provided on Sheet A14, is perpendicular to the alley instead of parallel to it. Revise the project to include the required loading spaces in compliance with BHMC Section 10-3-2742. If this cannot be achieved and the applicant is seeking an alternative configuration, provide findings as noted above detailing site constraints and how the alternative loading space will meet the functional requirements of the code. d. Maneuvering – Pursuant to BHMC Section 10-3-2740, loading spaces shall be directly accessible for the distribution of goods within the structure or use. For multi-story structures, such access shall be direct to an elevator or stairway serving all stories, and in this case, all stories of the hotel and hotel restaurant. In order to meet the functional requirements, loading spaces shall have a minimum maneuvering area as specified in the MINIMUM STANDARDS FOR LOADING SPACES table in BHMC Section 10-3-2740. Said maneuvering area shall be contiguous to the end of the loading space and may include the width of the alley or street.

Provide maneuvering diagrams showing truck ingress and egress to the loading spaces provided for the project.

15. Survey – Sheet A10
a. Scale of Plan – In review of the survey provided on Sheet A10, the drawing does not appear to match the scale noted on the plan sheet. When several site features with dimensions are measured at the noted scale (1” = 10’), the dimensions scale out to less than what are noted on the survey. Provide a survey that is drawn to the scale noted on the plan sheet. b. Survey Legibility – The survey provided appears to be scanned from an original of that document and placed on the set of plans. As such, the details and dimensions provided are pixelated and not very legible. Provide a survey that is clear, legible, and not pixelated. c. Surveyor’s License Expiration – The survey provided notes that the surveyor’s license expired on 12/31/2020. Provide an updated survey with an updated expiration date of the surveyor of record.

16. Title Report – Sheet A10
Provide a Title Report of the project site to verify whether any easements exist on the properties at 125 and 129 S. Linden Drive. The survey provided on Sheet A10 notes that there are no easements on the

13 project site, “per referenced preliminary title report.” However, a copy of this title property was not provided. Provide a title report of the project site with project resubmittal.

17. Elevations and Renderings – Sheets A00, A02, A03, A04, A24, A25, A26, and A27 Revise the elevations and renderings provided for the project, as required, to address the corrections and comments provided in this review letter and the redlined set of plans.

18. Floor Plan Layouts for Dwelling Units – Sheets A16 through A23 Provide floor plans layouts for each of the proposed dwelling units in the project. The floor plans provided only have a call out to the number of bedrooms in each unit, but the layout of each unit is not provided. The floor plans shall show the proposed kitchen, bathroom, bedroom, and living area of each of the proposed dwelling units.

19. Rubbish Storage – Sheet A14
BHMC Section 9-3-1 details the applicable rubbish storage standards for residential and commercial development. As proposed, the project would include a 592 SF trash room located in the first floor of the building, adjacent to the alley at the rear. However, calculations were not provided on the set of plans or in the application materials to demonstrate that the proposed trash room is of sufficient size to accommodate the anticipated demand for waste generated by the project site.

Provide calculations pursuant to BHMC Section 9-3-1 showing the anticipated amount of rubbish that would be generated by the project and the size of the rubbish/trash room needed to accommodate the projected waste quantities that would be generated by the project.

20. Landscape Plans – Not Provided
Provide landscape plans of the proposed project with resubmittal. The landscape plans shall show all proposed landscaping improvements on the project site and in the public right-of-way.

21. Environmental Review
Once all major corrections have been addressed and complete applications have been submitted, the City will review the proposal to determine what review may be required pursuant to the California Environmental Quality Act (CEQA). The applicant will be responsible for paying the the costs for the preparation of any required environmental document, including but not limited to the costs of any consultants as may need to be retained by the City.

22. Low Impact Development (LID)
Pursuant to BHMC Section 9-4-508, the City’s Low Impact Development (LID) requirements are applicable to new developments projects.

As you progress with the design of the project, review the applicable LID requirements and incorporate them into your project and set of plans. This will ensure that the project, as designed, can accommodate the required LID provisions early on and will reduce or eliminate any changes needed once the project is submitted for building plan check.

14 A copy of the Low Impact Development (LID) Fact Sheet is available for download from the City’s website using the following link:
http://www.beverlyhills.org/cbhfiles/storage/files/1266023136723167408/ChecklistforLIDRequiremen tsFINAL(6).pdf
For question related to LID requirements, please contact Trevor Alsop at 310-288-2837 or by email at [email protected].

23. Shade and Shadow Study
Provide a shade and shadow study for the proposed project. Diagram the shadows from the proposed structure during the winter and summer equinoxes, from 6:00 A.M. to 9:00 P.M., at three-hour intervals. The study shall show adjacent properties and the projected shadow on those properties during the noted intervals.

24. Rooftop Operations Plan
Provide the following information for all enclosed and unenclosed rooftop areas proposed:
• Indicate the types of uses proposed for all enclosed and unenclosed rooftop areas. • Indicate the proposed hours of operation of all enclosed and unenclosed rooftop areas. • Indicate whether the rooftop area will be used exclusively by the residential portion of the project or if hotel rooftop access will be provided.
• If the hotel will have access to the rooftop, indicate the type, frequency (yearly, monthly, daily, etc.) of rooftop events, appointments, etc.
• If the hotel will have access to the rooftop, indicate maximum occupancy anticipated for each type of event.

25. Arborist Report
Provide an Arborist Report detailing all existing trees located within adjacent public right-of-way along South Linden Drive. The arborist report shall also detail all proposed removal and/or installation of new trees in the public right-of-way.

26. Transportation/Traffic Studies
Pursuant to the City’s Local Transportation Assessment Guidelines adopted by Planning Commission Resolution No. 1901, the following transportation/traffic studies are required:
a. Transportation Impact Analysis – Based on the City’s screening criteria, the project does not appear to be screened out from providing a Transportation Impact Analysis. Please provide a Transportation Impact Analysis that evaluates potential Vehicle Miles Traveled (VMT)-related impacts associated with the proposed Project.
b. Local Transportation Assessment – For projects that generate over 75 peak hour trips, a local transportation assessment/traffic study shall be required using Level of Service (LOS) metric to evaluate signalized and unsignalized intersection operation and use the percentage increase in

15 traffic volumes to evaluate impacts on local residential streets. Analyzed locations should primarily consist of major signalized intersections that are likely to be affected by the project. Additionally, the study area should also look at roadways providing access to the project site, such as the roadway(s) containing the project’s primary driveway or secondary access point, or the intersection(s) immediately adjacent to the project site along with the surrounding area. Such report shall be prepared by the applicant and submitted to the City for review and comment by the City’s Traffic Engineer.

27. Transportation and Trip Reduction Measures
Pursuant to BHMC Section 10-7-301, the applicant is required to incorporate various measures to provide for transportation demand management and trip reduction. As the project appears to provide more than 50,000 SF of gross floor area for commercial uses, the applicant shall incorporate all required measures into this project, which includes but is not limited to, providing bicycle parking, spaces reserved for vanpool, and information on rideshare and public transit opportunities.

Revise the project to incorporate the applicable transportation and trip reduction measures accordingly.

28. Geotechnical/Soils Report
Provide a geotechnical/soils report for the project and project site. The geotechnical/soils report shall evaluate the proposed project and provide recommendations for the construction of the proposed building based on existing soil conditions. The report should also address the site-specific fault issues and constraints.

29. Construction Management Plan
Provide a construction management plan that provides relevant project construction details, including but not limited to:
• Anticipated timelines for the different construction phases of the project (e.g., demolition, grading, shoring and excavation, construction of the basement, foundations, and above grade work).
• Proposed locations for the staging of construction materials and equipment. • Anticipated closures of any right-of-way area (alley/street) and timelines for such closures.

30. Noise Study
Provide a noise study of the project to evaluate projected construction noise and noise levels anticipated post-construction with the proposed rooftop outdoor living space uses.

16 construction, and maintenance activities occurring within 100 feet from Metro right-of-way (ROW) and other real estate assets.

For information on how to request and obtain Metro Adjacent Development Review, please contact Metro’s Development Review Team at (213) 418-3484 or by email at [email protected]. Additional information can be obtained by visiting https://www.metro.net/about/adjacent-development-review/.

32. Public Works Stormwater/Environmental Compliance/Sustainability Comments Below are Stormwater/ Environmental Compliance/ Sustainability comments provided by the Public Works Department:
• Project to use available 100% renewable energy from local utilities. • Sewer system capacity requirement. Require hydraulic modeling to assess sewer capacity issues for the development. Improvement to wastewater system if it impacts sewer system flow. • If permanent dewatering system is needed, design the project to re-use groundwater for nonpotable water systems as required pursuant to BHMC Section 9-4-610.B.2. All ground water discharges must have a permit (NPDES) from the Regional Water Quality Control Board and may require a permit from the City of Beverly Hills.
• Appropriate number of approved Meter Service Protection backflow prevention assemblies for Domestic, Irrigation and Fire Meters required.
• Must implement Low Impact Development (LID) meeting requirements of LID ordinance to mitigate stormwater runoff.
• The applicant is required to install a grease interceptor for food service establishment use.

Grease interceptor design shall meet the Los Angeles County Public Works Industrial Waste Program requirements. Placement should be accessible for maintenance operation. • Water discharged from a loading dock and trash enclosure shall be directed through grit/oil separator. A loading dock is not to be confused with a loading zone or designated parking space for loading and unloading.
• Organic residuals from daily operations and water used to wash trash rooms cannot be discharged to surface public right of way.
• Condensate from HVAC and refrigeration equipment shall drain to the sanitary sewer, not curb drains.

For questions regarding these comments, please contact Trevor Alsop, Environmental Compliance Inspector, at (310) 288-2837 or by email at [email protected].

33. Building and Safety – Building and Technical Code Comments Below are comments provided by Building and Safety regarding compliance with applicable building and technical codes:
• These comments reflect high-level conceptual review comments. Complete code compliance review will be forthcoming upon plan check submittal.
• The review comments are in accordance with 2022 California Building Code and its references.

17 • General contractor must submit Construction Management Plan for review and approval prior to any building permit issuance. The plan needs to address how to the building to be built including demolition, excavation, shoring, access to site for ingress and egress, haul route, tower crane if needed, pedestrian protection, sanitary facilities, a temporary or permanent stairway, standpipe, fire watch during construction, traffic control plan (will be reviewed by Public Works), etc. Refer to California Building Code (CBC) Chapter 33. • The project to comply with requirements of Beverly Hills Municipal Code, Title 10 and Chapter 6, STREET, ALLEY, AND HIGHWAY DEDICATIONS AND IMPROVEMENTS. • Survey map is required to show all easements on the properties. • Comply with the City’s applicable parking standards.
https://www.beverlyhills.org/cbhfiles/storage/files/563485925821755963/ParkingStandards(R EV2.18).pdf
• The project requires LID (Low Impact Development) plan check. • On site plan, confirm the location of seismic fault line with dimensions per the seismic fault investigation report.
• Provide complete Fire department and vehicle access.
• Hotel will be classified as R-1 occupancy. CBC 310.
• The project is required to be designed in compliance with requirements of CBC 403, High-rise building and CBC 405, Underground Building.
• The project is required to provide separate accessible parking requirements per CBC 11A and CBC 11B for residential and nonresidential, respectively. Additionally, the project shall provide accessible and standard EV charging parking spaces. Show the location of these required EV parking spaces in the proposed garage.
• The project shall comply with both residential and nonresidential requirements of California Green Building Standards Code in accordance with Beverly Hills Municipal Code, Title 9, Chapter 2 and Article 11.
• The project is required to fully comply with California Energy Code. • The project is required fully comply with accessibility provisions of CBC 11A and CBC 11B for residential and nonresidential, respectively.
• The hotel shall be designed in compliance with CBC 11B-224. • The project building shall be designed in compliance with requirements of CBC 705.5 and CBC 705.8.
• The project shall fully comply with requirements of CBC Chapter 10. No exiting analysis was provided.
• The project shall comply with accessible means of egress requirements per CBC 1009. • The enclosed parking structure shall be designed in compliance with CBC 406.

For questions regarding these comments, please contact Ocean Kwon, Senior Plan Review Engineer, at (310) 285-1153 or by email at [email protected].

18 34. Building and Safety – Right of Way Comments
Below are comments provided by Building and Safety regarding areas in the public right-of-way:
• Provide a water demand study to evaluate anticipated water demand for project and for the City to evaluate the types of upgrades and improvements that will be necessary to existing infrastructure.
• Obtain will serve letter from the Public Works Water Division. • Coordinate with Edison to evaluate necessary upgrades to existing infrastructure to facilitate the project and provide the City a proposal of all upgrades required to provide service to the project.
• Provide a Construction Management Plan with a narrative detailing the types of temporary encroachments that the project would require during project construction. Based on the proposal, the project would require working areas for the staging and storage of construction materials, equipment, crane(s), trailers, deliveries, and for a laydown area for transport and maneuvering of vehicles.
• Provide a plan showing the proposed haul routes and delivery route to the project site. To limit construction impacts to residential properties within the vicinity of the project site, all construction-generated traffic should provide ingress and egress to and from the project site directly to Wilshire Boulevard.

For questions regarding these comments, please contact Ara Retchian, Senior Plan Review Engineer, at (310) 285-1106 or by email at [email protected].

35. Fire Department Comments
Below are comments provided by the City’s Fire Department:
• The project shall be designed in compliance with all applicable California Fire Code (CFC) and California Building Code (CBC) requirements for high rise buildings. Although these are preliminary drawings, all applicable high rise requirements shall be considered and incorporated into the project during the design process.

For questions regarding these comments, please contact Cecilia Sohn, Plan Check Inspector, at (310) 281-2716 or by email at [email protected].

36. Responses to Corrections Required
On a separate sheet, provide a detailed response to each correction noted in this letter clarifying how each correction was addressed. Submit this response letter when resubmitting your project.

37. Additional Corrections
Based on the responses to this incomplete letter and changes to the project plans, additional corrections may result from the review of the revised project.

19 38. Additional Comments
See redlined set of plans for additional comments.

In order for staff to continue processing the case, the foregoing list of corrections must be addressed on a resubmittal of plans and/or application materials, and additional entitlement applications. Before resubmitting your project to the Planning Division, please ensure that all corrections have been addressed and that each correction has been initialed as acknowledged by the architect team.

Once the items above have been addressed and submitted, the application will once again be assessed for completeness. In your response resubmittal, please provide a copy of this letter.

Should you have any questions regarding the above comments, please feel free to call me at (310) 285-1138, or by email at [email protected].

Sincerely,
_________________________________
Edgar Arroyo, Senior Planner
ATTACHMENT 3
Applicant’s Response to 1st Round
Incomplete Determination
Dated August 9, 2024
(w/o Attachments)
633 West Fifth Street
64th Floor
Los Angeles, CA 90071
213.557.7222
www.rpnllp.com
Dave Rand
213.557.7224
[email protected]
August 9, 2023

VIA EMAIL
Edgar Arroyo, Senior Planner
Community Development Department
Planning Division
City of Beverly Hills
455 N. Rexford Drive
Beverly Hills, CA 90210

Re: Response to Deemed Incomplete Letter
125 – 129 South Linden Drive – Development Plan Review (PL2300126) Dear Mr. Arroyo,
We are submitting this transmittal on behalf of 9300 Wilshire, LLC (the “Applicant”) in connection with the Development Plan Review application (“DPR Application”) for the proposed mixed use project at 125-129 South Linden Drive (“Site”), assigned case number PL2300126 (the “Project” or “DPR Project”). This transmittal, consisting of this letter and the associated attachments, serves as the Applicant’s formal written response to the letter issued by the City of Beverly Hills (“City”) on May 12, 2023, which stated that the DPR Application had been deemed incomplete (the “Deemed Incomplete Letter”). This transmittal is being sent to the City within 90 days of the date of the Deemed Incomplete Letter, in conformance with Government Code Section 65941.1(d)(2).

As set forth in Attachment B, detailed written responses to each of the Deemed Incomplete Letter’s 38 comments are being provided to the City, and Attachments C through G comprise all of the specific information identified as outstanding by the Deemed Incomplete Letter and needed to complete the DPR Application. In addition, this letter provides the Applicant’s responses to the Deemed Incomplete Letter’s assertions that 1) the Project’s previously established vested rights have been lost, and 2) that additional entitlement approvals, including a General Plan amendment and zone change, are required to permit the Project. As described below, both of these assertions are erroneous, and reflect the City’s misunderstanding of State law requirements established by the vesting provisions of the Housing Crisis Act of 2019 (“SB 330”),1 the “Builders Remedy” provision of the State Housing Accountability Act (“HAA”),
2 and the Permit Streamlining Act (“PSA”).3
Following its receipt of this timely
1 Government Code Section 65941.1.
2 Government Code Section 65589.5(d)(5).
3 Government Code Section 65943(a).

Edgar Arroyo
August 9, 2023

Page 2 ends

transmittal, the City is obligated under State law to continue to process the Project’s DPR Application as filed.

I. The Project Enjoys Vested Rights Pursuant to SB 330.

As acknowledged by the Deemed Incomplete Letter, on October 21, 2022, pursuant to Government Code Section 65941.1, the Applicant submitted a preliminary application (“PA”) to the City, which described the proposed Project as a 16-story, 200-unit development project (40 units [20 percent] of which would be deed restricted to lower income households) containing 259,547 square feet (“PA Project”), and on October 24, 2022, the City received the Applicant’s fee payment associated with the PA submittal, thereby establishing vested rights under the ordinances, policies, and standards adopted and in effect as of October 24, 2022.

On April 24, 2023, the Applicant filed the DPR Application with the City for the DPR Project, which is a proposed 19-story mixed use, multifamily residential and hotel building, with 165 rental apartment units (including 33 affordable housing units) and ancillary residential spaces, 73 hotel rooms and ancillary hotel spaces including a restaurant use. The DPR Application was submitted within the 180- day period following the submittal of the PA, as prescribed by Government Code Section 65941.1(d)(1).

Accordingly, the Project’s October 24, 2022 vesting date was maintained.

However, as noted above, the Deemed Incomplete Letter asserts that the Project no longer possesses vested rights due to the Applicant’s modifications to the PA Project, including the introduction of a hotel use. To support this claim, the City cites language from Government Code Section 65941.1(a)(4), which specifies that a PA is required to provide information regarding “the proposed land uses” included in a development project. By the City’s logic, because the DPR Project contains additional land uses (i.e., hotel and restaurant uses) as compared to the PA Project, the PA no longer has any vesting effect. This represents an entirely incorrect reading of SB 330’s statutory provisions by the City.

