WRITTEN PUBLIC COMMENTS RECEIVED — Beverly Hills City Council, January 28, 2025 (part 2 of 2)

#514463026_v3
Project contains 15 percent low income housing and meets the development standards of AB 2011 as modified by AB 2243. Please note that in light of extensive City comments regarding the hotel, the Applicant no longer proposes a hotel; the Applicant kindly requests a refund of the Conditional Use Permit fees.

I. No Loss of Vesting
As an initial matter, the Applicant takes exception to the City’s extreme position expressed in the City’s late October 10, 2024 letter and recent December 27, 2024 letter that purports to divest the Project of vested rights pursuant to SB 330 due to an allegation that the Project exceeds a 20 percent deviation in size in the development application (“DAP”) as compared to the size of the Project in the preliminary application (“PA”). The Project deviates by less than 20 percent and therefore cannot be divested under the law.
2 The City’s efforts in this regard appear to be an
exceptional display of bad faith to thwart much needed housing in the City.

First, the DAP Project data sheet shows the gross building area (“GBA”) as 296,551 square feet.

The PA Project data sheet shows that the GBA is 250,867 square feet, demonstrating that the change in GBA is less than 20 percent. Therefore, there cannot be divestment based on GBA.

Second, the City’s DAP mandates how floor area is calculated, and the architect followed the City’s methodology as required by the City’s own application forms. Page 9 of the City’s DAP requires the Project plans to “[i]nclude a floor area blocking study to demonstrate floor area calculations. The blocking study should be comprised of measurable blocks and clearly delineate between exempt and non-exempt areas. Please refer to BHMC § 10-3-100 for areas that are exempt from floor area calculations (provided in the definition of floor area).” The DAP Project and the currently revised Project provide such blocking to demonstrate floor area calculations. Similarly, the Project’s PA form requires the Applicant to “[d]escribe the proposed land uses by number of units and square feet of residential and nonresidential development using the land use categories described in the Beverly Hills Municipal Code.” The Project’s Applicant and architect did exactly as required by the City’s forms using the Beverly Hills Municipal Code (“BHMC”). There is no place in the City’s multi-page PA form or 14 page DAP form where the City requires that an applicant provide the California Building Code (“CBC”) GBA calculation. 2 Government Code § 65589.5(f)(7)(B) states that “[n]otwithstanding subdivision (c) of Section 65941.1, for a housing development project deemed complete before January 1, 2025, the development proponent may choose to revise their application so that the project is a builder’s remedy project, without being required to resubmit a preliminary application, even if the revision results in the number of residential units or square footage of construction changing by 20 percent or more.” On its face, AB 1893 states no divestment if the Builder’s Remedy deviates by more than 20 percent. Even though the Applicant asked for City interpretation of AB 1893 more than a month ago to plan for this Project and others, the City provided no constructive feedback despite promises. As such, the Applicant conservatively proposes to maintain the Project within a 20 percent deviation standard, even though it reserves the right to reinstate units and floor area that were excluded out of fear of another City attempt to thwart its housing project.

Michael Forbes
January 6, 2025

Page 3 ends

#514463026_v3
Third, contrary to the City’s PA and DAP application forms’ requirements, the City appears to be acting in bad faith by using a definition of floor area that is not within the PA nor DAP requirements, especially when the City’s own application forms mandate the use of the BHMC for floor area. Government Code § 65940(a) requires that a public agency compile a list “… that shall specify in detail the information that will be required from any applicant for a development project.” The City appears to be using a separate definition of GBA that the City did not request or require in its PA or DAP, and pursuant to Government Code § 65943(a), cannot be a basis by which the City now purports to find the Application incomplete. Government Code § 65941(a) prohibits the City from finding the Project’s application incomplete for items not requested on the City’s application (“The information compiled pursuant to Section 65940 shall also indicate the criteria which the agency will apply in order to determine the completeness of any application submitted to it for a development project.”). Since the CBC calculation was not requested on ANY of the City forms; the City mandated the use of BHMC definitions; and the City has not even requested the calculation of the CBC floor area to date, this cannot be a legal basis by which the City can argue Project incompleteness or divestment. The Department of Housing and Community Development (“HCD”) addressed the preclusion of finding an application incomplete for not providing certain information not requested in the city’s application form. See HCD’s discussion of this issue in its August 24, 2022 Letter of Technical Assistance to the City of Fillmore.3 In that letter, HCD found:

To date, the City has issued two incomplete letters for the Project. Both letters include comments that are inaccurately categorized as incomplete items, in conflict with [PSA section 65943(a)]. When a local jurisdiction improperly characterizes comments as incomplete items, the jurisdiction impermissibly raises the bar to achieving a complete application, in violation of the PSA. That violation also becomes an undue constraint on the Project.

For illustrative purposes, a copy of the City’s second incomplete letter (dated June 7, 2022) is enclosed, with highlights (beginning on page 4) identifying comments that appear to conflict with the PSA completeness review. These comments were identified because the referenced item does not appear to be listed on the City’s planning permit application (and therefore cannot be considered a completeness item under the PSA). (Emphasis Added.)
Fourth, the City purports to have calculated the Project size for the DAP per a CBC GBA methodology even though this was not referenced or addressed in the City’s application forms, but did not make such a calculation for the Project in the PA. As such, the City is comparing apples to 3 HCD, “Fillmore Terrace Project – Letter of Technical Assistance” (Aug. 24, 2022) (https://www hcd.ca.gov/sites/default/files/docs/planning-and-community/HAU/fillmore-attachments-TA082422.pdf).