The City’s claim that the PA and its vesting protections are no longer in effect because new land uses were introduced for the DPR Project is without merit, as the language of Government Code Section 65941.1(a)(4) is not relevant to any determination regarding a loss of vesting. Instead, the solely relevant statutory language regarding changes to a project description contained in a PA that forfeit vested rights is provided by Government Code Section 65941.1(c), which states:
“After submittal of all of the information required by subdivision (a), if the development proponent revises the project such that the number of residential units or square footage of construction changes by 20 percent or more, exclusive of any increase resulting from the receipt of a density bonus, incentive, concession, waiver, or similar provision, the housing development project shall not be deemed to have submitted a preliminary application that satisfies this section until the development proponent resubmits the information required by subdivision (a) so that it reflects the revisions. For purposes of this subdivision, “square footage of construction” means the building area, as defined by the California Building Standards Code (Title 24 of the California Code of Regulations).4
(Emphasis added).
4 Government Code Section 65941.1(c).

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The PA Project consisted of a residential project that included 200 dwelling units within a 259,547 square foot, 16-story building. The DPR Project consists of a mixed-use development that includes 165 dwelling units and a 73-room hotel and hotel restaurant within a 311,197 square foot, 19- story building. The number of residential units was reduced from 200 in the PA Project to 165 in the DPR Project (a 17.5 percent decrease), and the square footage of construction was increased from 259,547 square feet in the PA Project to 311,197 square feet in the DPR Project (a 19.9 percent increase). These revisions are within the 20 percent threshold set forth in Government Code Section 65941.1, and do not require the Applicant to resubmit information required by Section 65941.1(a). Therefore, the vesting protections established by the PA continue to apply to the Project.

II. The Builder’s Remedy Provision of the HAA Applies to the Project.

As you know, the City’s Housing Element is currently out of compliance with State Housing Element law requirements.
5 Under the Builder’s Remedy provision of the HAA, if a jurisdiction lacks a substantially compliant Housing Element, it cannot use its objective general plan, specific plan or zoning regulations to deny or render infeasible an affordable housing development project (i.e., a housing development project that provides at least 20 percent of the total units to lower income households, as defined by Health and Safety Code Section 50079.5). The Project is a 165-unit mixed-use development with 20 percent of the units (33 units) affordable to lower income households. Because the residential portion equates to approximately 77 percent of the Project, the Project qualifies as a “housing development project” under the HAA.
6 The DRP Application explicitly states that the Project is proposed pursuant to the Builder’s Remedy provision of the HAA, as the City lacked a substantially compliant Housing Element at the time of the PA. Furthermore, the Project retains vesting rights under the ordinances, policies, and standards adopted and in effect at the time the PA was submitted on October 24, 2022; these vested ordinances, policies and standards include the City’s noncompliant Housing Element status, as confirmed by HCD. 7 Therefore, the City cannot escape its obligation to process the Project pursuant to the mandates of the HAA and the Builder’s Remedy.

Furthermore, since the Applicant’s submittal of the DPR Application, HCD has clarified that a jurisdiction does not have the authority to determine that its adopted Housing Element is in substantial compliance (e.g., a jurisdiction cannot “self-certify”). Specifically, HCD’s March 16, 2023 Memorandum titled “Summary and Clarification of Requirements for Housing Element Compliance” clearly states that:
[A] jurisdiction is “in compliance” as of the date of HCD’s letter finding the adopted element in substantial compliance. Any other letters are not a finding of substantial compliance. 5 In a letter to the City dated May 12, 2023, the State’s Department of Housing and Community Development (“HCD”) found that the City’s 6th Cycle Adopted Housing Element, adopted February 21, 2023, does not substantially comply with State Housing Element law. HCD’s May 12, 2023 letter also stated that “[b]y no means was the City’s prior submittal [adopted October 15, 2021] in substantial compliance with State Housing Law,” and the “City’s findings as part of the adoption are inadequate to demonstrate substantial compliance with statutory requirements; therefore, revisions to the element continue to be necessary to substantially comply with State Housing Element Law.”
6 Government Code Section 65589.5(h)(2)(B). 7 HCD Letter of Technical Assistance Letter to Rand Paster & Nelson LLP, dated October 5, 2022.

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However, notwithstanding the City’s indisputably noncompliant status, the City has chosen to ignore its obligations under the Builder’s Remedy. Specifically, the Deemed Incomplete Letter states that the Project requires a General Plan Amendment, Zone Change, and possibly other entitlements because the DPR Project does not “conform to the City’s General Plan and various provisions of the City’s zoning code.” The Deemed Incomplete Letter goes on to identify use limitations, height limitations, and maximum permitted density limitations, and other standards to which the Project would need to adhere. However, as the City knows, under the Builder’s Remedy, a City cannot use its objective general plan, specific plan or zoning regulations to deny or render infeasible an affordable housing development project. The standards the City cites as noncompliant in the Deemed Incomplete Letter are, by definition, the “objective general plan, specific plan or zoning regulations” that cannot be used to deny or render infeasible an affordable housing project such as the Project.

HCD has also provided guidance directly addressing this topic in its June 8, 2023 letter to the City of La Cañada Flintridge, stating:

Government Code section 65589.5, subdivision (d)(5), allows a local agency to disapprove an affordable housing project that ‘is inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation as specified in any element of the general plan’ if ‘the jurisdiction has adopted a revised housing element … that is in substantial compliance….’ HCD then goes on to explicitly clarify:

If HCD does not find a local jurisdiction’s adopted housing element in substantial compliance by the statutory deadline, the jurisdiction cannot use subdivision (d)(5) of Government Code section 65589.5 (inconsistency with zoning and general plan standards) as a basis to deny a qualifying affordable housing project.

Therefore, based on the provisions of the Builder’s Remedy itself as well as recent HCD guidance the City cannot use inconsistency with zoning and general plan standards to deny or render infeasible the Project as currently proposed.

III. A Second Prong of the Builder’s Remedy Also Applies to the Project.

As detailed above, neither the Applicant nor HCD agree with the City’s claim that its Housing Element somehow substantially complies with State Housing Element law. Nevertheless, and assuming only for the sake of argument that any “self-certification” argument advanced by the City to claim that its Housing Element somehow could be considered in substantial compliance because it has satisfied the bare minimum legal criteria required under State Housing Element law, the City’s required Suitable Sites Inventory (“SSI”) of sites that can accommodate the City’s Regional Housing Needs Allocation (“RHNA”) remains severely deficient. This deficiency alone disqualifies the City from rejecting the Project.

Specifically, Government Code Section 65589.5(d)(5)(B) limits a local agency’s ability to deny General Plan/zoning noncompliant housing projects – even if the local agency arguably has a substantially compliant Housing Element – if the local agency has failed to adequately meet and plan for its 6th Cycle RHNA requirements. Section 65589.5(d)(5)(B) states:

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(d) A local agency shall not disapprove a housing development project, including farmworker housing as defined in subdivision (h) of Section 50199.7 of the Health and Safety Code, for very low, low-, or moderate-income households, or an emergency shelter, or condition approval in a manner that renders the housing development project infeasible for development for the use of very low, low-, or moderate-income households, or an emergency shelter, including through the use of design review standards, unless it makes written findings, based upon a preponderance of the evidence in the record, as to one of the following
(5) The housing development project or emergency shelter is inconsistent 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, and the jurisdiction adopted a revised housing element in accordance with Section 65588 that is in substantial compliance with this article. For purposes of this section, a change to the zoning ordinance or general plan land use designation subsequent to the date the application was deemed complete shall not constitute a valid basis to disapprove or condition approval of the housing development project or emergency shelter.
(B) If the local agency has failed to identify in the inventory of land in its housing element sites that can be developed for housing within the planning period and are sufficient to provide for the jurisdiction's share of the regional housing need for all income levels pursuant to Section 65584, then this paragraph shall not be utilized to disapprove or conditionally approve a housing development project proposed for a site designated in any element of the general plan for residential uses or designated in any element of the general plan for commercial uses if residential uses are permitted or conditionally permitted within commercial designations. In any action in court, the burden of proof shall be on the local agency to show that its housing element does identify adequate sites with appropriate zoning and development standards and with services and facilities to accommodate the local agency's share of the regional housing need for the very low, low-, and moderate-income categories. (Emphasis added.)
The Site is designated for High Density Multi-Family Residential uses under the City’s General Plan Land Use Element, and 20 percent of the Project’s 165 units (i.e., 33 units) would be set aside for Low Income households. It is also abundantly clear that the City cannot meet its burden to demonstrate an adequate SSI. The City’s proposed SSI continues to rely on sites that are widely unrealistic locations for future residential development, including sites that have virtually no potential to be redeveloped for housing in the next eight years.
8 HCD has repeatedly communicated these concerns to the City: for example, HCD’s January 14, 2022 comment letter to the City specifically calls out the City’s SSI, stating “the element does not provide sufficient analysis to demonstrate existing uses will discontinue in the 8 City of Beverly Hills, Adopted Amended Housing Element 2021-2029 (Feb. 21, 2023), Exhibit A: Table C-3 Sites Inventory.

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planning period, analyze existing leases or contracts that would prevent redevelopment of sites, or provide evidence of the City’s past experience with converting existing uses to higher density residential development.” Similarly, HCD’s November 28, 2022 comment letter again highlights the City’s inadequate analysis of the suitability of nonvacant sites, stating that the City “must still support the potential for additional residential development on the sites remaining in the inventory. This is especially significant given that the sites inventory includes parcels that seem to have viable businesses including medical uses, Class A and B office buildings, and stores including a Starbucks, Neiman Marcus, and CVS with little to no analysis on the likelihood of these uses discontinuing during the planning period.” However, the City has ignored HCD’s comments by continuing to rely on sites occupied by viable commercial businesses and medical uses without the required evidence to support the inclusion of these sites on the SSI.

If these deficient sites were removed from the SSI, the City’s income category totals would be reduced by hundreds of units and would not come close to satisfying the City’s RHNA allocation of 1,688 lower income units. As a result, instead of the current SSI’s claimed 10-unit surplus of lower income units, the City would in fact have a significant deficit for this income category. Thus, the City cannot meet its legal burden under Government Code Section 65589.5(d)(5)(B) to demonstrate an adequate SSI as a basis to deny the Project.

HCD has confirmed the applicability of this second Builder’s Remedy prong to the Project. On June 20, 2023, HCD issued technical guidance in response to a request from our firm confirming that:

The requirement for an adequate sites inventory under subdivision (d)(5)(B) is an additional limitation on the utilization of Government Code section 65589.5, subdivision (d)(5), to support a denial under the Housing Accountability Act. Specifically, if the City has failed to identify adequate sites to provide for the RHNA for all income levels, then Government Code section 65589.5, subdivision (d)(5) cannot be used to disapprove or conditionally approve a housing development project proposed for a site designated in any element of the general plan for residential uses or designated in any element of the general plan for commercial uses if residential uses are permitted or conditionally permitted within commercial designations.

Please note that HCD’s May 12, 2023, review of the housing element found that the City did not demonstrate an adequate sites inventory to meet its RHNA obligation because of its incomplete analysis demonstrating the adequacy of its realistic capacity methodology, the unsuitability of nonvacant sites, and its calculations of accessory dwelling units. (Emphasis added).

With this guidance, HCD has confirmed that even if a court of law could somehow determine, over HCD’s repeated non-compliance determinations and a large body of evidence to the contrary, that the City somehow has adopted a substantially compliant Housing Element, Government Code Section 65589.5 (d)(5)(B) would still compel approval of the Project based on the City’s inability to meet its burden to demonstrate an adequate SSI.

IV. The Deemed Incomplete Letter Constitutes a Violation of the PSA.

As described above, the Deemed Incomplete Letter claims that the DPR Application is incomplete because the Project was inconsistent with General Plan and zoning standards. However, as HCD explained in its June 8, 2023 guidance letter to the City of La Cañada Flintridge, inconsistency with Edgar Arroyo
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local zoning standards is a reason to deny an application in some circumstances (absent application of the Builder’s Remedy), but it is not a basis for deeming an application incomplete. Therefore, in addition to the clear SB 330 and HAA violations cited above, the Deemed Incomplete Letter also conflicts with Section 65943 (a) of the PSA.

V. The City’s Actions Are Placing It at Legal Risk.

California courts are enforcing the applicability of the Builder’s Remedy in noncompliant jurisdictions. Recently, the Los Angeles County Superior Court in Californians for Homeownership v. City of La Cañada Flintridge (July 10, 2023, Case No. 23STCP00699) held that the Builder’s Remedy is a legitimate remedial penalty for cities that lack a legally compliant Housing Element. The court further noted that declaratory relief to determine the applicability of the Builder’s Remedy is a proper remedy for affordable housing development proponents in jurisdictions lacking a compliant Housing Element.

The cities of La Cañada Flintridge and Beverly Hills have taken a strikingly similar approach to Housing Element compliance. Both jurisdictions have failed to adopt substantially compliant Housing Elements and obtain HCD’s certification prior to the statutory deadline. Both cities have consistently refused to take meaningful action to meet their State mandated housing requirements and have instead embraced a policy of wishful thinking by self-declaring – without proper legal support or backup – that their Housing Elements are somehow compliant notwithstanding HCD’s refusal to certify. And both cities have chosen to completely ignore the HAA’s clear penalties for noncompliance by refusing to properly process timely filed Builder’s Remedy project applications. The Superior Court’s message to La Cañada Flintridge in Californians for Homeownership is directly applicable to the City and its failure to process the Project pursuant to the Builder’s Remedy:

The HAA contains builder’s remedy that limits a city’s ability to deny a development for low-cost housing unless it has a substantially compliant housing element. §65589.5(d)(1), (d)(5). These penalties make all the difference in interpreting section 65583’s [Housing Element law] deadlines, which are now mandatory and not directory. (Tentative Ruling, 7-10-23, p.24).

V. Conclusion.

The Project’s DPR application is the appropriate mechanism for the City to review the Project pursuant to the Builder’s Remedy provisions of the HAA. General Plan Amendments and/or Zone Changes may not be legally required.

However, notwithstanding the above we emphasize that the Project materials have been modified in response to other comments noted in the City’s Deemed Incomplete Letter. Specifically, the Applicant revised the Project plans to provide additional information, dimensions, and/or illustrations in response to the City’s requests. The attachments provided with this submittal clearly indicate which objective general plan, specific plan or zoning regulations are not applicable to the Project. Additional application materials and studies have also been provided in response to the Deemed Incomplete Letter. As noted in the Deemed Incomplete Letter, we would expect the City to continue with its review and as a next step determine what type of environmental review should be required pursuant to the California Environmental Quality Act. The Applicant will provide additional materials and studies as determined to be appropriate at that time.

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Please contact us with any questions about this transmittal. Thank you.

Sincerely,
Dave Rand
Dave Rand
Partner
of RAND PASTER & NELSON, LLP
Attachments
A – HCD Letters and Memorandums
B – Written Responses to Deemed Incomplete Letter Comments C – Revised Project Plans including Survey and Landscape D – Title Report
E – Transportation Assessment
F – Geotechnical Report
G – Construction Management Plan Draft
ATTACHMENT 4
October 13, 2023
Incomplete Determination
(2nd Round)
1 Edgar Arroyo, Senior Planner
Community Development Department
SENT VIA EMAIL October 13, 2023
Dave Rand
Rand Paster & Nelson LLP
633 W. Fifth Street, 64th Floor
Los Angeles, CA 90071
[email protected]
RE: 125 – 129 South Linden Drive – Development Plan Review for Mixed Use Development (PL2300126) Dear Mr. Rand:

Staff has reviewed your application and materials for the Development Plan Review resubmittal received on September 15, 2023,
1 for September 15, 2023, for the proposed construction of a new mixed-use development at 125-129 South Linden Drive. The subject properties are located in the City’s R-4, Multiple Residential Zone, and High Density Multi-family residential General Plan land use designation. At this time, the application has been deemed incomplete for the reasons set forth below, and the previously filed Preliminary Application relating to the project site is deemed to be of no further effect due to changes in the project. Further, additional applications for amendments to the City’s General Plan and zoning ordinances are required to enable processing of the proposed project.

1. Preliminary Application
As part of the resubmittal received on September 15, 2023, the materials included a response letter dated August 9, 2023 with Attachment B, which includes written responses to the incomplete letter issued by the City. Attachment B included the following response to this correction:
“Per the explanation provided in the cover letter, the responses to the remaining comments reject the need to apply for additional entitlements or to comply with any provisions of the General Plan or zoning code (BHMC Title 10).”
1 Please note that the submittal attempt on August 9, 2023, was not received by the City until September 15, 2023, because the information apparently was caught by the City’s email security filter system. The City only became aware that a submittal attempt was made upon receipt of the September 15, 2023 letter asserting that the application was deemed complete by operation of law. In light of those facts, the City has concluded that the 30-day period to review the resubmitted information began no earlier than September 15, 2023, and that the application is not and was not deemed complete by operation of law. Nonetheless, at this time the City is not conceding that the submittal was timely.
2 The City disagrees with the position that the Preliminary Application submitted on October 24, 2022 remains valid, as detailed in the May 12, 2023 incomplete letter and provided below.

As stated in the prior letter, on October 24, 2022,2 the property owner (9300 Wilshire LLC) submitted a Preliminary Application pursuant to Government Code Section 65941.1 (the PA) for a housing development to vest the rights of a project under the ordinances, policies, and standards adopted and in effect at the time that the preliminary application was submitted. Thereafter, on April 14, 2023, the property owner submitted a formal Development Plan Review (DRP) application for a housing development project, which was within 180 days of the PA submittal date noted above as required to maintain the validity of the PA.

The project for which the DPR application was submitted (the DA project) is substantially different from the project for which the PA was submitted. The DPR plans submitted entail a mixed-use development that includes 165 dwelling units and a 73-room hotel and hotel restaurant within a 311,197 SF, 19-story building. The building contemplated in the DPR application is now proposed with a height of 200’ and includes 126 parking spaces within a four-level subterranean parking structure.

Pursuant to Govt. Code Section 65941.1 (a):
“An applicant for a housing development project … shall be deemed to have submitted a preliminary application upon providing all of the following information about the proposed project to the city … from which approval for the project is being sought and upon payment of the permit processing fee: ….” (Emphasis added.)
The information required in a preliminary application includes “[t]he proposed land uses by number of units and square feet of residential and nonresidential development using the categories in the applicable zoning ordinance.” (Govt. Code Sec. 65941.1(a)(4). (Emphasis added.)) The description of the proposed land uses included in the PA’s proposed project made no mention of any hotel or restaurant use or, for that matter, any other commercial or non-residential uses, and did not contemplate a mixed use project. The PA described the proposed land uses only as follows: “The proposed project will include 200 residential dwelling units in 259,547 (gross) sq. ft .” The argument in the August 9th letter that the PA remained valid even though it made no mention of any nonresidential development, as specifically required by Government Code Section 65941.1(a)(4), is flawed.
2 Although the Preliminary Application was submitted on Friday, October 21, 2022, the fees for the application were paid after hours, thus the submittal date is considered to be Monday, October 24, 2022. 3 The DPR application describes a very different project:
“The project consists of the construction of a new 19-story mixed use, multifamily residential and hotel building, with 165 rental apartment units (including 33 affordable housing units) and ancillary residential spaces, 73 hotel rooms and ancillary hotel spaces, and 126 parking spaces.” Based on the introduction of the new hotel use in the DPR project, which was not contemplated in the PA project, the Department continues to conclude that the DPR project submittal is for a project different from the PA project. Because the DPR project is substantially different from the project described in the PA, the Department continues to conclude that the DPR application, although filed within 180 days of the filing of the PA, is not sufficient to meet the filing requirement of Govt. Code Section 65941.1(d)(1). Therefore, the Department continues to find that the PA has expired and is of no further force or effect.

Further, as a separate and independent ground, the PA is expired and of no further effect because, for the reasons described below, the application remains incomplete. The September 15, 2023 resubmittal materials did not include all of the necessary information required in order to deem the application complete, and any subsequent submittals in response to this incomplete letter will necessarily be submitted well outside of the 90 days period following the City’s initial incompleteness letter dated May 12, 2023. Thus the application submittals have not and cannot meet the requirements of Govt. Code Section. 65941.1(d)(2).

2. General Plan Amendment and Zoning Amendment Applications Required The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“Refer to the response to item #1 and the cover letter. Applications for a General Plan Amendment or Zone Change are not necessary, as the project retains its vesting rights to proceed with a Development Review Permit in conjunction with the Builder’s Remedy.”
The City disagrees with the position that applications for a General Plan Amendment or Zone Change are not required, as detailed in the May 12, 2023 incomplete letter and provided below. The City continues to believe it has the authority to require the applications to be filed and processed as part of an overall project, even if, assuming arguendo, that it may be constrained by state law in its ability to deny a project on consistency bases.

Comments from May 12, 2023 Incomplete Letter
The proposed DPR project does not conform to the City’s General Plan and various provisions of the City’s zoning code. These deviations include, but are not limited to that:
4 • Neither a hotel nor a mixed residential/commercial use project is a permissible use in either the High Density Multifamily Residential General Plan land use designation or the R-4 zoning applicable to the project site.
• The proposed height exceeds the maximum permissible heights allowed in the General Plan and R-4 zoning
• The proposed residential density exceeds the maximum allowed density on the site.

3. Land Use – Sheets A01, A06, A07, A14, A15, A16, A28, A29, A30, A31, L1.10, and L1.13 The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“Refer to the response to item #1 and the cover letter. Applications for a General Plan Amendment or Zone Change are not necessary, as the project retains its vesting rights to proceed with a Development Review Permit in conjunction with the Builder’s Remedy.”
For the reasons noted above, the City disagrees with the position that applications for a General Plan Amendment or Zone Change are not required to facilitate commercial uses on a residentially zoned lot, as detailed in the May 12, 2023, incomplete letter and provided below.

Comments from May 12, 2023 Incomplete Letter
The project site is located within the City’s R-4 Zone, and the High Density Multi-family Residential General Plan land use designation. BHMC Sections 10-3-1202 and 10-3-1203 detail the types of 5 permitted and conditionally permitted uses within the R-4 Zone. As proposed, the DPR project3 consists of a mixed-use development that includes 165 dwelling units and a 73-room hotel and hotel restaurant. While residential development is permissible within the R-4 Zone and the High Density Multi-family Residential General Plan land use designation, subject to the applicable development standards, as noted above, mixed-use developments, including hotel and hotel restaurant uses, are not permissible in the R-4 Zone or the High Density Multi-family Residential General Plan land use designation.

4. Density – Sheet A01
The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“Refer to the response to item #1 and the cover letter. Applications for a General Plan Amendment or Zone Change are not necessary, as the project retains its vesting rights to proceed with a Development Review Permit in conjunction with the Builder’s Remedy.”
For the reasons provided above, the City disagrees with the position that applications for a General Plan Amendment or Zone Change are not required to facilitate a project that exceeds the allowable density for a project site, as detailed in the May 12, 2023, incomplete letter and provided below.

Comments from May 12, 2023 Incomplete Letter
The proposed project includes the development of 165 dwelling units on a 21,676.05 square-foot (SF) project site. The application materials submitted for this project note that the proposed project is not a density bonus project and is not seeking incentives, concessions, and/or waivers, or any subdivision which may be contemplated to separate the hotel uses from the residential uses. Specifically, as to density bonus, the PA specifically says “The project does not include a density bonus request under State Density Bonus Law”.

Fractional figures are rounded up to the nearest whole number.

As designed, the project exceeds the maximum number of allowable units by over 140 dwelling units.

Revise the project with a reduction in proposed units to comply with applicable density requirements. 3 Hereafter, the word “project” refers to the DPR project, unless otherwise noted. 6 Alternatively, the project may seek additional dwelling units above the otherwise applicable requirements by applying for a Density Bonus Permit. A density bonus project would be reviewed in compliance with applicable state density bonus law requirements.

5. Minimum Floor Area for Dwelling Units – Sheet A01 and Sheets A16 through A23 The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“Refer to the response to item #1 and the cover letter. Adherence to this zoning standard is not required.” The City disagrees with the position that adherence to the standards for minimum floor area for dwelling units is not required, as detailed in the May 12, 2023, incomplete letter and provided below.

Comments from May 12, 2023 Incomplete Letter
BHMC Section 10-3-2802 details the applicable minimum dwelling unit requirements for new development on properties located within the City’s R-4 Zone. The applicable minimum dwelling unit size are as follows:
• Studio/Efficiency Unit: Minimum floor area of 600 SF
• One Bedroom Unit: Minimum floor area of 1,000 SF
• Two Bedroom Unit: Minimum floor area of 1,300 SF
• Three Or More Bedroom Unit: Minimum floor area of 1,500 SF In review of the set of plans, the residential portion of the project consists of 165 dwelling units with a mix of 13 studio, 59 one-bedroom, and 93 two-bedroom units. As noted on Sheet A01, the average size of a studio unit is between 450 SF and 486 SF, the average size of a one-bedroom unit is between 652 SF and 658 SF, and the average size of a two-bedroom unit not located on the penthouse level (19th floor) is between 892 SF to 970 SF. As such, these units do not appear to provide the applicable minimum floor area for an efficiency, one-bedroom, or two-bedroom unit. Revise the project and design of each unit to provide the minimum floor area required.

6. Outdoor Living Space – Sheets A01, A08, and A09
The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
7 “Refer to the response to item #1 and the cover letter. Adherence to this zoning standard is not required.

For informational purposes, the plans have been updated to include dimensions on the open space areas that are provided and to revise the data discrepancy in the tables to reflect the correct number of units.

Refer to sheets A08 and A09.”
The City disagrees with the position that adherence to the outdoor living space requirements is not required, as detailed in the May 12, 2023, incomplete letter and provided below.

Comments from May 12, 2023 Incomplete Letter
a. Required Outdoor Living Space – BHMC Section 10-3-2803 details the applicable open space requirements for new development on properties located within the City’s R-4 Zone. Pursuant to this section, 200 SF of outdoor living space is required per dwelling unit. The required outdoor living space can be provided as private outdoor living space with a minimum dimension of 6’-0” on all sides, or as common outdoor living space with a minimum dimension of 15’ on all sides.

The Open Space tables show that 171 dwelling units are proposed, while the plans for the project show a total of 165 dwelling units proposed. Revise the tables according to reflect the correct number of proposed units. Revise the amount of required open space to reflect the correct unit count.
8 7. Building Height – Sheets A01, A11, A24, A25, A26, A27, A28, A29, A30 and A31 The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“Refer to the response to item #1 and the cover letter. Adherence to this zoning standard is not required.

For informational purposes, the plans have been revised to include additional data on the height and screening of the roof structures. Refer to sheets A23-A31.” The materials included new plan sheets in this round of review where comments/corrections from the city have been provided regarding building height. The City disagrees with the position that adherence to the height requirements is not required, as detailed in the May 12, 2023, incomplete letter and provided below.

Comments from May 12, 2023 Incomplete Letter
a. Maximum Allowable Height – The project site is comprised of two properties located within the City’s R-4 Zone. BHMC Section 10-3-2804 details the applicable height requirements for properties located in the R-4 Zone. The first property at 125 S. Linden Drive is located within Height District C, which allows for development up to five (5) stories with a maximum height of 55’. The second property at 129 S. Linden Drive is located within Height District B, which allows for development up to four (4) stories with a maximum height of 45’.

In review of the project plans, the new development is designed with 19 stories and at a height of approximately 200’ tall. As designed, the portion of the project located in Height District B exceeds the maximum allowable height by 155’. Similarly, the portion of the project located in Height District C exceeds the maximum allowable height by 145’. Reduce the height of the proposed project to conform to the maximum allowable height for each applicable height district. b. Height of Rooftop Elements – Call out the height of all proposed rooftop elements on all sections and elevations, including the height of the proposed rooftop elevators, rooftop stairs, mechanical equipment screening, and any unoccupied architectural features (e.g., rooftop trellises and similar).

The rooftop elements shall comply with the maximum heights detailed under the definition of "Height of Building" for Multiple-Family Residential Zones in BHMC Section 10-3-100, as provided below, otherwise these features shall not be exempt from height and shall be counted toward the overall height of building:
• Structures enclosing elevator equipment and/or elevator lobbies if such structures are not higher than fifteen feet (15') above the adjacent roof deck and are not larger than the shaft of the elevator or elevators and their respective lobby areas. • Structures enclosing stairs required by law to be carried to the roof if such enclosing structure is used for no other purpose than enclosing the stairs and is no larger than the stair shaft below and if such enclosure is not more than twelve feet (12') in height as measured from the adjacent roof deck.
9 • Penthouse structures used exclusively for mechanical equipment for the building or structure if such penthouse structure is not more than ten feet (10') in height as measured from the adjacent roof deck.
• Parapets or handrails not more than forty-five inches (45") in height as measured from the roof or floor which they surround.
c. Mechanical Equipment Screening – Show the proposed rooftop mechanical equipment screening on all sections and elevations, as the proposed screening is not shown on the sections and elevations provided. Pursuant to BHMC Section 10-3-100 (Height), the max height is 15'-0" for mechanical equipment penthouses and enclosures.

8. Alley Dedication – Sheets A11 through A29 L1.10 through L1.15 Sheets A11 though A29 have been updated to reflect the required alley dedication on the north side and rear. However, the new landscape plans submitted for this second round of review (Sheets L1.10 – L1.15) do not have these dedication areas shown and show landscaping and site paving in the required alley dedication area. Revise the landscape plans accordingly per the city’s correction issued on May 12, 2023 and listed below.

Comments from May 12, 2023 Incomplete Letter
As required by the City’s Street Master Plan, a 2’-6” dedication is required along the north side and rear of the project site for widening of the existing 15’ alley to improve vehicular circulation. (See also BHMC Section 10-6-2, regarding street dedication and improvement requirements.) This dedication area needs to be shown on all details of the set of plans. Additionally, any required property setback shall be measured from the adjusted property line, post-alley dedication.

Show the required 2’-6” alley dedication area on all details of the set of plans, including on landscape plans site plan, floor plans, and all sections and elevations provided. Adjust the location of the property lines adjacent to the required dedication areas accordingly.

9. Setbacks – Sheets A01 and A11 through A29, A30, A31, and L1.10 through L1.15 The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“Refer to the response to item #1 and the cover letter. Adherence to this zoning standard is not required.

For informational purposes, the plans have been revised to include additional data on the proposed setbacks, relative to the new property line location after the dedication. Refer to sheets A11-A23.” The materials included new plan sheets in this round of review where comments/corrections from the city have been provided regarding required setbacks. The City disagrees with the position that adherence to the setback requirements is not required, as detailed in the May 12, 2023, incomplete letter and provided below.
10 Comments from May 12, 2023 Incomplete Letter
a. Front Setback – The applicable front yard setback for the project site is 15’-0”. As designed, portions of the proposed building located above ground level would encroach into the required setback.

Adjust the project design accordingly to provide the applicable front modulation for the project pursuant to BHMC Section 10-3-2806.

10. “NO BUILD ZONE” Area – Sheets A12 and A13
Area of no build zone added to the set of plans.

In reviewing the Fault Rupture Hazard Investigation dated October 7, 2020, previously prepared for the project site, several active earthquake faults were discovered on the properties at 125 and 129 S. Linden Drive. The “Structural Setback Plan” on Page 60 of the document establishes a “NO BUILD ZONE” where no portion of a habitable structure could be built.

11. Front Yard Paving – Sheets A14, L1.10 and L1.13
The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“Refer to the response to item #1 and the cover letter. Adherence to this zoning standard is not required.” The materials included new plan sheets in this round of review where comments/corrections from the city have been provided regarding front yard paving. The City disagrees with the position that adherence to the front yard paving requirements is not required, as detailed in the May 12, 2023, incomplete letter and provided below.
12 Comments from May 12, 2023 Incomplete Letter
BHMC Section 10-3-2813 details the applicable front yard paving standards for properties located within the City’s R-4 Zone. Pursuant to this section, no portion of any front yard within the R-4 Zone shall be paved, except for not more than one walkway not exceeding five feet (5') in width and one driveway not exceeding the width of its curb cut. Based on the design provided on Sheet A14, the project includes a paved courtyard and walkway to the north side of the property. No driveway paving is proposed within the front yard setback area. Together, these walkways exceed the maximum allowable width for walkways located in the front yard setback area.

12. Site Walls and Fences – Sheets A11, A14, L1.10, and L1.13 The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“Refer to the response to item #1 and the cover letter. Adherence to this zoning standard is not required.

For informational purposes, the plans have been revised to show details on the site walls and fences. Refer to sheets A11 and A14.”
The materials included new plan sheets in this round of review where comments/corrections from the city have been provided regarding front yard paving. Sheets A11 and A14 were revised to show a proposed 6’ tall security gate and fence at the rear of the property, however, the revised plans did not include details or sections showing the height or design of the wall. Provide sections and details for the proposed site fences and gate at the rear of the property. The City disagrees with the position that adherence to the site fence and wall requirements is not required, as detailed in the May 12, 2023, incomplete letter and provided below.

Comments from May 12, 2023 Incomplete Letter
Show all proposed site fences and walls on the site plan for the project. Provide additional details and sections on the set of plans showing the design and height of any proposed fences and walls. All site fences and walls shall be designed in conformance with the applicable fence/wall standards provided in BHMC Section 10-3-2814.

13. Parking – Sheets A01, A12 and A13
The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“Refer to the response to item #1 and the cover letter. Adherence to this zoning standard is not required.” 13 The City disagrees with the position that adherence to the parking standards is not required, as detailed in the May 12, 2023, incomplete letter and provided below. Further, we note that the provisions of Assembly Bill 2097 do not apply to this project because the project includes a hotel component. (Cal.

Govt. Code Sec. 65863.2(e)(6).)
Comments from May 12, 2023 Incomplete Letter
a. Residential Parking – BHMC Section 10-3-2816 details the applicable parking standards for properties located within the City’s R-4 Zone. Pursuant to this section, the project shall provide the following number of parking spaces per dwelling unit type:
• One (1) parking space shall be provided for each multiple-family dwelling unit that is an efficiency unit of less than one thousand (1,000) square feet. • Two (2) spaces shall be provided for each multiple-family dwelling unit that contains one bedroom.
• Two and one-half (2 ½) parking spaces shall be provided for each multiple-family dwelling unit that contains two (2) bedrooms.

Revise the design of the parking aisle width to provide the 26’-0” wide minimum aisle width. f. Garage Encroachment into Alley Dedication Area – Correct addressed. Basement garage no longer encroaches into alley dedication area.

As designed, the basement garage would encroach into the 2’-6” alley dedication area required along the north side and rear of the property. The garage cannot encroach into the required alley dedication area. Revise the design of the parking garage so that no portions of the building encroach into the required alley dedication areas.
15 g. Replacement Parking for 9740 Wilshire Blvd –
The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“The Project provides parking which can be shared between multiple uses. Additionally, the Project and the existing office building are eligible for a total reduction of parking requirements per recent updates to state law (Assembly Bill 2097), so in providing 126 spaces it provides more parking than is required.”
First, as noted above, Assembly Bill 2097 does not apply to this project because the project includes a hotel component. (Cal. Govt. Code Sec. 65863.2(e)(6).) Thus, the City disagrees with the position that AB 2097 impacts the obligation to provide replacement parking for 9740 Wilshire Blvd, as detailed in the May 12, 2023, incomplete letter and provided below. Furthermore, even if AB 2097 did apply, pursuant to Government Code Section 65863.2(h)(1), the city retains the ability to enforce a covenant or contractual agreement for parking. As noted in the city’s May 12, 2023, incomplete letter, “…a parking covenant was filed with the city and recorded on August 12, 1957, against the properties at 9740 Wilshire Blvd and 129 S. Linden Drive to provide a portion of the required parking off-site. The use of the 129 South Linden Drive site for commercial parking purposes was approved through Variances issued by the City Council in 1941 and 1958 (City Council Resolution Nos. 1061 and 2841).”
Comments from May 12, 2023 Incomplete Letter
The project site at 129 S. Linden Drive is currently improved with a surface parking lot that provides required parking for the commercial office building located at 9740 Wilshire Blvd. The original building plans for the commercial building at 9740 Wilshire Boulevard show that the surface parking lot at 129 S. Linden Drive was designed with diagonal parking for 50 vehicles. To facilitate this, a parking covenant was filed with the city and recorded on August 12, 1957, against the properties at 9740 Wilshire Blvd and 129 S. Linden Drive to provide a portion of the required parking off-site. The use of the 129 South Linden Drive site for commercial parking purposes was approved through Variances issued by the City Council in 1941 and 1958 (City Council Resolution Nos. 1061 and 2841).

However, Pursuant to BHMC Section 10-3-2737, it is not permissible to locate parking required for a commercial use or commercial property on a site that is zoned for residential land uses. As it pertains to the replacement parking for 9740 Wilshire, the replacement parking would either need to be provided on an alternative site zoned for commercial uses, or the applicant would need to seek a code amendment to allow for replacement of the required parking within this new 16 development. As previously noted, in addition to the parking required for the proposed project, a total of 50 parking spaces will need to be provided as replacement parking for the 9740 Wilshire site because the new development is proposing the removal of the existing covenanted parking required for the development on that property.