Michael Forbes
January 6, 2025

Page 4 ends

#514463026_v3
oranges and not making a like-for-like comparison. Thus, the comparison on its face inaccurately uses one methodology for the DAP and a different methodology for the PA.

Fifth, the Applicant has no idea how the City purports to have scaled the DAP Project to conclude that the CBC GBA deviation is greater than 20 percent between the DAP and PA projects. Without the benefit of construction drawings, a plan check submission, or computer aided design (“CAD”) drawings, the City appears to be relying on the whims of a planner, a ruler, and a calculator to divest the Project of vested rights by speciously re-calculating the Project’s size. Further, unlike the licensed professionals who prepared the DAP and PA Project drawings, the Applicant is unaware of any City licensed architect or surveyor who has made such a calculation for any or both the DAP and PA projects. There were no construction drawings, plan check submission, or CAD drawings. The City’s purported scaling is without factual support and cannot be used to divest based on the representation in the DAP Project data sheet.

Sixth, because the City has still failed to require submission of GBA per the CBC in the PA or DAP, it does not have the information to even assess whether there has been a 20 percent deviation per the City’s purported divestment methodology. Based on the sole methodology for calculating the floor area that the City mandated in its application forms, the Project, as stated earlier does not deviate by more than 20 percent when comparing the Project in the DAP against the PA. As such, this cannot be a basis by which the City can divest the Project of vested rights.

Even though the City’s forms did not require CBC analysis, to ensure compliance with the City’s latest demand, with this submittal the design team recalculated the building area using both the BHMC and CBC methodologies. Please see the updated G sheets showing these calculations within the Project’s drawings. With this dual approach, the architect is hoping to show transparency but also underscores the team’s commitment to meeting the City’s expectations, despite multiple targets.

Seventh, if the architect where to utilize the new methodology that the City is attempting to use for both the PA and the DAP Project, and the Applicant is under no legal obligation to produce such materials and further does not waive any rights by providing such information now, as shown in Exhibits 8800 – Floor Area (Calc. A), 8800 – Floor Area (Calc. B), and 8800 – Floor Area (Calc. C), there would be a less than 20 percent deviation.

Taken together, the City has no legal basis to conclude that there has been a more than 20 percent deviation.

II. Response to City’s Tardy Incompleteness Determination As stated earlier, on March 14, 2024, the Applicant submitted a PA pursuant to Government Code Section 65941.1 on the City’s form. Subsequently, on September 10, 2024, the Applicant submitted the DAP pursuant to Permit Streamlining Act (“PSA”) Section 65943 (the “Application”). On October 10, 2024, the City issued a written determination finding that the Application was incomplete (the “Incompleteness Determination”).

Michael Forbes
January 6, 2025

Page 5 ends

#514463026_v3
The Applicant contends that the Incompleteness Determination was untimely because it was issued more than 30 days after the City’s receipt of the DAP, and therefore that the DAP was “deemed complete” by operation of the PSA.
4 In other completeness matters before the City for housing development projects, the City vehemently contended that transmission of documents after hours is not a transmission on the same business day. The City is trying to have it both ways here where the City’s Incompleteness Determination occurred after business hours on October 10th, i.e., more than 30 days after the DAP submission.5 As such, the DAP is deemed complete as a matter of law because the City transmitted its Incompleteness Determination more than 30 days after submission of the DAP.6 Moreover, even though the DAP is complete since the City transmitted its Incompleteness Determination after business hours, the City has not transmitted any notice of inconsistency with applicable regulations within 30 days of the deemed complete date pursuant to Government Code Section 65589.5(j)(2)(A)(i). Therefore, as a matter of law, the Project has been deemed complete and there has been no identification of inconsistencies with applicable development standards and requirements.7
Notwithstanding the City’s tardiness by sending its Incompleteness Determination more than 30 days after the submission of the DAP, in an effort to proceed collaboratively with the Project notwithstanding this dispute, the Applicant hereby submits its first response to the Incompleteness Determination and supplements it with a conversion to a Builder’s Remedy project pursuant to AB 1893 in combination with making this an AB 2011/AB 2243 project as discussed further in this letter.

We further note that, as developed more fully later in this letter, the Project is entitled to significant benefits as a Builder’s Remedy project. These include two additional state density bonus law (“SDBL”)8incentives and concessions (for a total of three), and new provisions of the Housing Accountability Act (“HAA”) that preclude the City from imposing any conditions that will render the Project infeasible.

Page 6 ends

#514463026_v3
To that end, the Applicant takes this opportunity to inform the City that the Project qualifies for10 and is proceeding as an AB 1893-protected Builder’s Remedy project.