14. Loading – Sheets A06, A14, L1.10, and L1.13
The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“Refer to the response to item #1 and the cover letter. Adherence to this zoning standard is not required.” The materials included new plan sheets in this round of review where comments/corrections from the city have been provided regarding the proposed loading area. The City disagrees with the position that adherence to the loading requirement is not required, as detailed in the May 12, 2023, incomplete letter and provided below. In addition, the loading study and maneuvering information is necessary to disclose the potential effects of the project and to provide decision-makers adequate information to conduct the required discretionary review of the project.

Comments from May 12, 2023 Incomplete Letter
a. Number of Loading Spaces Required – BHMC Sections 10-3-2740 [through] 10-3-2743 detail the applicable loading space requirements. Based on the area schedule provided on Sheet A06, approximately 48,034 SF of floor area is proposed for use as hotel and hotel restaurant on the first and second floors. Pursuant to BHMC Section 10-3-2741, the number of loading spaces required for the proposed commercial floor area is three (3) truck spaces. Each truck loading space shall have a minimum length of 35’, width of 12’, and overhead clearance of 10’.

Revise the project to provide the applicable number of loading spaces at the required minimum dimensions.
b. Loading Study – Provide a loading study that evaluates the loading demands of the proposed project and determines the adequacy of the loading areas proposed. The loading study shall also study vehicle maneuverability into the proposed loading areas, particularly truck maneuverability for accessing the loading space located adjacent to the alley at the rear, as it appears difficult to maneuver a truck in the alley due the existing width. The existing alley measures 15’ in width, but would be widened to 17’-6” feet once the project dedicates land along the alleys. 17 c. Location of Loading Spaces – Pursuant to BHMC Section 10-3-2742, when a project site or structure abuts an alley, access to loading spaces shall be provided from the alley. Alley accessed loading spaces shall be parallel to the alley unless the project applicant establishes one of the following:
• Site constraints preclude construction of a parallel loading space or spaces; or, • The alternative loading space configuration proposed by the project applicant meets the functional requirements of the code.

Provide maneuvering diagrams showing truck ingress and egress to the loading spaces provided for the project.

15. Survey – Sheet A10
Comments regarding survey have been addressed. New survey file submitted in response to comments. a. Scale of Plan – In review of the survey provided on Sheet A10, the drawing does not appear to match the scale noted on the plan sheet. When several site features with dimensions are measured at the noted scale (1” = 10’), the dimensions scale out to less than what are noted on the survey. Provide a survey that is drawn to the scale noted on the plan sheet. b. Survey Legibility – The survey provided appears to be scanned from an original of that document and placed on the set of plans. As such, the details and dimensions provided are pixelated and not very legible. Provide a survey that is clear, legible, and not pixelated. c. Surveyor’s License Expiration – The survey provided notes that the surveyor’s license expired on 12/31/2020. Provide an updated survey with an updated expiration date of the surveyor of record.

16. Title Report – Sheet A10
Title report provided with resubmittal. No easements recorded against property per title report. 18 Provide a Title Report of the project site to verify whether any easements exist on the properties at 125 and 129 S. Linden Drive. The survey provided on Sheet A10 notes that there are no easements on the project site, “per referenced preliminary title report.” However, a copy of this title property was not provided. Provide a title report of the project site with project resubmittal.

17. Elevations and Renderings – Sheets A00, A02, A03, A04, A24, A25, A26, and A27 The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“Refer to the response to item #1 and the cover letter. Adherence to this zoning standard is not required.” The City disagrees with the position that adherence to the city’s development standards is not required, as detailed in the May 12, 2023, incomplete letter and provided below.

Comments from May 12, 2023 Incomplete Letter
Revise the elevations and renderings provided for the project, as required, to address the corrections and comments provided in this review letter and the redlined set of plans.

18. Floor Plan Layouts for Dwelling Units – Sheets A16 through A23 The floor plans have been revised to provide the interior layout of each unit. Correction addressed by applicant.

Provide floor plans layouts for each of the proposed dwelling units in the project. The floor plans provided only have a call out to the number of bedrooms in each unit, but the layout of each unit is not provided. The floor plans shall show the proposed kitchen, bathroom, bedroom, and living area of each of the proposed dwelling units.

19. Rubbish Storage – Sheets A14, L1.10, L1.13
The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“This requirement will be satisfied once Construction Documents are drafted as this requirement is derived from the Building Code. The project will incorporate these requirements as required during the construction document phase.”
The City requires this information to be provided at this stage to determine if the required amount of rubbish storage is being provided for the project. Please provide this requested information to verify compliance with the applicable requirement, as detailed in the May 12, 2023, incomplete letter and provided below.

Comments from May 12, 2023 Incomplete Letter
19 BHMC Section 9-3-1 details the applicable rubbish storage standards for residential and commercial development. As proposed, the project would include a 592 SF trash room located in the first floor of the building, adjacent to the alley at the rear. However, calculations were not provided on the set of plans or in the application materials to demonstrate that the proposed trash room is of sufficient size to accommodate the anticipated demand for waste generated by the project site.

20. Landscape Plans – Not Provided Sheets L1.00 through L1.15 Landscape plans provided for review. Please review the other sections of this letter for comments and corrections applicable to the landscape plans, along with the redlined set of plans for this round of review. Also note that the alley dedication area is not shown on these plans. Instead, the landscape plans show landscaping and project site hardscaping the in the future alley area. The area to be dedicated for widening of the alley shall be paved with a surface approved by the Public Works Department for alleys, which is generally asphaltic concrete.

Revise the landscape plans accordingly.

Provide landscape plans of the proposed project with resubmittal. The landscape plans shall show all proposed landscaping improvements on the project site and in the public right-of-way.

22. Low Impact Development (LID)
To be provided in Building Plan Check.

Pursuant to BHMC Section 9-4-508, the City’s Low Impact Development (LID) requirements are applicable to new developments projects.

A copy of the Low Impact Development (LID) Fact Sheet is available for download from the City’s website using the following link:
20 http://www.beverlyhills.org/cbhfiles/storage/files/1266023136723167408/ChecklistforLIDRequiremen tsFINAL(6).pdf
For question related to LID requirements, please contact Trevor Alsop at 310-288-2837 or by email at [email protected].

23. Shade and Shadow Study – Sheet A32
In review of the shade and shadow study provided, see the following comments provided below:
a) Show the property lines, addresses, and street names on all pages of the shade and shadow study.

Show property lines and addresses for all properties shown on the study. b) Show the fully extent of the shadow cast by the proposed building. The exhibits provided are small and do not appear to fully depict the extent of the shadow cast by the proposed building.

Provide a shade and shadow study for the proposed project. Diagram the shadows from the proposed structure during the winter and summer equinoxes, from 6:00 A.M. to 9:00 P.M., at three-hour intervals. The study shall show adjacent properties and the projected shadow on those properties during the noted intervals.

24. Rooftop Operations Plan
The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“The 18th and 19th floor rooftop areas include passive seating areas and landscaping. The rooftop areas will be used for residential users only. The maximum occupancy will be confirmed by the City during the plan check phase once construction documents are prepared.” The narrative provided in the response letter does not provide sufficient detail as to the proposed operations on the rooftop areas for the project. This information is necessary to disclose the potential effects of the project and to provide decision-makers adequate information to conduct the required discretionary review of the project. Please provide a detailed Rooftop Operation Plan that addresses the items detailed in the May 12, 2023, incomplete letter.

Comments from May 12, 2023 Incomplete Letter
Provide the following information for all enclosed and unenclosed rooftop areas proposed:
• Indicate the types of uses proposed for all enclosed and unenclosed rooftop areas. • Indicate the proposed hours of operation of all enclosed and unenclosed rooftop areas. • Indicate whether the rooftop area will be used exclusively by the residential portion of the project or if hotel rooftop access will be provided.
21 • If the hotel will have access to the rooftop, indicate the type, frequency (yearly, monthly, daily, etc.) of rooftop events, appointments, etc.
• If the hotel will have access to the rooftop, indicate maximum occupancy anticipated for each type of event.

25. Arborist Report
As no trees are being removed from the Public Right-of-Way, no arborist report is required.

Provide an Arborist Report detailing all existing trees located within adjacent public right-of-way along South Linden Drive. The arborist report shall also detail all proposed removal and/or installation of new trees in the public right-of-way.

26. Transportation/Traffic Studies
A Transportation Impact Analysis was submitted with this second round of review. Further comments on the Transportation Impact Analysis may result as part of the preparation of environmental documents as required under CEQA.

Pursuant to the City’s Local Transportation Assessment Guidelines adopted by Planning Commission Resolution No. 1901, the following transportation/traffic studies are required:
a. Transportation Impact Analysis – Based on the City’s screening criteria, the project does not appear to be screened out from providing a Transportation Impact Analysis. Please provide a Transportation Impact Analysis that evaluates potential Vehicle Miles Traveled (VMT)-related impacts associated with the proposed Project.
b. Local Transportation Assessment – For projects that generate over 75 peak hour trips, a local transportation assessment/traffic study shall be required using Level of Service (LOS) metric to evaluate signalized and unsignalized intersection operation and use the percentage increase in traffic volumes to evaluate impacts on local residential streets. Analyzed locations should primarily consist of major signalized intersections that are likely to be affected by the project. Additionally, the study area should also look at roadways providing access to the project site, such as the roadway(s) containing the project’s primary driveway or secondary access point, or the intersection(s) immediately adjacent to the project site along with the surrounding area. Such report shall be prepared by the applicant and submitted to the City for review and comment by the City’s Traffic Engineer.

27. Transportation and Trip Reduction Measures - Transportation Impact Analysis The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“Please see the enclosed Transportation Impact Analysis by LLG (Attachment E), dated July 31, 2023 in response to this comment.”
22 In review of the Transportation Impact Analysis provided, Pages 62-64 of the report provides a copy of BHMC Section 10-7-301. However, the Transportation Impact Analysis of the set of plans do not show how the project will comply with the applicable trip reduction measures, including but not limited to, where the required bicycle parking will be provided. The analysis only states on Page 64 that “The Project will comply with the required TDM and trip reduction measures detailed in Section 10-7-301 of the BHMC,” but provided no information on how the project will comply or what measures are incorporated into the project to achieve compliance.

Revise the Transportation Impact Analysis and the set of plans to show how these requirements are implemented in the project. Show the location of the required bicycle parking on the set of plans.

Please provide this requested information to verify compliance with the applicable requirement, as detailed in the May 12, 2023, incomplete letter and provided below.

Comments from May 12, 2023 Incomplete Letter
Pursuant to BHMC Section 10-7-301, the applicant is required to incorporate various measures to provide for transportation demand management and trip reduction. As the project appears to provide more than 50,000 SF of gross floor area for commercial uses, the applicant shall incorporate all required measures into this project, which includes but is not limited to, providing bicycle parking, spaces reserved for vanpool, and information on rideshare and public transit opportunities.

Revise the project to incorporate the applicable transportation and trip reduction measures accordingly.

28. Geotechnical/Soils Report
A Geotechnical Investigation Report was provided. Comments on the report are provided below.

Provide a geotechnical/soils report for the project and project site. The geotechnical/soils report shall evaluate the proposed project and provide recommendations for the construction of the proposed building based on existing soil conditions. The report should also address the site-specific fault issues and constraints.
a. Discrepancy in Project Scope
The materials provided in the September 15, 2023, resubmittal of the project included a Geotechnical Investigation Report dated April 8, 2021. In review of the Geotechnical Investigation Report, there appears to be an error in the type of project analyzed by the Geotechnical Engineer in preparation of this document. The proposed project is a 19-story building with four levels of subterranean parking provided at an approximate depth of 41’ at parking level P4 and about 50’ in depth at the hotel elevator well. However, the Geotechnical Investigation Report notes that the project is a nine-story residential structure with three levels of subterranean parking, which does not match the project submitted as part of the Development Plan Review application. Additionally, the excavation depths noted in the report at 35’ do not match the project that was submitted to the city for review. Specifically, Page 3 of the report states the following:
23 “Based on information provided to us by the client, we understand that the proposed development consists of one nine-story residential structure over three subterranean parking levels that will extend to depths of approximately 35 feet below ground surface.” Furthermore, Item 7.1.16 in the Conclusions and Recommendations section of the report (Page 18) stated the following:
“7.1.16 - Any changes in the design, location or elevation, as outlined in this report, should be reviewed by this office. Geocon should be contacted to determine the necessity for review and possible revision of this report.”
Revisions by the geotechnical engineer to the Geotechnical Investigation Report and its recommendations are required to accurately analyze the correct project scope and the currently submitted plans. See comments provided on Geotechnical Investigation.

29. Construction Management Plan
Provide a construction management plan that provides relevant project construction details, including but not limited to:
• Anticipated timelines for the different construction phases of the project (e.g., demolition, grading, shoring and excavation, construction of the basement, foundations, and above grade work). Provided and in receipt.
• Proposed locations for the staging of construction materials and equipment. Incomplete as this information was not provided, needs to be resubmitted. • Anticipated closures of any right-of-way area (alley/street) and timelines for such closures.

Incomplete as this information was not provided, needs to be resubmitted.

30. Noise Study
The preparation of a noise study will be commissioned by the city as part of the preparation of an environmental report for the project.

Comments from May 12, 2023 Incomplete Letter
Provide a noise study of the project to evaluate projected construction noise and noise levels anticipated post-construction with the proposed rooftop outdoor living space uses.

31. Metro Adjacent Development Review
The project site is located within close proximity to the upcoming Metro Purple (D Line) subway, which is currently under construction. The subway line is projected to run under Wilshire Boulevard and travel southwest to a station located in Century City, potentially under the project site. To ensure safety, developers, utility companies, and other third parties must consult with Metro for development, construction, and maintenance activities occurring within 100 feet from Metro right-of-way (ROW) and other real estate assets.
24 As noted on Page 2 of the Geotechnical Investigation report, “Due to the location of the Metro tunnels for the Purple Line Extension, it is possible that portions of the proposed structure will be situated within the influence zone defined by Section 4.1-A of the MTA Design Criteria and Standards, Volume III, Adjacent Construction Design Manual Adjacent Construction Design Manual. New construction within or near the MTA influence zone, must not impose a surcharge on the subterranean MTA facilities in excess of what the structure is designed to withstand. If proposed subterranean levels are not sufficiently deep then building loads could exceed the surcharge allowable by MTA; therefore, the new loads will have to be transferred below or outside of the defined MTA Surcharge Influence Zone projection.” Provide information to the city of the applicant’s outreach efforts with Metro documenting that the proposed project would not impact Metro’s Purple Line facilities or exceed allowable surcharge limits.

Also, as noted on Item 28.A, the project evaluated in the Geotechnical Investigation does not match the project that has been submitted to the city for review. As the project has changed from the nine-story building with three subterranean levels evaluated in the Geotechnical Investigation to the 19-story project with four subterrean levels that was submitted to the city, the larger project may have the ability to result in increased surcharges to Metro facilities and requires their review.

32. Public Works Stormwater/Environmental Compliance/Sustainability Comments To be reviewed in Building Plan Check.

Below are Stormwater/ Environmental Compliance/ Sustainability comments provided by the Public Works Department:
• Project to use available 100% renewable energy from local utilities. • Sewer system capacity requirement. Require hydraulic modeling to assess sewer capacity issues for the development. Improvement to wastewater system if it impacts sewer system flow. • If permanent dewatering system is needed, design the project to re-use groundwater for nonpotable water systems as required pursuant to BHMC Section 9-4-610.B.2. All ground water discharges must have a permit (NPDES) from the Regional Water Quality Control Board and may require a permit from the City of Beverly Hills.
• Appropriate number of approved Meter Service Protection backflow prevention assemblies for Domestic, Irrigation and Fire Meters required.
• Must implement Low Impact Development (LID) meeting requirements of LID ordinance to mitigate stormwater runoff.
• The applicant is required to install a grease interceptor for food service establishment use.

Grease interceptor design shall meet the Los Angeles County Public Works Industrial Waste Program requirements. Placement should be accessible for maintenance operation. 25 • Water discharged from a loading dock and trash enclosure shall be directed through grit/oil separator. A loading dock is not to be confused with a loading zone or designated parking space for loading and unloading.
• Organic residuals from daily operations and water used to wash trash rooms cannot be discharged to surface public right of way.
• Condensate from HVAC and refrigeration equipment shall drain to the sanitary sewer, not curb drains.

For questions regarding these comments, please contact Trevor Alsop, Environmental Compliance Inspector, at (310) 288-2837 or by email at [email protected].

33. Building and Safety – Building and Technical Code Comments Below are comments provided by Building and Safety regarding compliance with applicable building and technical codes:
• These comments reflect high-level conceptual review comments. Complete code compliance review will be forthcoming upon plan check submittal. Building Plan Check Item • The review comments are in accordance with 2022 California Building Code and its references.

Building Plan Check Item
• General contractor must submit Construction Management Plan for review and approval prior to any building permit issuance. The plan needs to address how to the building to be built including demolition, excavation, shoring, access to site for ingress and egress, haul route, tower crane if needed, pedestrian protection, sanitary facilities, a temporary or permanent stairway, standpipe, fire watch during construction, traffic control plan (will be reviewed by Public Works), etc. Refer to California Building Code (CBC) Chapter 33. Building Plan Check Item
• The project to comply with requirements of Beverly Hills Municipal Code, Title 10 and Chapter 6, STREET, ALLEY, AND HIGHWAY DEDICATIONS AND IMPROVEMENTS. Alley dedications inconsistently shown on resubmitted plans. All sheets must identify location of alley dedications.
• Survey map is required to show all easements on the properties. Provided • Comply with the City’s applicable parking standards.
https://www.beverlyhills.org/cbhfiles/storage/files/563485925821755963/ParkingStandards(R EV2.18).pdf Not addressed. See Planning’s comments related to adherence with the City’s parking requirements.
• The project requires LID (Low Impact Development) plan check. Building Plan Check Item • On site plan, confirm the location of seismic fault line with dimensions per the seismic fault investigation report. Provided on revised Architectural Plans. • Provide complete Fire department and vehicle access. Building Plan Check Item • Hotel will be classified as R-1 occupancy. CBC 310. Building Plan Check Item • The project is required to be designed in compliance with requirements of CBC 403, High-rise building and CBC 405, Underground Building. Building Plan Check Item 26 • The project is required to provide separate accessible parking requirements per CBC 11A and CBC 11B for residential and nonresidential, respectively. Additionally, the project shall provide accessible and standard EV charging parking spaces. Show the location of these required EV parking spaces in the proposed garage. EV parking spaces not provided on parking plans.

Revise parking plans to call out all EV parking spaces within the project. • The project shall comply with both residential and nonresidential requirements of California Green Building Standards Code in accordance with Beverly Hills Municipal Code, Title 9, Chapter 2 and Article 11. Building Plan Check Item
• The project is required to fully comply with California Energy Code. Building Plan Check Item • The project is required fully comply with accessibility provisions of CBC 11A and CBC 11B for residential and nonresidential, respectively. Building Plan Check Item • The hotel shall be designed in compliance with CBC 11B-224. Building Plan Check Item • The project building shall be designed in compliance with requirements of CBC 705.5 and CBC 705.8. Building Plan Check Item
• The project shall fully comply with requirements of CBC Chapter 10. No exiting analysis was provided. Building Plan Check Item
• The project shall comply with accessible means of egress requirements per CBC 1009.

Building Plan Check Item
• The enclosed parking structure shall be designed in compliance with CBC 406. Building Plan Check Item
For questions regarding these comments, please contact Ocean Kwon, Senior Plan Review Engineer, at (310) 285-1153 or by email at [email protected].

34. Building and Safety – Right of Way Comments
Below are comments provided by Building and Safety regarding areas in the public right-of-way:
• Provide a water demand study to evaluate anticipated water demand for project and for the City to evaluate the types of upgrades and improvements that will be necessary to existing infrastructure. Incomplete as this information was not provided, needs to be resubmitted. • Obtain will serve letter from the Public Works Water Division.Incomplete as this information was not provided, needs to be resubmitted.
• Coordinate with Edison to evaluate necessary upgrades to existing infrastructure to facilitate the project and provide the City a proposal of all upgrades required to provide service to the project. Incomplete as this information was not provided, needs to be resubmitted. • Provide a Construction Management Plan with a narrative detailing the types of temporary encroachments that the project would require during project construction. Based on the proposal, the project would require working areas for the staging and storage of construction materials, equipment, crane(s), trailers, deliveries, and for a laydown area for transport and maneuvering of vehicles. Incomplete as this information was not provided, needs to be resubmitted.
• Provide a plan showing the proposed haul routes and delivery route to the project site. To limit construction impacts to residential properties within the vicinity of the project site, all 27 construction-generated traffic should provide ingress and egress to and from the project site directly to Wilshire Boulevard. Incomplete as this information was not provided, needs to be resubmitted.

For questions regarding these comments, please contact Ara Retchian, Senior Plan Review Engineer, at (310) 285-1106 or by email at [email protected].

37. Additional Corrections
Based on the responses to this incomplete letter and changes to the project plans, additional corrections may result from the review of the revised project.

38. Additional Comments
See redlined set of plans for additional comments.

Once the items above have been addressed and submitted, the application will once again be assessed for completeness. In your response resubmittal, please provide a copy of this letter. 28 Should you have any questions regarding the above comments, please feel free to call me at (310) 285-1138, or by email at [email protected].

Sincerely,
_________________________________
Edgar Arroyo, Senior Planner
Attachments:

A. Redlined plans
B. Comments on Geotechnical Investigation Report
ATTACHMENT 5
Applicant’s Response to 2nd Round
Incomplete Determination
Dated January 10, 2024
(w/o Attachments)
633 West Fifth Street
64th Floor
Los Angeles, CA 90071
213.557.7222
www.rpnllp.com
Dave Rand
213.557.7224
[email protected]
January 10, 2023

VIA EMAIL
Edgar Arroyo, Senior Planner
Community Development Department
Planning Division
City of Beverly Hills
455 N. Rexford Drive
Beverly Hills, CA 90210

Re: Response to Second Incomplete Letter dated October 13, 2023 125 – 129 South Linden Drive – Development Plan Review (PL2300126) Dear Mr. Arroyo,
We are submitting this transmittal on behalf of 9300 Wilshire, LLC (the “Applicant”) in connection with the Development Plan Review application (“DPR Application”) for the proposed mixed use project at 125-129 South Linden Drive (“Site”), assigned case number PL2300126 (the “Project” or “DPR Project”). This transmittal, consisting of this letter and the associated attachments, serves as the Applicant’s formal written response to the second letter issued by the City of Beverly Hills (“City”) on October 13, 2023, which stated that the DPR Application had been deemed incomplete (the “Second Incomplete Letter”). This transmittal is being sent to the City within 90 days of the date of the Second Incomplete Letter, in conformance with Government Code Section 65941.1(d)(2).

On October 21, 2022 the Applicant submitted a Senate Bill 330 Housing Crisis Act of 2019 (“HCA”) preliminary vesting application (“HCA Preliminary Application”) for the Project. 1 At the time of
submittal of the HCA Preliminary Application the City lacked a legally compliant Housing Element.2

1 The City’s May 12, 2023 First Incomplete Letter states “Although the Preliminary Application was submitted on Friday, October 21, 2022, the fees for the application were paid after hours, thus the submittal date is considered to be Monday, October 24, 2022.” This point is not contested here. 2 In a letter to the City dated May 12, 2023, the State’s Department of Housing and Community Development (“HCD”) found that the City’s 6th Cycle Adopted Housing Element, adopted February 21, 2023, does not substantially comply with State Housing Element law. HCD’s May 12, 2023 letter also stated that “[b]y no means was the City’s prior submittal [adopted October 15, 2021] in substantial compliance with State Housing Law,” and the “City’s findings as part of the adoption are inadequate to demonstrate substantial compliance with statutory requirements; therefore, revisions to the element continue to be necessary to substantially comply with State Housing Element Law.”
See also “HCD Letter of Technical Assistance Letter” to Rand Paster & Nelson LLP, dated October 5, 2022.

Edgar Arroyo
January 10, 2024

Page 2 ends

Accordingly, the Project relies on the “Builder’s Remedy” provision of the State Housing Accountability Act (“HAA”) which prohibits the City from using its objective general plan, specific plan or zoning regulations to deny or render infeasible an affordable housing development project (i.e., a housing development project that provides at least 20 percent of the total units to lower income households, as defined by Health and Safety Code Section 50079.5). The City’s Housing Element remains out of legal compliance, as recently confirmed by the September 12, 2023 Los Angeles County Superior Court ruling in Californians for Homeownership, Inc. v. City of Beverly Hills, Case No. 23STCP00143 and the latest review letter from HCD dated December 15, 2023.

The Applicant submitted the Project’s DPR Application on April 24, 2023, which was within the six-month statutory time period required by California Government Code Section 65941.1(d) to maintain the vested rights conferred by the HCA Preliminary Application. On May 12, 2023, within thirty days from receipt of the DPR Application, the City timely issued a letter deeming the DPR Application incomplete (the “First Incomplete Letter”). The City’s First Incomplete Letter rejected the entire legal premise that the Project may proceed under the Builder’s Remedy provision of the HAA, and instead instructed the Applicant to pursue a General Plan Amendment and Zone Change to cure areas where the Project does not comply with current zoning. The City also claimed that the HCA Preliminary Application was of no further force or effect because the DPR Project was allegedly “substantially different” from the Project as described in the HCA Preliminary Application, purportedly because the DPR Project includes commercial uses which were not initially described in the HCA Preliminary Application.

However, the City’s assertion is incorrect and the HCA Preliminary Application remains valid given the Project, as described in the DPR Application, did not violate the only two criteria recognized by California law that could result in a loss of vesting: namely, the DPR Project did not increase or decrease the number of residential units or square footage of construction by more than 20 percent from the project description and plans submitted with the HCA Preliminary Application.3 On August 9, 2023, the Applicant submitted a formal written response to the First Incomplete Letter (“Response to First Incomplete Letter”) which included detailed written responses to each of the First Incomplete Letter’s 38 comments as well as attachments addressing the specific information identified as outstanding by the First Incomplete Letter. The letter refuted the First Incomplete Letter’s assertions that 1) the Project’s right to HCA vesting have been lost due a change in the Project’s uses, and 2) that additional entitlement approvals, including a General Plan amendment and Zone Change, are required to allow the Project to be approved. We continue to maintain that these assertions are erroneous and reflect the City’s misunderstanding of State law requirements established by the vesting provisions of the HCA, the “Builders Remedy” provision of the HAA, and the Permit Streamlining Act (“PSA”). The Response to First Incomplete Letter was sent to the City within 90 days of the date of the First Incomplete Letter, in conformance with Government Code Section 65941.1(d)(2), and was sent to the Project’s assigned planner at the City via email, which is consistent with the method of communication and transmittal of application materials used for all other Project-related correspondence between the City and this firm.

Pursuant to the HCA, the Applicant expected to receive a response regarding the DPR Application’s completeness from the City within 30 days, or on or before Friday, September 8, 2023. No such response was provided by the City by that date, and therefore this firm sent additional correspondence to the City on September 15, 2023 (“Confirmation of Deemed Complete Letter”), again 3 Government Code Section 65941.1(c).

Edgar Arroyo
January 10, 2024

Page 3 ends

via email, advising the City that because no response to the Response to First Incomplete Letter or additional requests for application items had been timely received, the Project was therefore considered “deemed complete” in accordance with HCA and the PSA. The City responded to the Confirmation of Deemed Complete Letter on September 18, 2023, via email, stating that they never received the Response to First Incomplete Letter due to an issue with the City’s email security filter system.

Notwithstanding that the Response to First Incomplete Letter was in fact timely transmitted to the City on August 9, 2023, within the 90-day timeframe prescribed by Government Code Section 65941.1(d)(2), and notwithstanding the fact that prior and subsequent email correspondence between this firm and the City was timely received by the City, the Applicant agreed to provide the City with a new 30-day period from September 15, 2023 (the date of the Confirmation of Deemed Complete Letter transmittal) to review the materials originally transmitted on August 9, 2023 as part of the Response to First Incomplete Letter.

On October 13, 2023, the City issued the Second Incomplete Letter, which is attached as Attachment A. The Second Incomplete Letter makes three distinct claims which the Applicant refutes:

First, the City reiterates the argument that the HCA Preliminary Application is no longer valid because the DPR Project was “substantially different” from the Project as described in the HCA Preliminary Application. The City’s claim that the HCA Preliminary Application and its vesting protections are no longer in effect because new land uses were introduced for the DPR Project is without merit, as the language of Government Code Section 65941.1(a)(4) is not relevant to any determination regarding a loss of vesting. Instead, the solely relevant statutory language regarding changes to a project description contained in a HCA Preliminary Application that forfeit vested rights is provided by Government Code Section 65941.1(c), which states:
“After submittal of all of the information required by subdivision (a), if the development proponent revises the project such that the number of residential units or square footage of construction changes by 20 percent or more, exclusive of any increase resulting from the receipt of a density bonus, incentive, concession, waiver, or similar provision, the housing development project shall not be deemed to have submitted a preliminary application that satisfies this section until the development proponent resubmits the information required by subdivision (a) so that it reflects the revisions. For purposes of this subdivision, “square footage of construction” means the building area, as defined by the California Building Standards Code (Title 24 of the California Code of Regulations).4
(Emphasis added).

The Project submitted with the HCA Preliminary Application consisted of a residential project that included 200 dwelling units within a 259,547 square foot, 16-story building. The DPR Project consists of a mixed-use development that includes 165 dwelling units and a 73-room hotel and hotel restaurant within a 311,197 square foot, 19-story building. The number of residential units was reduced from 200 in the HCA Preliminary Application to 165 in the DPR Project (a 17.5 percent decrease), and the square footage of construction was increased from 259,547 square feet in the HCA Preliminary Application to 311,197 square feet in the DPR Project (a 19.9 percent increase). These revisions are within the 20 percent threshold set forth in Government Code Section 65941.1, and do not require the Applicant to resubmit information required by Section 65941.1(a). Therefore, the vesting protections established by the HCA Preliminary Application continue to apply to the Project. 4 Government Code Section 65941.1(c).

Edgar Arroyo
January 10, 2024

Page 4 ends

Second, the letter also states that, notwithstanding the clear applicability of the Builder’s Remedy, the Applicant must still file applications for discretionary legislative approvals that the City is legally prohibited from requiring for the Project:
“The City disagrees with the position that applications for a General Plan Amendment or Zone Change are not required, as detailed in the May 12, 2023 incomplete letter and provided below.

The City continues to believe it has the authority to require the applications to be filed and processed as part of an overall project, even if, assuming arguendo, that it may be constrained by state law in its ability to deny a project on consistency bases.

Under the Builder’s Remedy provision of the HAA, if a jurisdiction lacks a substantially compliant Housing Element, it cannot use its objective general plan, specific plan or zoning regulations to deny or render infeasible an affordable housing development project (i.e., a housing development project that provides at least 20 percent of the total units to lower income households, as defined by Health and Safety Code Section 50079.5). The City’s insistence that a General Plan Amendment and Zone Change application are required is incorrect given this State law standard, as the Project is not legally required to show conformance with the general plan or zoning per the HAA which controls over and supersedes the City’s local land use regulations. The City also cites the need to “ensure the due process rights of the surrounding property owners” as a reason to require additional General Plan Amendment and Zone Change entitlement applications. The Project’s DPR Application provides a clear and publicly noticed process through which surrounding property owners can be informed or engaged in the process, so this is not a valid reason to require additional entitlements.

Finally, the City has taken the stance that the Applicant is only provided with one 90-day time period during which the Applicant must respond perfectly to all of the items in the First Incomplete Letter in order to maintain vested rights. This cannot be the case as the HCA clearly establishes a more iterative process where more than one back-and-forth resubmittal is required to deem an application complete:
“(a) Not later than 30 calendar days after any public agency has received an application for a development project, the agency shall determine in writing whether the application is complete and shall immediately transmit the determination to the applicant for the development project.

If the written determination is not made within 30 days after receipt of the application, and the application includes a statement that it is an application for a development permit, the application shall be deemed complete for purposes of this chapter. Upon receipt of any resubmittal of the application, a new 30-day period shall begin, during which the public agency shall determine the completeness of the application. If the application is determined not to be complete, the agency’s determination shall specify those parts of the application which are incomplete and shall indicate the manner in which they can be made complete, including a list and thorough description of the specific information needed to complete the application. The applicant shall submit materials to the public agency in response to the list and description.”5 (Emphasis added).
5 Government Code Section 65943(a).

Edgar Arroyo
January 10, 2024

Page 5 ends

According to this statutory provision, the Applicant has the right and obligation to resubmit within 90 days and the City must then respond within 30 days each time the Applicant provides a resubmittal in response to a determination of incompleteness.

In light of the City’s repeated rejection of the DPR Application and the ongoing disagreement between the Applicant and the City about how to process the Builder’s Remedy aspect of the Project, it is clear that the parties have reached an irreconcilable impasse. After the Applicant’s multiple attempts to explain and clarify how the Builders Remedy provision applies to this Project and why local zoning rules are suspended given the lack of a substantially complaint Housing Element, it is now abundantly clear the City refuses to submit to State law. As such, the Applicant has exercised its right to file an appeal in accordance with the procedure established by Government Code Section 65943(c). The appeal again requests that the City recognize the continued validity of the HCA Preliminary Application and continue to process the DPR Application as a Builder’s Remedy request under the provisions of the HAA, without the need for a General Plan Amendment or Zone Change and without the need for compliance with the general plan or zoning code. The appeal was sent to the City via email on November 13, 2023 and the City responded to confirm the necessary filing fees and physical submittal requirements on November 20, 2023. The Applicant is paying the required appeal fee to the City by January 11, 2024.

Please be advised that pursuant to Government Code Section 65943(c), the City will have 60 days, or until Monday, March 11, 2024 to hold all required public hearings make a written determination on the appeal.6
As set forth in Attachment B, detailed written responses to each of the Second Incomplete Letter’s 38 comments are also being provided to the City, and Attachments C through H comprise all of the specific information identified as outstanding by the Second Incomplete Letter and needed to complete the DPR Application. Following its receipt of this timely transmittal, the City is obligated under State law to continue to process the Project’s DPR Application as filed and respond within 30 days.

Should the City make a determination on the appeal which recognizes that the Project has vested rights to be processed using only a DPR Application in conjunction with the Builder’s Remedy, this submittal should be utilized to continue review of the Project.

We emphasize that the Project materials have been modified in response to specific comments noted in the City’s Second Incomplete Letter other than those City comments requiring zoning code compliance or the need to file additional, unnecessary entitlements. Specifically, to be responsive and in the interest of completeness, the Applicant revised the Project plans to provide additional information, dimensions, and/or illustrations in response to the City’s requests for information necessary to process the DPR Application in accordance with the Builder’s Remedy request. The attachments provided with this submittal clearly indicate which objective general plan, specific plan or zoning regulations are not applicable to the Project. As noted in the First and Second Incomplete Letter, we again request the City to continue with its review and as a next step determine what type of environmental review should be required pursuant to the California Environmental Quality Act. The Applicant will provide additional materials and studies as determined to be appropriate at that time. 6 The start of the 60-day deadline will begin once the appeal fee is received and processed by the City.

Edgar Arroyo
January 10, 2024

Page 6 ends

Please contact us with any questions about this transmittal. Thank you.

Sincerely,
Dave Rand
Dave Rand
Partner
of RAND PASTER & NELSON, LLP
Attachments
A – Second Incomplete Letter
B – Written Responses to Second Incomplete Letter Comments C – Revised Project Plans including Survey and Landscape D – Existing Parking Covenant
E – Rooftop Operations Plan
F – Transportation Impact Analysis
G – Revised Geotechnical Report
H – Construction Management Plan with Staging Plan
ATTACHMENT 6
February 9, 2024
Incomplete Determination
(3rd Round)

1 Edgar Arroyo, Senior Planner
Community Development Department
SENT VIA EMAIL February 9, 2024
Dave Rand
Rand Paster & Nelson LLP
633 W. Fifth Street, 64th Floor
Los Angeles, CA 90071
[email protected]
RE: 125 – 129 South Linden Drive – Development Plan Review for Mixed Use Development (PL2300126) Dear Mr. Rand:

Staff has reviewed your application and materials for the Development Plan Review resubmittal received on January 10, 2024 for the proposed construction of a new mixed-use development at 125-129 South Linden Drive. The subject properties are located in the City’s R-4, Multiple Residential Zone, and High Density Multi-family residential General Plan land use designation. At this time, the application has been deemed incomplete for the reasons set forth below, and the previously filed Preliminary Application relating to the project site is deemed to be of no further effect due to changes in the project. Further, additional applications for amendments to the City’s General Plan and zoning ordinances are required to enable processing of the proposed project.

Appeal of October 13, 2023 Incomplete Determination
Prior to this January 10, 2024 project resubmittal, an appeal of the City’s October 13, 2023 incomplete letter was submitted on November 13, 2023; however, the appeal fee was not paid until January 11, 2024, which is considered the date that the appeal was filed. The appeal was filed pursuant to Government Code Section 65943(c), which enables an applicant to appeal the City’s determination that an application is incomplete to the City’s governing body. Pursuant to this section, the governing body is required to provide a final written determination within 60 days of receiving the appeal. On February 6, 2024, the City Council scheduled the appeal hearing for March 11, 2024.