With that in mind, we wish to draw the City’s attention to the following issues concerning the application of AB 1893 to the Project:
• Affordable units. Until December 31, 2024, Builder’s Remedy projects were required to designate 20 percent of their total units affordable to lower-income households.11 AB 1893 lowered these requirements, and provides Builder’s Remedy applicants with flexibility to choose which qualifying affordability levels and percentages they will provide.12 As of January 1, 2025, the Project hereby changes its affordability commitment such that 15 percent of its total units will be set aside for lower-income households, consistent with AB 1893,
13 and in fact exceeding AB 1893’s requirement for 13 percent lower-income household set-aside.
• Compliance with applicable, objective local standards. Until December 31, 2024, local governments could not require Builder’s Remedy projects to comply with their objective local standards – including zoning standards – unless they are able to make certain rarelyoccurring findings.14 While AB 1893 does not allow local governments to subject Builder’s Remedy projects to the objective standards of the otherwise-applicable zoning designation, it does allow local governments to “require the project to comply with the objective, quantifiable, written development standards, conditions, and policies that would have applied to the project had it been proposed on a site with a general plan designation and the provisions of this section that were in place on the date the preliminary application was submitted, or, if the project meets the definition of a builder’s remedy project, it may choose to be subject to any or all of the provisions of this section applicable as of January 1, 2025.”). See also Gov. Code § 65589.5(h)(5) (“Notwithstanding any other law, until January 1, 2030, ‘deemed complete’ means that the applicant has submitted a preliminary application pursuant to Section 65941.1 or, if the applicant has not submitted a preliminary application, has submitted a complete application pursuant to Section 65943.”) (emphasis added). 10 Specifically, (1) the Project is a “housing development project that provides housing for very low, low-, or moderate-income households,” because “at least 13 percent of the total units … are dedicated to lower income households” (Gov. Code §§ 65589.5(h)(11)(A)), (h)(3)); (2) as of the date of the Applicant’s submittal of a preliminary application pursuant to Government Code § 65941.1, “the jurisdiction did not have a housing element that was in substantial compliance with this article” (Gov. Code §§ 65589.5(h)(11)(B), (h)(5); see also Gov. Code § 65589.55(a)); (3) the Project’s density does not exceed the statutory maximum densities (Gov. Code § 65589.5(h)(11)(C)); (4) the Project site does not have a “minimum density requirement” (Gov. Code § 65589.5(h)(11)(D)); and (5) the “project site does not abut a site where more than one-third of the square footage on the site has been used, within the past three years, by a heavy industrial use, or a Title V industrial use” (Gov. Code § 65589.5(h)(11)(E)).
11 Gov. Code §§ 65589.5(d); (h)(3).
12 Gov. Code §§ 65589.5(d); (h)(3)(C) (as amended by AB 1893). As stated in AB 1893’s adopted legislative findings, this change was specifically intended to “lower barriers to economic feasibility” for Builder’s Remedy projects. See AB 1893, Section 1(i).
13 Gov. Code §§ 65589.5(d); (h)(3)(C)(i)(III) (as amended by AB 1893). 14 Gov. Code § 65589.5(d)(5).

Michael Forbes
January 6, 2025

Page 7 ends

#514463026_v3
zoning classification that allow the density and unit type proposed by the applicant[,]”15 subject to certain restrictions.

The Project meets the Mixed Use Overlay zone standards subject to the Applicant’s utilization of density bonus benefits and the restrictions on the City’s imposition of its standards that are set forth below.16
• SDBL Benefits. As of January 1, 2025, the Project is entitled to utilize three SDBL incentives and concessions, as well as unlimited waivers of development standards that physically preclude the construction of the Project as proposed by the Applicant.17 The Applicant seeks the following relief under SDBL:

Incentives
(1) The Applicant seeks relief from BHMC § 5-1-205’s S 8 am – 6 pm Monday through Friday construction hours to allow construction hours of 7 am to 6 pm Monday through Friday and Saturday construction 8 am to 5 pm.

Longer construction hours and Saturday construction will allow the Project construction to proceed more quickly, thereby reducing costs of construction and carrying costs that would occur with a longer construction schedule. Shorter construction hours will increase the costs of construction by requiring additional days on the job site. For example, starting construction activities at 8:00 am would extend the construction schedule by 5 hours per week, or approximately 2.67-days per month (based on 22 workdays per month). As such, the cost savings will help reduce the cost of providing for affordable housing. (2) The Applicant seeks relief from BHMC § 3-1-802 fine art obligation for no fine art obligation.

The fine art obligation would cost hundreds of thousands of dollars, if not more than $1,000,000. While the Project would provide an aesthetically pleasing design that would contribute significantly to the City, removing the costly fine art obligation would result in cost savings for providing affordable housing.
(3) The Applicant seeks relief from BHMC section 10-3-4806A.1 standard regarding placement of the affordable units.
15 Gov. Code § 65589.5(f)(6)(A) (as amended by AB 1893) (emphasis added). 16 The City has not sent any correspondence indicating any inconsistencies with objective local standards within 30 days of application completeness as required by HAA subdivision (j)(2). Therefore, the Project is deemed to comply with all applicable local standards by operation of the HAA. The Applicant’s discussion of the interaction between AB 1893 and the City’s objective local standards should not be construed as a waiver of the Applicant’s position that the Project is separately deemed consistent with those standards. 17 See Gov. Code §§ 65915(d)(2)(A), (e)(1); Gov. Code § 65589.5(f)(6)(C)(i) (as amended by AB 1893).