1. Preliminary Application
As part of the resubmittal received on January 10, 2024, the materials included a response letter from Rand, Paster, Nelson LLP dated January 10, 2024 with Attachment B, which includes written responses to the incomplete letter issued by the City on October 13, 2023, and included the following response to this correction:
2 “The Project submitted with the HCA Preliminary Application consisted of a residential project that included 200 dwelling units within a 259,547 square foot, 16-story building. The DPR Project consists of a mixed-use development that includes 165 dwelling units and a 73-room hotel and hotel restaurant within a 311,197 square foot, 19-story building. The number of residential units was reduced from 200 in the HCA Preliminary Application to 165 in the DPR Project (a 17.5 percent decrease), and the square footage of construction was increased from 259,547 square feet in the HCA Preliminary Application to 311,197 square feet in the DPR Project (a 19.9 percent increase). These revisions are within the 20 percent threshold set forth in Government Code Section 65941.1, and do not require the Applicant to resubmit information required by Section 65941.1(a). Therefore, the vesting protections established by the HCA Preliminary Application continue to apply to the Project.”
The City disagrees with the position that the Preliminary Application submitted on October 24, 2022 remains valid, as detailed in the October 23, 2023 incomplete letter and provided below.

As stated in the prior letter, on October 24, 2022,1 the property owner (9300 Wilshire LLC) submitted a Preliminary Application pursuant to Government Code Section 65941.1 (the PA) for a housing development to vest the rights of a project under the ordinances, policies, and standards adopted and in effect at the time that the preliminary application was submitted. Thereafter, on April 14, 2023, the property owner submitted a formal Development Plan Review (DRP) application for a housing development project, which was within 180 days of the PA submittal date noted above as required to maintain the validity of the PA.

The DPR application describes a very different project:
“The project consists of the construction of a new 19-story mixed use, multifamily residential and hotel building, with 165 rental apartment units (including 33 affordable housing units) and ancillary residential spaces, 73 hotel rooms and ancillary hotel spaces, and 126 parking spaces.”
Based on the introduction of the new hotel use in the DPR project, which was not contemplated in the PA project, the Department continues to conclude that the DPR project submittal is for a project different from the PA project. Because the DPR project is substantially different from the project described in the PA, the Department continues to conclude that the DPR application, although filed within 180 days of the filing of the PA, is not sufficient to meet the filing requirement of Govt. Code Section 65941.1(d)(1). Therefore, the Department continues to find that the PA has expired and is of no further force or effect.

Further, as a separate and independent ground, the PA is expired and of no further effect because, for the reasons described below, the application remains incomplete. The January 10, 2024 resubmittal materials did not include all of the necessary information required in order to deem the application complete, and any subsequent submittals in response to this incomplete letter will necessarily be submitted well outside of the 90 days period following the City’s initial incompleteness letter dated May 12, 2023. Thus the application submittals have not and cannot meet the requirements of Govt. Code Section. 65941.1(d)(2).

Your letter of January 10, 2024, asserts that the applicant is entitled to a rolling 90-day period after each incompleteness determination, however, the text of Govt. Code Section 65941.1(d)(2) is different from the text of Govt. Code Section 65943(a) cited in your letter. Section 65943(a), expressly states that resubmittals begin a new 30-day review period, whereas the text of Section 65941.1(d)(2) is framed as a singular 90-day period. If the legislature intended the 90-day period in Section 65941.1(d)(2) operate in the same manner as the 30-day review periods under Section 65943(a), they clearly could have said so. They did not.

4 2. General Plan Amendment and Zoning Amendment Applications Required The materials provided in the January 10, 2024 resubmittal of the project included a response letter dated January 10, 2024, with Attachment B that includes the following response to this comment/correction:
“The Applicant respectfully disagrees with the City’s position that additional entitlements are required and that the Preliminary Application is expired. The applicant has filed an appeal pursuant to Government Code Section 65943 so that this issue may be resolved via City Council decision or through subsequent legal action.”
The City continues to disagree with the position that applications for a General Plan Amendment or Zone Change are not required, as detailed in the May 12, 2023 incomplete letter and reiterated in the October 13, 2023 incomplete letter, as provided below. The City continues to maintain that it has the authority to require the applications to be filed and processed as part of an overall project, even if, assuming arguendo, that it may be constrained by state law in its ability to deny a project on consistency bases.

Comments from May 12, 2023 Incomplete Letter (Reiterated in October 13, 2023 Incomplete Letter) The proposed DPR project does not conform to the City’s General Plan and various provisions of the City’s zoning code. These deviations include, but are not limited to that:
• Neither a hotel nor a mixed residential/commercial use project is a permissible use in either the High Density Multifamily Residential General Plan land use designation or the R-4 zoning applicable to the project site.
• The proposed height exceeds the maximum permissible heights allowed in the General Plan and R-4 zoning
• The proposed residential density exceeds the maximum allowed density on the site.

5 Following the proper amendment process, in addition to the DPR process, is critical to, among other considerations, ensuring that the due process rights of surrounding property owners are respected, and that those property owners may participate in the proceedings, including required public hearings, should they so choose.

3. Land Use – Sheets A01, A06, A07, A14, A15, A16, A17, A28, A29, A30, A31, A32, L1.10, and L1.13 The materials provided in the January 10, 2024 resubmittal of the project included a response letter dated January 10, 2024, with Attachment B that includes the following response to this comment/correction:
“The Applicant respectfully disagrees with the City’s position that additional entitlements are required and that the Preliminary Application is expired. The applicant has filed an appeal pursuant to Government Code Section 65943 so that this issue may be resolved via City Council decision or through subsequent legal action.”
For the reasons noted above, the City disagrees with the position that applications for a General Plan Amendment or Zone Change are not required to facilitate commercial uses on a residentially zoned lot, as detailed in the May 12, 2023 incomplete letter, reiterated in the October 13, 2023 incomplete letter, and provided below.

Comments from May 12, 2023 Incomplete Letter (Reiterated in October 13, 2023 Incomplete Letter) The project site is located within the City’s R-4 Zone, and the High Density Multi-family Residential General Plan land use designation. BHMC Sections 10-3-1202 and 10-3-1203 detail the types of permitted and conditionally permitted uses within the R-4 Zone. As proposed, the DPR project2 consists of a mixed-use development that includes 165 dwelling units and a 73-room hotel and hotel restaurant. While residential development is permissible within the R-4 Zone and the High Density Multi-family Residential General Plan land use designation, subject to the applicable development standards, as noted above, mixed-use developments, including hotel and hotel restaurant uses, are not permissible in the R-4 Zone or the High Density Multi-family Residential General Plan land use designation.

4. Density – Sheet A01
The materials provided in the January 10, 2024 resubmittal of the project included a response letter dated January 10, 2024, with Attachment B that includes the following response to this comment/correction:
2 Hereafter, the word “project” refers to the DPR project, unless otherwise noted.

6 “The Applicant respectfully disagrees with the City’s position that additional entitlements are required and that the Preliminary Application is expired. The applicant has filed an appeal pursuant to Government Code Section 65943 so that this issue may be resolved via City Council decision or through subsequent legal action.”
For the reasons provided above, the City disagrees with the position that applications for a General Plan Amendment or Zone Change are not required to facilitate a project that exceeds the allowable density for a project site, as detailed in the May 12, 2023 incomplete letter and reiterated in the October 13, 2023 incomplete letter, as provided below.

Comments from May 12, 2023 Incomplete Letter (Reiterated in October 13, 2023 Incomplete Letter) The proposed project includes the development of 165 dwelling units on a 21,676.05 square-foot (SF) project site. The application materials submitted for this project note that the proposed project is not a density bonus project and is not seeking incentives, concessions, and/or waivers, or any subdivision which may be contemplated to separate the hotel uses from the residential uses. Specifically, as to density bonus, the PA specifically says “The project does not include a density bonus request under State Density Bonus Law”.

Fractional figures are rounded up to the nearest whole number.

As designed, the project exceeds the maximum number of allowable units by over 140 dwelling units.

Revise the project with a reduction in proposed units to comply with applicable density requirements.

Additionally, Sheet A01 of the set of plans submitted on January 10, 2024 lists an additional unit on the Project Information sheet. The "RESIDENTIAL UNIT COUNT" table now lists a "CORR" unit, which increases the unit total on the table by one (1) additional unit, from 165 to 166.

However, this "CORR" unit does not appear to be shown on any residential floor plan (Sheets A17 - A24). Additionally, the rest of the project information on Sheet A01 has multiple references to the project only having 165 units, not 166.

7 Verify the proposed number of dwelling units for the project and update the set of plans accordingly. Additionally, clearly call out the "CORR" unit on the floor plans for the project, if applicable.

5. Minimum Floor Area for Dwelling Units – Sheet A01 and Sheets A16 A17 through A23 The materials provided in the January 10, 2024 resubmittal of the project included a response letter dated January 10, 2024, with Attachment B that includes the following response to this comment/correction:
“The Applicant respectfully disagrees with the City’s position that additional entitlements are required and that the Preliminary Application is expired. The applicant has filed an appeal pursuant to Government Code Section 65943 so that this issue may be resolved via City Council decision or through subsequent legal action.”
The City disagrees with the position that adherence to the standards for minimum floor area for dwelling units is not required, as detailed in the May 12, 2023 incomplete letter and reiterated in the October 13, 2023 incomplete letter, as provided below.

Comments from May 12, 2023 Incomplete Letter (Reiterated in October 13, 2023 Incomplete Letter) BHMC Section 10-3-2802 details the applicable minimum dwelling unit requirements for new development on properties located within the City’s R-4 Zone. The applicable minimum dwelling unit size are as follows:
• Studio/Efficiency Unit: Minimum floor area of 600 SF
• One Bedroom Unit: Minimum floor area of 1,000 SF
• Two Bedroom Unit: Minimum floor area of 1,300 SF
• Three Or More Bedroom Unit: Minimum floor area of 1,500 SF In review of the set of plans, the residential portion of the project consists of 165 dwelling units with a mix of 13 studio, 59 one-bedroom, and 93 two-bedroom units. As noted on Sheet A01, the average size of a studio unit is between 450 SF and 486 SF, the average size of a one-bedroom unit is between 652 SF and 658 SF, and the average size of a two-bedroom unit not located on the penthouse level (19th floor) is between 892 SF to 970 SF. As such, these units do not appear to provide the applicable minimum floor area for an efficiency, one-bedroom, or two-bedroom unit. Revise the project and design of each unit to provide the minimum floor area required.

6. Outdoor Living Space – Sheets A01, A08, and A09
The materials provided in the January 10, 2024 resubmittal of the project included a response letter dated January 10, 2024, with Attachment B that includes the following response to this comment/correction:
“The Applicant respectfully disagrees with the City’s position that additional entitlements are required and that the Preliminary Application is expired. The applicant has filed an appeal

8 pursuant to Government Code Section 65943 so that this issue may be resolved via City Council decision or through subsequent legal action.”
The City disagrees with the position that adherence to the outdoor living space requirements is not required, as detailed in the May 12, 2023 incomplete letter and reiterated in the October 13, 2023 incomplete letter, as provided below.

Comments from May 12, 2023 Incomplete Letter (Reiterated in October 13, 2023 Incomplete Letter) a. Required Outdoor Living Space – BHMC Section 10-3-2803 details the applicable open space requirements for new development on properties located within the City’s R-4 Zone. Pursuant to this section, 200 SF of outdoor living space is required per dwelling unit. The required outdoor living space can be provided as private outdoor living space with a minimum dimension of 6’-0” on all sides, or as common outdoor living space with a minimum dimension of 15’ on all sides.

While the proposed development of 165 dwelling units exceeds the density allowed for the project site, should the applicant seek a zone change/general plan amendment to facilitate the project, the project would need to provide 33,000 SF of open space. As provided on the Open Space tables on Sheets A01, A08, and A09, the proposed project is proposing 18,228 SF of open space, which is approximately 14,772 SF less than what is otherwise required. Revise the project to provide the applicable area of outdoor living space per unit.
b. Outdoor Living Space Dimensions – Pursuant to BHMC Section 10-3-2803, outdoor living space can be provided as private outdoor living space with a minimum dimension of 6’-0” on all sides, or as common outdoor living space with a minimum dimension of 15’ on all sides. Based on the Open Space tables provided on Sheets A08 and A09, it appears that the project is providing open space in both common and private outdoor living areas. While the 18,228 SF of proposed outdoor living area is not sufficient to meet the required outdoor living space required per unit (33,000 SF of outdoor living space is required for 165 dwelling units), the open space diagrams provided do not include any dimensions to show that the minimum outdoor living space dimensions are being provided. Revise the open space diagrams to include the dimensions of each proposed common and private outdoor living space areas. Each area shall provide the minimum dimensions required to count toward the required outdoor living space.
c. Number of Dwelling Units – This has been corrected on the set of plans submitted on January 10, 2024.

The number of dwelling units noted on the Open Space tables provided on Sheets A01, A08, and A09 do not match the number of units proposed for the project. The Open Space tables show that 171 dwelling units are proposed, while the plans for the project show a total of 165 dwelling units proposed. Revise the tables according to reflect the correct number of proposed units. Revise the amount of required open space to reflect the correct unit count.

9 7. Building Height – Sheets A01, A11, A24, A25, A26, A27, A28, A29, A30, and A31, and A32 The materials provided in the January 10, 2024 resubmittal of the project included a response letter dated January 10, 2024, with Attachment B that includes the following response to this comment/correction:
“The Applicant respectfully disagrees with the City’s position that additional entitlements are required and that the Preliminary Application is expired. The applicant has filed an appeal pursuant to Government Code Section 65943 so that this issue may be resolved via City Council decision or through subsequent legal action.”
The materials included new plan sheets in this round of review where comments/corrections from the city have been provided regarding building height. The City disagrees with the position that adherence to the height requirements is not required, as detailed in the May 12, 2023 incomplete letter and reiterated in the October 13, 2023 incomplete letter, as provided below.

Comments from May 12, 2023 Incomplete Letter (Reiterated in October 13, 2023 Incomplete Letter) a. Maximum Allowable Height – The project site is comprised of two properties located within the City’s R-4 Zone. BHMC Section 10-3-2804 details the applicable height requirements for properties located in the R-4 Zone. The first property at 125 S. Linden Drive is located within Height District C, which allows for development up to five (5) stories with a maximum height of 55’. The second property at 129 S. Linden Drive is located within Height District B, which allows for development up to four (4) stories with a maximum height of 45’.

10 and if such enclosure is not more than twelve feet (12') in height as measured from the adjacent roof deck.
• Penthouse structures used exclusively for mechanical equipment for the building or structure if such penthouse structure is not more than ten feet (10') in height as measured from the adjacent roof deck.
• Parapets or handrails not more than forty-five inches (45") in height as measured from the roof or floor which they surround.
c. Mechanical Equipment Screening – Show the proposed rooftop mechanical equipment screening on all sections and elevations, as the proposed screening is not shown on the sections and elevations provided. Pursuant to BHMC Section 10-3-100 (Height), the max height is 15'-0" for mechanical equipment penthouses and enclosures.

8. Alley Dedication – Sheets A11 through A29 A15 and L1.10 through L1.15 Sheets A11 though A29 have been updated to reflect the required alley dedication on the north side and rear. However, the new The landscape plans submitted for this second third round of review (Sheets L1.10 and L1.13 – L1.15) do not have these dedication areas shown and show landscaping and site paving in the required alley dedication area. Revise the landscape plans accordingly per the city’s correction. issued on May 12, 2023 and as listed below.

The set of plans submitted on January 10, 2024 still show landscaping in the 2’-6” alley dedication area where the alley would be, which is not allowable. The alley surface shall be paved with asphaltic concrete for vehicle use. Revise accordingly.

9. Setbacks – Sheets A01, and A11 A12 through A32 A29, A30, A31, and L1.10 through L1.15 The materials provided in the January 10, 2024 resubmittal of the project included a response letter dated January 10, 2024, with Attachment B that includes the following response to this comment/correction:
“The Applicant respectfully disagrees with the City’s position that additional entitlements are required and that the Preliminary Application is expired. The applicant has filed an appeal

11 pursuant to Government Code Section 65943 so that this issue may be resolved via City Council decision or through subsequent legal action.

While the Project need not adhere to the exact Modulation standards of the zoning code given the “Builder’s Remedy” provision of the HAA, A10 has nevertheless been added to demonstrate and clarify the proposed modulation for informational purposes.” The materials submitted on January 10, 2024 included new plan sheets in this round of review where comments/corrections from the city have been provided regarding required setbacks and modulation.

The City disagrees with the position that adherence to the setback and modulation requirements is not required, as detailed in the May 12, 2023 incomplete letter and reiterated in the October 13, 2023 incomplete letter, as provided below.

Comments from May 12, 2023 Incomplete Letter (Reiterated in October 13, 2023 Incomplete Letter) a. Front Setback – The applicable front yard setback for the project site is 15’-0”. As designed, portions of the proposed building located above ground level would encroach into the required setback.

As proposed, complete sections of the building on almost every floor level appear to encroach into the required front yard setback, with a seven-inch (7”) setback shown on the site plan provided on Sheet A11 A12 of the set of plans. Such building encroachment is not permissible within the front yard setback area.

Revise the project to provide the applicable 15’-0” front setback for the project. b. Side Yard Setbacks – BHMC Section 10-3-2807 details the applicable side yard setbacks for properties located within the City’s R-4 Zone. Pursuant to this section, the development of a project with more than four (4) stories or greater than 45’ in height shall be subject to a cumulative setback of 23’-0’, with a minimum setback of at least 9’ required on one side. When a project is subject to a dedication of land required for improving and widening existing alleys adjacent to the project site, the equireed setback shall be measured from the adjusted property line post-alley dedication.

12 improving and widening existing alleys adjacent to the project site, the required setback shall be measured from the adjusted property line post-alley dedication.

Revise the project to provide the applicable 15’-0” rear yard setback to the project. d. Setbacks Throughout Plan Set – Show all applicable front, side, and rear setback lines on the site plan, floor plans, sections, and elevation on the set of plans. These details are missing from several sheets of the plan set.
e. Garage Encroachment in Front Setback – Pursuant to BHMC Section 10-3-2811, basement garages are allowed to encroach into the front yard setback area. However, as designed, the portion of the basement garage built into these setback areas needs to be 2’-0” lower than the grade of the adjacent sidewalk. Additionally, that 2’-0” depression shall be used to provide planting areas within the front yard setback area.

As shown on Section 2 on Sheet A29 A30, the portion of the basement garage within the front yard setback is currently designed to be at the same level as the adjacent sidewalk along South Linden Drive, which is not permissible. Revise the design of the basement garage that encroaches into the front yard setback area so that it is 2’-0” lower than the adjacent sidewalk along South Linden Drive. f. Modulation – An elevation/diagram noting the depth of modulation on the front facade was provided as Sheet A10 in this plan set submitted on January 10, 2024. This exhibit, however, does not provide calculation or figures noting the required area of modulation or the area of modulation proposed.

As previously noted, BHMC Section 10-3-2806 details the applicable front modulation standards for properties located within the City’s R-4 Zone. In review of the set of plans provided, no details were included as to the amount of front building modulation provided for the project. As a separate exhibit to the set of plans, pProvide front modulation diagrams showing the required amount of modulation required and the modulation proposed for the project. Additionally, the diagrams shall show the depth of the modulation provided per floor and calculations for the aggregate principal building area. The depth of the modulation is not shown on the front building modulation exhibit provided on Sheet A10 of the set of plans.

Adjust the project design accordingly to provide the applicable front modulation for the project pursuant to BHMC Section 10-3-2806.

13 10. “NO BUILD ZONE” Area – Sheets A12 and A13
Area of no build zone added to the set of plans.

11. Front Yard Paving – Sheets A14 A15, L1.10 and L1.13 The materials provided in the January 10, 2024 resubmittal of the project included a response letter dated January 10, 2024, with Attachment B that includes the following response to this comment/correction:
“The Applicant respectfully disagrees with the City’s position that additional entitlements are required and that the Preliminary Application is expired. The applicant has filed an appeal pursuant to Government Code Section 65943 so that this issue may be resolved via City Council decision or through subsequent legal action.”
The materials included changes to previously provided plan sheets in this round of review where comments/corrections from the city have been provided regarding front yard paving. The City disagrees with the position that adherence to the front yard paving requirements is not required, as detailed in the May 12, 2023 incomplete letter and reiterated in the October 13, 2023 incomplete letter, as provided below.

Comments from May 12, 2023 Incomplete Letter (Reiterated in October 13, 2023 Incomplete Letter) BHMC Section 10-3-2813 details the applicable front yard paving standards for properties located within the City’s R-4 Zone. Pursuant to this section, no portion of any front yard within the R-4 Zone shall be paved, except for not more than one walkway not exceeding five feet (5’) in width and one driveway not exceeding the width of its curb cut. Based on the design provided on Sheet A14 A15, the project includes a paved courtyard and walkway to the north side of the property. No driveway paving is proposed within the front yard setback area. Together, these walkways exceed the maximum allowable width for walkways located in the front yard setback area.

Additionally, as a result of changes to the paving area provided in the January 10, 2024 submittal, the design of the front yard paving adjacent to the hotel lobby on the landscape plan does not appear

14 to match the design shown on the 1st floor plan on Sheet A15. Sheet A15 shows a larger paving area with what appears to be bicycle racks installed. This landscape sheet is missing those details and the additional paving. Revise the plans accordingly to be consistent.

12. Site Walls and Fences – Sheets A11, A14, L1.10, and L1.13 Details for the proposed fence at the rear of the property have been provided on Sheet A36 of the set of plans submitted on January 10, 2024. Sheet A36 shows a 6’ tall fence that is in compliance with applicable fence requirements.

Comments from May 12, 2023 Incomplete Letter (Reiterated in October 13, 2023 Incomplete Letter) Show all proposed site fences and walls on the site plan for the project. Provide additional details and sections on the set of plans showing the design and height of any proposed fences and walls. All site fences and walls shall be designed in conformance with the applicable fence/wall standards provided in BHMC Section 10-3-2814.

13. Parking – Sheets A01, A12 and A13 and A14
The materials provided in the January 10, 2024 resubmittal of the project included a response letter dated January 10, 2024, with Attachment B that includes the following response to this comment/correction:
“In this comment, the City restates parking requirements for the proposed uses specific to Residential Parking, Guest Parking, Hotel and Hotel Restaurant Parking, Parking Stall Dimension, and Parking Aisle Depth. The Applicant respectfully disagrees with the City’s position that adherence to these zoning standards is required. The applicant has filed an appeal pursuant to Government Code Section 65943 so that this issue may be resolved via City Council decision or through subsequent legal action.
15 As further clarification to the original response to this item, the Project itself is not seeking and does not require a reduction in parking using Assembly Bill 2097 (“AB 2097”). However, the Applicant proposes to apply the parking reductions of AB 2097 to the adjacent office building, which currently uses the existing parking located on the Project site. The City claims that AB 2097 cannot be applied to reduce parking at the office building at 9740 Wilshire Boulevard because a parking covenant was recorded to provide a portion of the required office building parking offsite at 125 Linden Drive. The Applicant disagrees with this claim. AB 2097 (Government Code Section 65863.2(h)(1)) states “Subdivision (a) shall not apply to commercial parking requirements if it conflicts with an existing contractual agreement of the public agency that was executed before January 1, 2023, provided that all of the required commercial parking is shared with the public. This subdivision shall apply to an existing contractual agreement that is amended after January 1, 2023, provided that the amendments do not increase commercial parking requirements.

The existing, recorded parking covenant is not a “contractual agreement” (such as a Development Agreement) that requires the commercial parking to be shared with the public and is not subject to this limitation in AB2097. The covenant, as recorded, states Lots 38 and 39 of Tract 6648 (125 Linden Drive) are to be used for parking of automobiles servient to the structure proposed to be built on and servient to Lots 35 and 36 of Tract 6648 (9740 Wilshire Boulevard), for the use and benefit of “owners, tenants, customers, and invitees of the occupants of said structure.” The covenant does not require the parking to be shared with the public. As such, the office building at 9740 Wilshire Boulevard qualifies as a commercial development project which is eligible to use the parking reductions provided by AB 2097.

At the time that the City confirms that the DPR application may proceed, the Applicant will initiate the necessary request to apply the AB 2097 parking reduction to 9740 Wilshire Boulevard and terminate the parking covenant. As described above, the new Project at 125-129 Linden Drive is not subject to the parking requirements of the Zoning Code and does not seek any parking relief from AB 2097.

Furthermore, the Project is an “affordable housing development” under the HAA which means it includes 20 percent of the total units for deed restricted Low Income Housing. The provision of Low Income units entitles the Project to incentives, concessions and/or waivers of development standards under the State Density Bonus Law (i.e., California Government Code Section 65915, et. seq.). The Applicant therefore reserves the right to utilize permitted incentives and/or waivers as another, separate legal mechanism to eliminate parking requirements to (i) produce project cost reductions that allow for the provision of the Project’s affordable housing units (i.e., incentive/concession) or (ii) that would have the effect of physically precluding development of the Project (waivers). While we do not believe State Density Bonus Law incentives and/or waivers are legally necessary to provide the required parking relief necessary to construct the Project given the flexibility afforded by both the “Builders Remedy” provision of the HAA and AB2097 as described above, we nevertheless reserve the right to request incentives/concessions/waivers from existing parking requirements as permitted by the State Density Bonus Law.”

16 The City disagrees with the position that adherence to the parking standards is not required and that replacement parking for the site at 9740 Wilshire Boulevard is not required, as detailed in the May 12, 2023 incomplete letter and reiterated in the October 13, 2023 incomplete letter, as provided below.

Further, we note that the provisions of Assembly Bill 2097 do not apply to this project because the project includes a hotel component. (Cal. Govt. Code Sec. 65863.2(e)(6).) The applicant response also suggests that incentives of wavier provisions under State Density Bonus law may be invoked, however, the Preliminary Application clearly states that this is not a density bonus project.

Comments from May 12, 2023 Incomplete Letter (Reiterated in October 13, 2023 Incomplete Letter) a. Residential Parking – BHMC Section 10-3-2816 details the applicable parking standards for properties located within the City’s R-4 Zone. Pursuant to this section, the project shall provide the following number of parking spaces per dwelling unit type:
• One (1) parking space shall be provided for each multiple-family dwelling unit that is an efficiency unit of less than one thousand (1,000) square feet. • Two (2) spaces shall be provided for each multiple-family dwelling unit that contains one bedroom.
• Two and one-half (2 ½) parking spaces shall be provided for each multiple-family dwelling unit that contains two (2) bedrooms.

Revise the project to provide the required number of guest parking spaces. Clearly call out which parking spaces for the project are being allocated for only guest parking.

17 c. Hotel and Hotel Restaurant Parking – While previously noted that the hotel and hotel restaurant uses proposed for this project are not permissible within the R-4 Zone, should the applicant seek a Zone Change/General Plan Amendment to facilitate the proposed commercial uses, such uses shall be designed in compliance with the applicable parking requirements detailed in BHMC Section 10- 3-2730. Such parking shall be provided on-site.

Based on the plans provided, a 73-room hotel would require 73 parking spaces (1 space/room).

As designed, the parking garage for the development does not currently provide parking for the commercial uses of the project. Each space is labeled as “RES”, implying that the parking spaces are reserved for the residential uses of the project and not available to service the proposed hotel and hotel restaurant uses. Should the applicant seek a Zone Change/General Plan Amendment for consideration of this project, parking for the proposed hotel and hotel restaurant uses shall be provided on-site.
d. Parking Stall Dimensions – The City’s parking standards require all parking spaces provided for a project to be provided in standard configuration, with a minimum parking stall width of 9’-0” and a length of 19’-0”. Compact parking stall dimensions are not allowable for any required parking stall associated with the residential use of the property. However, pursuant to BHMC Section 10-3- 2727, the proposed hotel use may provide up to 25% of the required parking as compact parking stalls and through tandem spaces as part of a Conditional Use Permit.

Revise the design of the parking aisle width to provide the 26’-0” wide minimum aisle width.

18 f. Garage Encroachment into Alley Dedication Area – Correct addressed. Basement garage no longer encroaches into alley dedication area.

As designed, the basement garage would encroach into the 2’-6” alley dedication area required along the north side and rear of the property. The garage cannot encroach into the required alley dedication area. Revise the design of the parking garage so that no portions of the building encroach into the required alley dedication areas.
g. Replacement Parking for 9740 Wilshire Blvd
The materials provided in the January 10, 2024 resubmittal of the project included a response letter dated January 10, 2024, with Attachment B that includes the following response to this comment/correction:
“The existing, recorded parking covenant is not a “contractual agreement” (such as a Development Agreement) that requires the commercial parking to be shared with the public and is not subject to this limitation in AB2097.. The covenant, as recorded, states Lots 38 and 39 of Tract 6648 (125 Linden Drive) are to be used for parking of automobiles servient to the structure proposed to be built on and servient to Lots 35 and 36 of Tract 6648 (9740 Wilshire Boulevard), for the use and benefit of “owners, tenants, customers, and invitees of the occupants of said structure.” The covenant does not require the parking to be shared with the public. As such, the office building at 9740 Wilshire Boulevard qualifies as a commercial development project which is eligible to use the parking reductions provided by AB 2097.” First, as noted above, Assembly Bill 2097 does not apply to this project because the project includes a hotel component. (Cal. Govt. Code Sec. 65863.2(e)(6).) Thus, the City disagrees with the position that AB 2097 impacts the obligation to provide replacement parking for 9740 Wilshire Blvd, as detailed in the May 12, 2023, incomplete letter and provided below. Furthermore, even if AB 2097 did apply, pursuant to Government Code Section 65863.2(h)(1), the city retains the ability to enforce a covenant or contractual agreement for parking. As noted in the city’s May 12, 2023, incomplete letter, “…a parking covenant was filed with the city and recorded on August 12, 1957, against the properties at 9740 Wilshire Blvd and 129 S. Linden Drive to provide a portion of the required parking off-site. The use of the 129 South Linden Drive site for commercial parking purposes was approved through Variances issued by the City Council in 1941 and 1958 (City Council Resolution Nos. 1061 and 2841).”
The City disagrees that the existing covenants for parking associated with 9740 Wilshire Boulevard do not constitute a contractual agreement that is enforceable pursuant to AB 2097.

Comments from May 12, 2023 Incomplete Letter (Reiterated in October 13, 2023 Incomplete Letter)
The project site at 129 S. Linden Drive is currently improved with a surface parking lot that provides required parking for the commercial office building located at 9740 Wilshire Blvd. The original building plans for the commercial building at 9740 Wilshire Boulevard show that the surface

19 parking lot at 129 S. Linden Drive was designed with diagonal parking for 50 vehicles. To facilitate this, a parking covenant was filed with the city and recorded on August 12, 1957, against the properties at 9740 Wilshire Blvd and 129 S. Linden Drive to provide a portion of the required parking off-site. The use of the 129 South Linden Drive site for commercial parking purposes was approved through Variances issued by the City Council in 1941 and 1958 (City Council Resolution Nos. 1061 and 2841).

14. Loading – Sheets A06, A14, L1.10, and L1.13 A15
The materials provided in the January 10, 2024 resubmittal of the project included a response letter dated January 10, 2024, with Attachment B that includes the following response to this comment/correction:
“The Applicant respectfully disagrees with the City’s position that additional entitlements are required and that the Preliminary Application is expired. The applicant has filed an appeal pursuant to Government Code Section 65943 so that this issue may be resolved via City Council decision or through subsequent legal action.

The Applicant is providing additional notations showing the loading space on Sheet A15.” The materials included revised new plan sheets in this round of review where comments/corrections from the city have been provided regarding the proposed loading area. The City disagrees with the position that adherence to the loading requirement is not required, as detailed in the May 12, 2023 incomplete letter and reiterated in the October 13, 2023 incomplete letter, as provided below. In addition, the loading study and maneuvering information is necessary to disclose the potential effects of the project and to provide decision-makers adequate information to conduct the required discretionary review of the project.

20 Comments from May 12, 2023 Incomplete Letter (Reiterated in October 13, 2023 Incomplete Letter) a. Number of Loading Spaces Required – BHMC Sections 10-3-2740 [through] 10-3-2743 detail the applicable loading space requirements. Based on the area schedule provided on Sheet A06, approximately 48,032 SF of floor area is proposed for use as hotel and hotel restaurant on the first and second floors. Pursuant to BHMC Section 10-3-2741, the number of loading spaces required for the proposed commercial floor area is three (3) truck spaces. Each truck loading space shall have a minimum length of 35’, width of 12’, and overhead clearance of 10’.

Revise the project to provide the applicable number of loading spaces at the required minimum dimensions.

The revised plans submitted on January 10, 2024 now show three (3) truck-size loading spaces that would be accessible from the alley at the rear of the property, in compliance with the applicable loading requirements.
b. Loading Study – Provide a loading study that evaluates the loading demands of the proposed project and determines the adequacy of the loading areas proposed. The loading study shall also study vehicle maneuverability into the proposed loading areas, particularly truck maneuverability for accessing the loading space located adjacent to the alley at the rear, as it appears difficult to maneuver a truck in the alley due the existing width. The existing alley measures 15’ in width, but would be widened to 17’-6” feet once the project dedicates land along the alleys.

Additionally, the new design of the loading area provided on Sheet A15 shows three (3) new truck loading spaces at the rear of the property. The Loading Study shall also evaluate this new proposed design and evaluate the feasibility that trucks are able to maneuver in the alley, as this alley forms a “T-intersection” to the north with a 15’ wide alley where trucks may have difficulty turning to exit to the street.
c. Location of Loading Spaces – Pursuant to BHMC Section 10-3-2742, when a project site or structure abuts an alley, access to loading spaces shall be provided from the alley. Alley accessed loading spaces shall be parallel to the alley unless the project applicant establishes one of the following:
• Site constraints preclude construction of a parallel loading space or spaces; or, • The alternative loading space configuration proposed by the project applicant meets the functional requirements of the code.

21 As currently designed, the loading space provided on Sheet A14, is perpendicular to the alley instead of parallel to it. Revise the project to include the required loading spaces in compliance with BHMC Section 10-3-2742. If this cannot be achieved and the applicant is seeking an alternative configuration, provide findings as noted above detailing site constraints and how the alternative loading space will meet the functional requirements of the code.

The project has been redesigned on the set of plans submitted on January 10, 2024 to show loading accessed from the alley at the rear that is parallel to the existing alley, in compliance with BHMC Section 10-3-2742.
d. Maneuvering – Pursuant to BHMC Section 10-3-2740, loading spaces shall be directly accessible for the distribution of goods within the structure or use. For multi-story structures, such access shall be direct to an elevator or stairway serving all stories, and in this case, all stories of the hotel and hotel restaurant. In order to meet the functional requirements, loading spaces shall have a minimum maneuvering area as specified in the MINIMUM STANDARDS FOR LOADING SPACES table in BHMC Section 10-3-2740. Said maneuvering area shall be contiguous to the end of the loading space and may include the width of the alley or street.

Provide maneuvering diagrams showing truck ingress and egress to the loading spaces provided for the project.

The project has been redesigned on the set of plans submitted on January 10, 2024 to show loading accessed from the alley at the rear that meeting the maneuvering dimension required, in compliance with BHMC Section 10-3-2740.

16. Title Report – Sheet A10
Title report provided with resubmittal. No easements recorded against property per title report.

22 Provide a Title Report of the project site to verify whether any easements exist on the properties at 125 and 129 S. Linden Drive. The survey provided on Sheet A10 notes that there are no easements on the project site, “per referenced preliminary title report.” However, a copy of this title property was not provided. Provide a title report of the project site with project resubmittal.

17. Elevations and Renderings – Sheets A00, A02, A03, A04, A24, A25, A26, and A27, and A28 The materials provided in the January 10, 2024 resubmittal of the project included a response letter dated January 10, 2024, with Attachment B that includes the following response to this comment/correction:
“The Applicant respectfully disagrees with the City’s position that additional entitlements are required and that the Preliminary Application is expired. The applicant has filed an appeal pursuant to Government Code Section 65943 so that this issue may be resolved via City Council decision or through subsequent legal action.

Renderings and elevations have been provided to show the project as proposed.” The City disagrees with the position that adherence to the city’s development standards is not required, as detailed in the May 12, 2023 incomplete letter and reiterated in the October 13, 2023 incomplete letter, as provided below.

Comments from May 12, 2023 Incomplete Letter (Reiterated in October 13, 2023 Incomplete Letter) Revise the elevations and renderings provided for the project, as required, to address the corrections and comments provided in this review letter and the redlined set of plans.

Additionally, based on changes on the set of plans submitted on January 10, 2024, it doesn't appear that the building elevations have been updated to account for the changes in the loading zone, trash area and transformer room on the west elevation on Sheet A27. The plan set from the October 13, 2023 submittal showed 6 doors on the west elevation and this current set of plans shows the same.