Michael Forbes
January 6, 2025

Page 8 ends

#514463026_v3
Allowing greater flexibility in the placement of affordable units would enable to the Project to receive higher rents for the market rate units that will then help to subsidize the cost of providing affordable housing. For example, top floor units would be able to achieve higher rents than affordable units allowing the market rate units to subsidize the cost of providing affordable housing. As such, relief from the City’s affordable housing placement requirement would reduce the cost of providing for affordable housing.

Waivers
(1) Height: an additional 161'-8" of overall height above the 45-foot height limit as set forth in BHMC § 10-3-1880A consisting of 206'-8" building height with rooftop amenities.

The 45-foot height limit would result in the need to remove more than 161 feet of the building’s height. Such a reduction in height would cause a massive loss in proposed density. As such, the height standard would physically preclude the Project as proposed, and relief is necessary. (2) Stories: an additional fourteen stories above the three-story limit as set forth in BHMC § 10-3-1880A for a total of 17 stories.

The three-story height limit would result in the need to remove 14 stories of the building’s height. Such a reduction in height would cause a massive loss in proposed density. As such, the height standard would physically preclude the Project as proposed, and relief is necessary. 3) Setback: reduction to zero of the six-foot setback requirement as set forth in BHMC § 10- 3-1884, 10-3-1952 for the alley side of the building (south side).

The Project proposes to provide a 2’6” dedication for alley widening to the south. Increasing the setback further would result in the loss of important building area necessary for all the southerly dwelling units; a reduction in building area would result in the loss of bedrooms, and therefore, a loss in dwelling units. As such, adherence to this development standard would physically preclude the Project as proposed.
4) Public and private outdoor living space: a reduction of outdoor living space is requested.

Per BHMC 10-3-1886, 10-3-2803, at least 200 sf of usable outdoor living space is required per each dwelling unit. 139 units x 200 sf = 27,800 sf required 14,469 sf is provided. If the full amount of open space were provided that the BHMC would otherwise require, there would need to be an additional 13,000 square feet of such open space. Providing such additional open space would require the removal of entire stacks of dwelling units and other building changes that would reduce the density proposed. As such, adherence to this development standard would physically preclude the Project as proposed.

Michael Forbes
January 6, 2025

Page 9 ends

#514463026_v3
5) Parking Standard - parking ramp width: relief from the parking standards adopted by the city council and on file in the Department of Planning and Community Development. Specific relief to allow for a 18'-0" wide ramp in lieu of 20'-0" minimum required.

Though parking is not required with an AB 2011 project, parking is nevertheless an important amenity for the Project. Widening the parking ramps would result in the loss of parking spaces and circulation areas necessary for operation of the parking garage. As such, adherence to this development standard would physically preclude the Project as proposed. 6) Parking Standard - Parking Stall Dimensions: relief from the parking standards adopted by the City Council and on file in the Department of Planning and Community Development.

Specific. Relief to allow for reduced parking space dimensions provided regular parking spots:
18'-0" deep and 8'-6" wide (19'x9' required). Provided compact parking spots: 15'-0" deep and 8'-6" wide (17'x7.5' required).

Though parking is not required with an AB 2011 project, parking is nevertheless an important amenity for the Project. Increasing the size of the parking stalls would result in the loss of parking spaces and circulation areas necessary for operation of the parking garage. As such, adherence to this development standard would physically preclude the Project as proposed. 7) AB 2011 Height Limit of 65'-0": relief from the development standard indicated in AB 2011 § 65912.123 to allow for a height limit of 206'-8".
18 The 65-foot height limit would result in the need to remove more than 141 feet of the building’s height. Such a reduction in height would cause a massive loss in proposed density. As such, the height standard would physically preclude the Project as proposed, and relief is necessary. 8) AB 2011 Setback Requirement: relief from the AB 2011 setback requirement in § 65912.123(d)(4)(a)(i) which requires a 10' set back abutting a residential use.

The property is separated from a residential use by a 15-foot-wide alley and therefore does not directly abut a residential use or another property to the south. Further, approximately five feet of the most westerly portion of the southerly property line of the Property is located across from a residential use; the southerly side of the southerly alley mostly contains a commercial use. Due to the existing alley, there is no abutting residential use or abutting property. As such, this development standard in Government Code § 65912.123(d)(4)(a)(i) does not apply.

Nevertheless, if the City decides to subjectively interpret this objective standard as requiring a 18 See HCD Correspondence to Jennifer Hernandez and Kevin Ashe of Holland & Knight, LLP dated July 27, 2023 re “Request for Technical Assistance on the Intersection of AB 2011 (2022) and Height Allowances Allowed under State Density Bonus Law.” (“HCD has determined that AB 2011 provides for the allowance of SDBL concessions or waivers for height limits and therefore, concessions and waivers are applicable to all provisions under § 65912.123(c), including “[t]he height allowed on the parcel by the local government,” as stated in § 65912.123(c)(1). It is HCD’s hope that the determinations made in this letter might serve to further facilitate the production of affordable housing statewide.”)
Michael Forbes
January 6, 2025

Page 10 ends

#514463026_v3
ten foot setback from the edge of the southerly property line for the portion of the property coterminous with the residential use located on the south side of the alley, the Project proposes to provide a 2’6” dedication for alley widening to the south. Increasing the setback further would result in the loss of important building area necessary for southerly dwelling units; a reduction in building area would result in the loss of bedrooms, and therefore, a loss in dwelling units. As such, adherence to this development standard would physically preclude the Project as proposed.
9) AB 2011 Setback Requirements: relief from the AB 2011 setback requirement in § 65912.123(d)(4)(a)(ii) which requires that starting with the second floor each subsequent floor of the development project shall be stepped back in an amount equal to seven feet multiplied by the floor number.

The property is separated from a residential use by a 15-foot-wide alley and therefore does not directly abut a residential use or another property to the south. Due to the existing alley, there is no abutting residential use or abutting property. Further, approximately five feet of the most westerly portion of the southerly property line of the Property is located across from the residential use; the southerly side of the southerly alley mostly contains a commercial use. Due to the existing alley, there is no abutting residential use or abutting property. As such, this development standard in Government Code § 65912.123(d)(4)(a)(ii) does not apply.

Nevertheless, if the City decides to subjectively interpret this objective standard as requiring stepped setbacks for each floor starting at the second floor, this would result in the loss of important building area necessary for southerly dwelling units; a reduction in building area would result in the loss of bedrooms, and therefore, a loss in dwelling units. As such, adherence to this development standard would physically preclude the Project as proposed. 10) Residential Uses Within First 40' of Street Facing Property Lines: relief from BHMC § 10- 3-1877(c) to allow for residential lobby within first 40'-0 of depth from street facing property line.

All dwelling units are located above the first level. Hence there are no residential uses within the first forty feet of street facing property lines. While the lobby would serve the dwelling units, the lobby does not constitute living area or dwelling units. Further, given that there must be street access to somehow get to the dwelling units, there must be some residential lobby area within forty feet of the streets. As such, this development standard does not appear to apply since there MUST be some street access for the residential uses. No dwelling units would be on the ground floor which seems like the logical meaning for this development standard since the whole point of the Mixed Use Overlay zone is to have residential dwelling units in mixed-use buildings within the zone. Nevertheless, if this development standard does apply, it would physically preclude the Project as proposed since there must be residential access within 40 feet of the street.

Michael Forbes
January 6, 2025

Page 11 ends

#514463026_v3
11) Commercial Parking Separation: relief from the development standard that mandates separation between residential and commercial parking areas otherwise required by BHMC § 10-3-1883(b).

The handful of retail parking spaces would be located on P1. While these spaces are designated for commercial use, there would be sharing of residential access. Further, residential parking spaces would be located on the same level as the commercial parking. If the parking had to be segregated onto different levels or to have separate accessways, this would physically preclude the Project as proposed.
• Local standards that render the Project infeasible. As of January 1, 2025, the City is precluded from applying “any individual or combination of objective, quantifiable, written development standards, conditions, and policies to the project that … [r]ender the project infeasible.”19
The Applicant expressly reserves the right to identify local standards that contribute to Project infeasible as the City’s review proceeds, such as the commercial parking separation requirement in BHMC § 10-3-1883(b).

IV. Notice of AB 2011/AB 2243 Filing
In addition to the important topics addressed above, the purpose of this letter is to inform the City that in light of AB 1893 which went into effect on January 1, 2025, the Applicant hereby submits a revised Builder’s Remedy project pursuant to AB 1893 that also utilizes AB 2011/AB 2243. At a high level, AB 2011/AB 2243 mandates ministerial approval of the Project since the Project meets the qualifying criteria, including the requisite amount of affordable housing. To this end, esteemed former Mayor Lille Bosse wrote to the Honorable Buffy Wicks in opposition to AB 2011 that “AB 2011 would streamline the process for review of these projects and undercut the ability of our community to provide their feedback to a developer.” 20 (Emphasis Added.)
Overriding former Mayor Bosse’s concerns, our state legislature enacted AB 2011 which removed a discretionary public review process for AB 2011 projects. Even though as of last week the City did not have an AB 2011 application form and the law has been on the books for a few years,21 this Project will utilize AB 2011 as modified by AB 2243. Further emphasizing state preemption over local control in order to facilitate much needed housing at all levels, including affordable 19 Gov. Code § 65589.5(f)(6)(B)(i)(I) (as amended by AB 1893). See also Gov. Code § 65589.5(f)(6)(B)(ii) (as amended by AB 1893) (“The local agency shall bear the burden of proof of complying with clause (i).”). 20 See June 7, 2022 Letter from Mayor Bosse to Honorable Buffy Wicks re “AB 2011 (Wicks) — Affordable Housing and High Road Jobs Act of 2022 City of Beverly Hills -OPPOSE” at https://www.beverlyhills.org/DocumentCenter/View/455/AB-2011-Wick-Affordable-Housing-and-High-Road-JobsAct-of-2022---Oppose-PDF?bidId= accessed December 31, 2024. 21 Communication between Allen Shamooilian and Masa Alkire, December 30, 2024. The City has also not given any guidance on an AB 2011 submission despite a request by Mr. Shamooilian.

Michael Forbes
January 6, 2025

Page 12 ends

#514463026_v3
housing, our state legislature in AB 1893 explicitly allowed the marriage of AB 2011 projects with a Builder’s Remedy project (“A builder’s remedy project shall be deemed to be in compliance with the residential density standards for the purposes of complying with subdivision (b) of Section 65912.123.”).22
With respect to qualifying for AB 2011/AB 2243, the Project commits to the following:
• The Project will pay prevailing wages as required under the law. • The Project will include the required amount of 15 percent lower income affordable units. • The Project will exceed the minimum 75 percent of the maximum allowable density of the Project site.
• The Project will utilize SDBL to deviate from height requirements. • The Project will utilize SDBL for relief from setback requirements. • The Project will meet applicable objective standards, except where relief is granted pursuant to SDBL or where local standards make the Project infeasible pursuant to Gov.