However, the first floor plan clearly shows less doors and the placement has changed with the changes to the trash area and transformer room. There are now only five (5)doors. Revise the west elevation accordingly.

Lastly, Sheet A28, which is the south elevation of the building, is missing from the set of plans submitted on January 10, 2024. Provide this plan sheet an elevation with resubmittal for review.

18. Floor Plan Layouts for Dwelling Units – Sheets A16 through A23 The floor plans have been revised to provide the interior layout of each unit. Correction addressed by applicant.

23 provided. The floor plans shall show the proposed kitchen, bathroom, bedroom, and living area of each of the proposed dwelling units.

19. Rubbish Storage – Sheets A14 A15 and A36, L1.10, L1.13 The materials provided in the January 10, 2024 resubmittal of the project included a response letter dated January 10, 2024, with Attachment B that includes the following response to this comment/correction:
“The Rubbish Storage calculations are included with this resubmital on Sheet A15. A specification has been added for the trash compactor on Sheet A36.”
The set of plans submitted on January 10, 2024 show an enlarged rubbish room, along with calculations showing the required amount of rubbish spaces required on A15. However, there appears to be an error in the calculations provided, as the residential portion of the calculation only factors in 63 units instead of the 73 units proposed (10 units short). Revise the rubbish room calculations to account for the correct number of proposed dwelling units.

The City requires this information to be provided at this stage to determine if the required amount of rubbish storage is being provided for the project. Please provide this requested information to verify compliance with the applicable requirement, as detailed in the May 12, 2023, incomplete letter and provided below.

Comments from May 12, 2023 Incomplete Letter
BHMC Section 9-3-1 details the applicable rubbish storage standards for residential and commercial development. As proposed, the project would include a 592 SF trash room located in the first floor of the building, adjacent to the alley at the rear. However, calculations were not provided on the set of plans or in the application materials to demonstrate that the proposed trash room is of sufficient size to accommodate the anticipated demand for waste generated by the project site.

20. Landscape Plans – Not Provided Sheets L1.00 through L1.15 Landscape plans provided for review. Please review the other sections of this letter for comments and corrections applicable to the landscape plans, along with the redlined set of plans for this round of review. Also note that the alley dedication area is not shown on these plans. Instead, tThe landscape plans show landscaping and project site hardscaping in the future alley area. The area to be dedicated for widening of the alley shall be paved with a surface approved by the Public Works Department for alleys, which is generally asphaltic concrete.

24 The set of plans submitted on January 10, 2024 still show landscaping in the 2’-6” alley dedication area where the alley would be, which is not allowable. The alley surface shall be paved with asphaltic concrete for vehicle use.

Revise the landscape plans accordingly.

Provide landscape plans of the proposed project with resubmittal. The landscape plans shall show all proposed landscaping improvements on the project site and in the public right-of-way.

22. Low Impact Development (LID)
To be provided in Building Plan Check.

Pursuant to BHMC Section 9-4-508, the City’s Low Impact Development (LID) requirements are applicable to new developments projects.

A copy of the Low Impact Development (LID) Fact Sheet is available for download from the City’s website using the following link:
http://www.beverlyhills.org/cbhfiles/storage/files/1266023136723167408/ChecklistforLIDRequiremen tsFINAL(6).pdf
For question related to LID requirements, please contact Trevor Alsop at 310-288-2837 or by email at [email protected].

23. Shade and Shadow Study – Sheet A32 A33
In review of the shade and shadow study provided, see the following comments provided below:
a) Show the property lines, addresses, and street names on all pages of the shade and shadow study.

Show property lines and addresses for all properties shown on the study.

25 The property lines and the addresses of the properties shown in the study were not provided, as noted in the October 13, 2023 incomplete letter.
b) Show the fully extent of the shadow cast by the proposed building. The exhibits provided are small and do not appear to fully depict the extent of the shadow cast by the proposed building.

24. Rooftop Operations Plan
This information has been provided as part of the January 10, 2024 submittal.

The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“The 18th and 19th floor rooftop areas include passive seating areas and landscaping. The rooftop areas will be used for residential users only. The maximum occupancy will be confirmed by the City during the plan check phase once construction documents are prepared.” The narrative provided in the response letter does not provide sufficient detail as to the proposed operations on the rooftop areas for the project. This information is necessary to disclose the potential effects of the project and to provide decision-makers adequate information to conduct the required discretionary review of the project. Please provide a detailed Rooftop Operation Plan that addresses the items detailed in the May 12, 2023, incomplete letter.

Comments from May 12, 2023 Incomplete Letter
Provide the following information for all enclosed and unenclosed rooftop areas proposed:
• Indicate the types of uses proposed for all enclosed and unenclosed rooftop areas. • Indicate the proposed hours of operation of all enclosed and unenclosed rooftop areas. • Indicate whether the rooftop area will be used exclusively by the residential portion of the project or if hotel rooftop access will be provided.
• If the hotel will have access to the rooftop, indicate the type, frequency (yearly, monthly, daily, etc.) of rooftop events, appointments, etc.
• If the hotel will have access to the rooftop, indicate maximum occupancy anticipated for each type of event.

26 25. Arborist Report
As no trees are being removed from the Public Right-of-Way, no arborist report is required.

27. Transportation and Trip Reduction Measures - Transportation Impact Analysis This information has been provided as part of the January 10, 2024 submittal.

The materials provided in the September 15, 2023, resubmittal of the project included a response letter dated August 9, 2023, with Attachment B that includes the following response to this comment/correction:
“Please see the enclosed Transportation Impact Analysis by LLG (Attachment E), dated July 31, 2023 in response to this comment.”
In review of the Transportation Impact Analysis provided, Pages 62-64 of the report provides a copy of BHMC Section 10-7-301. However, the Transportation Impact Analysis of the set of plans do not show

27 how the project will comply with the applicable trip reduction measures, including but not limited to, where the required bicycle parking will be provided. The analysis only states on Page 64 that “The Project will comply with the required TDM and trip reduction measures detailed in Section 10-7-301 of the BHMC,” but provided no information on how the project will comply or what measures are incorporated into the project to achieve compliance.

Revise the Transportation Impact Analysis and the set of plans to show how these requirements are implemented in the project. Show the location of the required bicycle parking on the set of plans.

Please provide this requested information to verify compliance with the applicable requirement, as detailed in the May 12, 2023, incomplete letter and provided below.

Revise the project to incorporate the applicable transportation and trip reduction measures accordingly.

28. Geotechnical/Soils Report
A Geotechnical Investigation Report was provided. Comments on the report are provided below.

The materials provided in the September 15, 2023, resubmittal of the project included a Geotechnical Investigation Report dated April 8, 2021. In review of the Geotechnical Investigation Report, there appears to be an error in the type of project analyzed by the Geotechnical Engineer in preparation of this document. The proposed project is a 19-story building with four levels of subterranean parking provided at an approximate depth of 41’ at parking level P4 and about 50’ in depth at the hotel elevator well. However, the Geotechnical Investigation Report notes that the project is a nine-story residential structure with three levels of subterranean parking, which does not match the project submitted as part of the Development Plan Review application. Additionally, the excavation depths noted in the report at 35’ do not match the project that was submitted to the city for review. Specifically, Page 3 of the report states the following:

28 “Based on information provided to us by the client, we understand that the proposed development consists of one nine-story residential structure over three subterranean parking levels that will extend to depths of approximately 35 feet below ground surface.” Furthermore, Item 7.1.16 in the Conclusions and Recommendations section of the report (Page 18) stated the following:
“7.1.16 - Any changes in the design, location or elevation, as outlined in this report, should be reviewed by this office. Geocon should be contacted to determine the necessity for review and possible revision of this report.”
Revisions by the geotechnical engineer to the Geotechnical Investigation Report and its recommendations are required to accurately analyze the correct project scope and the currently submitted plans. See comments provided on Geotechnical Investigation.

29. Construction Management Plan
This information has been provided as part of the January 10, 2024 submittal.

Provide a construction management plan that provides relevant project construction details, including but not limited to:
• Anticipated timelines for the different construction phases of the project (e.g., demolition, grading, shoring and excavation, construction of the basement, foundations, and above grade work). Provided and in receipt.
• Proposed locations for the staging of construction materials and equipment. Incomplete as this information was not provided, needs to be resubmitted. • Anticipated closures of any right-of-way area (alley/street) and timelines for such closures.

Incomplete as this information was not provided, needs to be resubmitted.

30. Noise Study
The preparation of a noise study will be commissioned by the city as part of the preparation of an environmental report for the project.

31. Metro Adjacent Development Review
The materials provided in the January 10, 2024 resubmittal of the project included a response letter dated January 10, 2024, with Attachment B that includes the following response to this comment/correction:

29 “The Development Plan Review checklist does not require evidence of outreach to the Metro Adjacent Development Review process. As such, this items cannot be required under the HAA and the Permit Streamlining Act in order to complete a Development Plan Review application. The requested items may be provided at the appropriate time during plan check.” As such, the following is a recommendation to assist the applicant team to do outreach early in the process to avoid potential project alterations as a result of potential project impacts to Metro facilities.

The project site is located within close proximity to the upcoming Metro Purple (D Line) subway, which is currently under construction. The subway line is projected to run under Wilshire Boulevard and travel southwest to a station located in Century City, potentially under the project site. To ensure safety, developers, utility companies, and other third parties must consult with Metro for development, construction, and maintenance activities occurring within 100 feet from Metro right-of-way (ROW) and other real estate assets.

As noted on Page 2 of the Geotechnical Investigation report, “Due to the location of the Metro tunnels for the Purple Line Extension, it is possible that portions of the proposed structure will be situated within the influence zone defined by Section 4.1-A of the MTA Design Criteria and Standards, Volume III, Adjacent Construction Design Manual Adjacent Construction Design Manual. New construction within or near the MTA influence zone, must not impose a surcharge on the subterranean MTA facilities in excess of what the structure is designed to withstand. If proposed subterranean levels are not sufficiently deep then building loads could exceed the surcharge allowable by MTA; therefore, the new loads will have to be transferred below or outside of the defined MTA Surcharge Influence Zone projection.” Provide information to the city of the applicant’s outreach efforts with Metro documenting that the proposed project would not impact Metro’s Purple Line facilities or exceed allowable surcharge limits.

32. Public Works Stormwater/Environmental Compliance/Sustainability Comments To be reviewed in Building Plan Check.

Below are Stormwater/ Environmental Compliance/ Sustainability comments provided by the Public Works Department:

30 • Project to use available 100% renewable energy from local utilities. • Sewer system capacity requirement. Require hydraulic modeling to assess sewer capacity issues for the development. Improvement to wastewater system if it impacts sewer system flow. • If permanent dewatering system is needed, design the project to re-use groundwater for nonpotable water systems as required pursuant to BHMC Section 9-4-610.B.2. All ground water discharges must have a permit (NPDES) from the Regional Water Quality Control Board and may require a permit from the City of Beverly Hills.
• Appropriate number of approved Meter Service Protection backflow prevention assemblies for Domestic, Irrigation and Fire Meters required.
• Must implement Low Impact Development (LID) meeting requirements of LID ordinance to mitigate stormwater runoff.
• The applicant is required to install a grease interceptor for food service establishment use.

For questions regarding these comments, please contact Trevor Alsop, Environmental Compliance Inspector, at (310) 288-2837 or by email at [email protected].

33. Building and Safety – Building and Technical Code Comments Below are comments provided by Building and Safety regarding compliance with applicable building and technical codes:
• These comments reflect high-level conceptual review comments. Complete code compliance review will be forthcoming upon plan check submittal. Building Plan Check Item • The review comments are in accordance with 2022 California Building Code and its references.

31 dedications inconsistently shown on resubmitted plans. All sheets must identify location of alley dedications. Item Addressed.
• Survey map is required to show all easements on the properties. Provided • Comply with the City’s applicable parking standards.
https://www.beverlyhills.org/cbhfiles/storage/files/563485925821755963/ParkingStandards(R EV2.18).pdf Not addressed. See Planning’s comments related to adherence with the City’s parking requirements.
• The project requires LID (Low Impact Development) plan check. Building Plan Check Item • On site plan, confirm the location of seismic fault line with dimensions per the seismic fault investigation report. Provided on revised Architectural Plans. • Provide complete Fire department and vehicle access. Building Plan Check Item • Hotel will be classified as R-1 occupancy. CBC 310. Building Plan Check Item • The project is required to be designed in compliance with requirements of CBC 403, High-rise building and CBC 405, Underground Building. Building Plan Check Item • The project is required to provide separate accessible parking requirements per CBC 11A and CBC 11B for residential and nonresidential, respectively. Additionally, the project shall provide accessible and standard EV charging parking spaces. Show the location of these required EV parking spaces in the proposed garage. EV parking spaces not provided on parking plans.

34. Building and Safety – Right of Way Comments
The materials provided in the January 10, 2024 resubmittal of the project included a response letter dated January 10, 2024, with Attachment B that includes the following response to this comment/correction:

32 “The Development Plan Review checklist does not require a water demand study, a will serve letter, or a proposal of Edison upgrades. As such, these items cannot be required under the HAA and the Permit Streamlining Act to complete a Development Plan Review application.

The City may, however, request these items as part of the CEQA process once the DRP application is deemed complete, depending on the type of CEQA clearance ultimately determined to be required for the Project. If the applicable CEQA review does not require these items to determine adequate water supply and anticipated demand (i.e., should the Project be determined to be CEQA exempt) the City may request (and the Applicant would provide) these items during the plan check process, prior to the issuance of a building permit.” The City requested this information to have ready for future environmental review of the project.

This information may requested at a later date for environmental review and is listed here to advise the applicant team of the documents and studies that may needed.

Below are comments provided by Building and Safety regarding areas in the public right-of-way:
• Provide a water demand study to evaluate anticipated water demand for project and for the City to evaluate the types of upgrades and improvements that will be necessary to existing infrastructure. Incomplete as this information was not provided, needs to be resubmitted. • Obtain will serve letter from the Public Works Water Division.Incomplete as this information was not provided, needs to be resubmitted.
• Coordinate with Edison to evaluate necessary upgrades to existing infrastructure to facilitate the project and provide the City a proposal of all upgrades required to provide service to the project. Incomplete as this information was not provided, needs to be resubmitted. • Provide a Construction Management Plan with a narrative detailing the types of temporary encroachments that the project would require during project construction. Based on the proposal, the project would require working areas for the staging and storage of construction materials, equipment, crane(s), trailers, deliveries, and for a laydown area for transport and maneuvering of vehicles. Incomplete as this information was not provided, needs to be resubmitted. A version of this was provided as Attachment H to the materials submitted on January 10, 2024.
• Provide a plan showing the proposed haul routes and delivery route to the project site. To limit construction impacts to residential properties within the vicinity of the project site, all construction-generated traffic should provide ingress and egress to and from the project site directly to Wilshire Boulevard. Incomplete as this information was not provided, needs to be resubmitted. A version of this was provided as Attachment H to the materials submitted on January 10, 2024.

For questions regarding these comments, please contact Ara Retchian, Senior Plan Review Engineer, at (310) 285-1106 or by email at [email protected].

33 35. Fire Department Comments
Below are comments provided by the City’s Fire Department:
• The project shall be designed in compliance with all applicable California Fire Code (CFC) and California Building Code (CBC) requirements for high rise buildings. Although these are preliminary drawings, all applicable high rise requirements shall be considered and incorporated into the project during the design process. Fire Plan Check Item For questions regarding these comments, please contact Cecilia Sohn, Plan Check Inspector, at (310) 281-2716 or by email at [email protected].

37. Additional Corrections
Based on the responses to this incomplete letter and changes to the project plans, additional corrections may result from the review of the revised project.

38. Additional Comments
See redlined set of plans for additional comments.

Once the items above have been addressed and submitted, the application will once again be assessed for completeness. In your response resubmittal, please provide a copy of this letter.

Should you have any questions regarding the above comments, please feel free to call me at (310) 285-1138, or by email at [email protected].

Sincerely,
_________________________________
Edgar Arroyo, Senior Planner
Attachments:

A. Redlined plans
ATTACHMENT 7
Applicant’s Response to 3rd Round
Incomplete Determination
Dated May 9, 2024
(w/o Attachments)
633 West Fifth Street
64th Floor
Los Angeles, CA 90071
213.557.7222
www.rpnllp.com
Dave Rand
213.557.7224
[email protected]
May 9, 2024

VIA EMAIL
Edgar Arroyo, Senior Planner
Community Development Department
Planning Division
City of Beverly Hills
455 N. Rexford Drive
Beverly Hills, CA 90210

Re: Response to Third Incomplete Letter dated February 9, 2024 125 – 129 South Linden Drive – Development Plan Review (PL2300126) Dear Mr. Arroyo,
We are submitting this transmittal on behalf of 9300 Wilshire, LLC (the “Applicant”) in connection with the Development Plan Review application (“DPR Application”) for the proposed mixed use project at 125-129 South Linden Drive (“Site”), assigned case number PL2300126 (the “Project” or “DPR Project”). This transmittal, consisting of this letter and the associated attachments, serves as the Applicant’s formal written response to the third letter issued by the City of Beverly Hills (“City”) on February 9, 2024, which stated that the DPR Application had been deemed incomplete (the “Third Incomplete Letter”). This transmittal is being sent to the City within 90 days of the date of the Third Incomplete Letter, in conformance with Government Code Section 65941.1(d)(2).

Submission of Preliminary Application for Builder’s Remedy Project On October 21, 2022 the Applicant submitted a Senate Bill 330 Housing Crisis Act of 2019 (“HCA”) preliminary vesting application (“HCA Preliminary Application”) for the Project.0F 1 At the time of
submittal of the HCA Preliminary Application the City lacked a legally compliant Housing Element. 1F 2 1 The City’s May 12, 2023 First Incomplete Letter states “Although the Preliminary Application was submitted on Friday, October 21, 2022, the fees for the application were paid after hours, thus the submittal date is considered to be Monday, October 24, 2022.” This point is not contested here. 2 In a letter to the City dated May 12, 2023, the State’s Department of Housing and Community Development (“HCD”) found that the City’s 6th Cycle Adopted Housing Element, adopted February 21, 2023, does not substantially comply with State Housing Element law. HCD’s May 12, 2023 letter also stated that “[b]y no means was the City’s prior submittal [adopted October 15, 2021] in substantial compliance with State Housing Law,” and the “City’s findings as part of the adoption are inadequate to demonstrate substantial compliance with statutory Edgar Arroyo
May 9, 2024

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Beverly Hills City CouncilJune 27, 2024

Beverly Hills City Council
June 27, 2024