Code § 65589.5(f)(6)(B)(i)(I).
• The Project site is more than 3,200 feet away from a facility that actively extracts or refines oil or natural gas.
• The Applicant has already provided written notice to commercial tenants of the pending AB 2011/AB 2243 application and will provide relocation assistance to the extent required by law.

Please note that this is a ministerial project. As such, it is exempt from the California Environmental Quality Act (“CEQA”).

V. Future Processing
The Applicant would like to briefly address several issues related to the City’s remaining processing of the Project. First, as the City knows, AB 1893 amends the HAA to expressly prohibit local governments from requiring Builder’s Remedy projects to “apply for, or receive approval of, a general plan amendment, specific plan amendment, rezoning, or other legislative approval[,]” and to specify that any such requirement constitutes a violation of the HAA.23 We take this opportunity to remind the City that the Project cannot be required to receive a General Plan 22 Gov. Code § 65589.5(f)(6)(F)(i).
23 Gov. Code §§ 65589.5(f)(6)(D)(i), (h)(6)(G).

Michael Forbes
January 6, 2025

Page 13 ends

#514463026_v3
Amendment or zone changes – even though the City has indicated in its Incompleteness Determination that a General Plan Amendment and zone change are required. 24 Second, as discussed, AB 1893 prohibits the City from imposing “any individual or combination of objective, quantifiable, written development standards, conditions, and policies to the project that … [r]ender the project infeasible.”25 The Applicant intends to, and likely will, identify further conditions that may not lawfully be imposed pursuant to AB 1893, and requests that the City engage with the Applicant in good faith to proactively waive these requirements.

Finally, as an AB 2011 project (and as stated above), the Project is ministerial and therefore exempt from CEQA review. Any studies in furtherance of CEQA are not necessary, they are unlawful since the City has no discretion to conduct any environmental review of the Project. In Tiburon Open Space Committee v. County of Marin 78 Cal.App.5th 700 (Cal. Ct. App. 2022) the court expressly acknowledged that an agency's discretion under CEQA "is limited by its own legal obligations"26 and that "the scope of environmental review must be commensurate with an agency's retained discretionary authority, including any limitations imposed by legal obligations."27 Here, AB 2011 removes any CEQA review for the AB 2011 project. Since there is no legal authority for environmental review the City is limited by this legal obligation and cannot require technical studies for environmental review for which it cannot conduct.

VI. Clear Housing Accountability Act Violations
When the City’s own application forms do not even request the information by which the City uses as a basis to claim the Project is incomplete (and to which the City has NEVER requested such information in an application form or otherwise), it is a clear Housing Accountability Act violation per Government Code Section 65589.5(h)(6).28 Other Housing Accountability Act violations exist including the City’s requirement that the Project must get a legislative entitlement, in violation of Government Code Section 65589.5(h)(6)(G).

Please take note that this letter serves as written notice pursuant to Government Code Section 65589.5(h)(6)(D) that it must “… cease a course of conduct undertaken for an improper purpose, such as to harass or to cause unnecessary delay or needless increases in the cost of the proposed 24 The City has never retracted this “requirement” which clearly violates the HAA. 25 Gov. Code § 65589.5(f)(6)(B)(i)(I) (as amended by AB 1893). See also Gov. Code § 65589.5(f)(6)(B)(ii) (as amended by AB 1893) (“The local agency shall bear the burden of proof of complying with clause (i).”). 26 Tiburon Open Space Committee v. County of Marin 78 Cal.App.5th 700, 732 (Cal. Ct. App. 2022). 27 Id. at 731.
28 A Housing Accountability Act violation exists here when the City: (1) “(F)(i) Determines that an application for a housing development project is incomplete pursuant to subdivision (a) or (b) of Section 65943 and includes in the determination an item that is not required on the local agency’s submittal requirement checklist. The local agency shall bear the burden of proof that the required item is listed on the submittal requirement checklist.”; and (2) “(H) Makes a written determination that a preliminary application described in subdivision (a) of Section 65941.1 has expired or that the applicant has otherwise lost its vested rights under the preliminary application for any reason other than those described in subdivisions (c) and (d) of Section 65941.1.” Michael Forbes
January 6, 2025

Page 14 ends

#514463026_v3
housing development project, that effectively disapproves the proposed housing development…”29 By not just providing the October 2024 incomplete letter stating divestment on the basis of different floor area calculations never even requested by the City in any application form or in any correspondence, but by doubling down in its aggressive December 27, 2024 incompleteness determination for floor area calculations that to this day have never been requested by the City, the City is unlawfully using this as a basis by which it is effectively denying this Project. The City controls its PA and DAP forms; the Applicant has no control over the application forms that the City in its complete and unfettered discretion prepares and creates. The City could have requested GBA information based on the CBC on the PA and DAP forms, but did not and has not. Without vested rights, there is no path forward for this Project at the density proposed. Therefore, the City’s behavior repeated with its December 27, 2024 letter, appears to be on a path to denial of the Project pursuant to Government Code Section 65589.5(h)(6)(D).

VII. Conclusion
Again, we wish to underscore that the Applicant is eager to collaborate with the City to move the Project forward in a manner consistent with state housing law. The need for housing, particularly close to employment and high resource areas is extreme. Our state legislature has found and declared that:
“(A) The lack of housing, including emergency shelters, is a critical problem that threatens the economic, environmental, and social quality of life in California. (B) California housing has become the most expensive in the nation. The excessive cost of the state’s housing supply is partially caused by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing.
(C) Among the consequences of those actions are discrimination against lowincome and minority households, lack of housing to support employment growth, imbalance in jobs and housing, reduced mobility, urban sprawl, excessive commuting, and air quality deterioration.
(D) Many local governments do not give adequate attention to the economic, environmental, and social costs of decisions that result in disapproval of housing development projects, reduction in density of housing projects, and excessive standards for housing development projects.”
30 29 Because of the City’s actions thus far, the Applicant has incurred considerable cost both in legal fees and having to go through AB 1893 for greater protection. The City’s hostile actions to divest the Applicant of legal rights is improper.
30 Gov. Code § 65589.5(a)(1).

Michael Forbes
January 6, 2025

Page 15 ends

#514463026_v3
Over the last 50 years, the City’s population has not just stagnated, but has decreased. “In 1970, the population of Beverly Hills was 33,400. Today, it is 32,400. Over the same period, the number of California residents has doubled to nearly 40 million.” 31 Homeless in the United States is at a
record high.32 Even though the City is 50 percent through the 6th Cycle Regional Housing Needs Allocation period, the City has only permitted one out of 680 allocated low income units and 120 out of 814 above moderate housing units during the current 6th Cycle Regional Housing Needs Allocation, achieving only 0.1 percent attainment for low income dwelling units and 14.7 percent attainment for above moderate dwelling units.33 These facts underscore the great need for housing here and now. The Project will not just help the City achieve its state-mandated allocations, but it will also help the City decrease its substantial population decline while providing housing in close proximity to jobs and very high-quality transit.

This is an exciting Project that will add much-needed market-rate and affordable dwelling units to the City. The entire Applicant’s team looks forward to working with the City to construct this Builder’s Remedy Project.

Sincerely yours,

HOLLAND & KNIGHT LLP
Ryan M. Leaderman
Luca Trumbull
Enclosures:
• 8800 Wilshire Blvd. Revised Plans
• 1
st Incompleteness Letter Response
• Trip Generation Assessment (LLG)
• 8800 – Floor Area (Calc. A)
• 8800 – Floor Area (Calc. B)
31 Los Angeles Times, “In Beverly Hills, no kitchen remodels or pool grottoes as judge orders building moratorium over lack of affordable housing,” by Liam Dillon, January 18, 2024, available at https://www.latimes.com/homelesshousing/story/2024-01-18/beverly-hills-affordable-housing-permit-moratorium, accessed January 1, 2025. 32 National Public Radio, “U.S. homelessness jumps to another record high, amid affordable housing shortage,” by Jennifer Ludden, December 27, 2024, available at https://www npr.org/2024/12/27/nx-s1-5241115/us-homelesshud-housing-costs-migrants, accessed January 1, 2025. 33 California Housing and Community Development Housing Element Implementation and APR Data Dashboard, available at https://www hcd.ca.gov/planning-and-community-development/housing-element-implementation-andapr-dashboard, accessed January 1, 2025.

Michael Forbes
January 6, 2025

Page 16 ends

This firm represents 8820 Wilshire Associates LP (the “Applicant”) in connection with its application for a mixed-use multifamily residential housing development project at 8820 Wilshire Boulevard (the “Property”) in Beverly Hills (the “City”), California that includes 134 multifamily apartments, 1,870 square feet of ground floor retail uses, and associated parking (the “Project”).

This is a Builder’s Remedy1 project pursuant to AB 1893 that follows the (1) SB 330 preliminary application that was filed on March 14, 2024; and (2) the full development application that was submitted on September 10, 2024. As of January 1, 2025, AB 1893 went into effect modifying Builder’s Remedy. As such, this cover letter informs the City of the Project revision to reflect AB 1893. Please note that in light of extensive City comments regarding the hotel, the Applicant no longer proposes a hotel; the Applicant kindly requests a refund of the Conditional Use Permit fees. 1 Government Code section 65589.5(d)(5) is colloquially known as “Builder’s Remedy.” The Project is also more broadly subject to the protections of the Housing Accountability Act, and the Housing Crisis Act of 2019 (“SB 330”).

Michael Forbes
January 7, 2025

Page 2 ends

#515213347_v2
I. No Loss of Vesting
As an initial matter, the Applicant takes exception to the City’s extreme position expressed in the City’s late October 10, 2024 letter and recent December 27, 2024 letter that purports to divest the Project of vested rights pursuant to SB 330 due to an allegation that the Project exceeds a 20 percent deviation in size in the development application (“DAP”) as compared to the size of the Project in the preliminary application (“PA”). The Project deviates by less than 20 percent and therefore cannot be divested under the law.
2 The City’s efforts in this regard appear to be an
exceptional display of bad faith to thwart much needed housing in the City.

First, the DAP Project data sheet shows the gross building area (“GBA”) as 311,054 square feet.

The PA application (item 4) shows that the “square feet of residential and nonresidential development using the land use categories described in the Beverly Hills Municipal Code” is 269,481 square feet. These numbers demonstrate that the change in GBA is less than 20 percent.

Therefore, there cannot be divestment based on GBA.

Third, contrary to the City’s PA and DAP application forms’ requirements, the City appears to be acting in bad faith by using a definition of floor area that is not within the PA nor DAP 2 Government Code § 65589.5(f)(7)(B) states that “[n]otwithstanding subdivision (c) of Section 65941.1, for a housing development project deemed complete before January 1, 2025, the development proponent may choose to revise their application so that the project is a builder’s remedy project, without being required to resubmit a preliminary application, even if the revision results in the number of residential units or square footage of construction changing by 20 percent or more.” On its face, AB 1893 states no divestment if the Builder’s Remedy deviates by more than 20 percent. Even though the Applicant asked for City interpretation of AB 1893 more than a month ago to plan for this Project and others, the City provided no constructive feedback despite promises. As such, the Applicant conservatively proposes to maintain the Project within a 20 percent deviation standard, even though it reserves the right to reinstate units and floor area that were excluded out of fear of another City attempt to thwart its housing project.

Michael Forbes
January 7, 2025

Page 3 ends

#515213347_v2
requirements, especially when the City’s own application forms mandate the use of the BHMC for floor area. Government Code § 65940(a) requires that a public agency compile a list “… that shall specify in detail the information that will be required from any applicant for a development project.” The City appears to be using a separate definition of GBA that the City did not request or require in its PA or DAP, and pursuant to Government Code § 65943(a), cannot be a basis by which the City now purports to find the Application incomplete. Government Code § 65941(a) prohibits the City from finding the Project’s application incomplete for items not requested on the City’s application (“The information compiled pursuant to Section 65940 shall also indicate the criteria which the agency will apply in order to determine the completeness of any application submitted to it for a development project.”). Since the CBC calculation was not requested in ANY of the City forms; the City mandated the use of BHMC definitions; and the City has not even requested the calculation of the CBC floor area to date, this cannot be a legal basis by which the City can argue Project incompleteness or divestment. The Department of Housing and Community Development (“HCD”) addressed the preclusion of finding an application incomplete for not providing certain information not requested in the city’s application form. See HCD’s discussion of this issue in its August 24, 2022 Letter of Technical Assistance to the City of Fillmore.3 In that letter, HCD found:

For illustrative purposes, a copy of the City’s second incomplete letter (dated June 7, 2022) is enclosed, with highlights (beginning on page 4) identifying comments that appear to conflict with the PSA completeness review. These comments were identified because the referenced item does not appear to be listed on the City’s planning permit application (and therefore cannot be considered a completeness item under the PSA). (Emphasis Added.)
Fourth, the City purports to have calculated the Project size for the DAP per a CBC GBA methodology even though this was not referenced or addressed in the City’s application forms, but did not make such a calculation for the Project in the PA. As such, the City is comparing apples to oranges and not making a like-for-like comparison. Thus, the comparison on its face inaccurately uses one methodology for the DAP and a different methodology for the PA. 3 HCD, “Fillmore Terrace Project – Letter of Technical Assistance” (Aug. 24, 2022) (https://www hcd.ca.gov/sites/default/files/docs/planning-and-community/HAU/fillmore-attachments-TA082422.pdf).

Michael Forbes
January 7, 2025

Page 4 ends

#515213347_v2
Fifth, the Applicant has no idea how the City purports to have scaled the DAP Project to conclude that the CBC GBA deviation is greater than 20 percent between the DAP and PA projects. Without the benefit of construction drawings, a plan check submission, or computer aided design (“CAD”) drawings, the City appears to be relying on the whims of a planner, a ruler, and a calculator to divest the Project of vested rights by speciously re-calculating the Project’s size. Further, unlike the licensed professionals who prepared the DAP and PA Project drawings, the Applicant is unaware of any City licensed architect or surveyor who has made such a calculation for any or both the DAP and PA projects. There were no construction drawings, plan check submission, or CAD drawings. The City’s purported scaling is without factual support and cannot be used to divest based on the representation in the DAP Project data sheet.

Seventh, if the architect where to utilize the new methodology that the City is attempting to use for both the PA and the DAP Project, and the Applicant is under no legal obligation to produce such materials and further does not waive any rights by providing such information now, as shown in Exhibits 8820 – Floor Area (Calc. A), 8820 – Floor Area (Calc. B), and 8820 – Floor Area (Calc. C), there would be a less than 20 percent deviation.

Taken together, the City has no legal basis to conclude that there has been a more than 20 percent deviation.

The Applicant contends that the Incompleteness Determination was untimely because it was issued more than 30 days after the City’s receipt of the DAP, and therefore that the DAP was “deemed complete” by operation of the PSA.
4 In other completeness matters before the City for housing development projects, the City vehemently contended that transmission of documents after hours is not a transmission on the same business day. The City is trying to have it both ways here where the City’s Incompleteness Determination occurred after business hours on October 10th. 5 As such,
4 Gov. Code § 65943(b).
5 140 S. Camden Drive project.

Michael Forbes
January 7, 2025

Page 5 ends

#515213347_v2
the DAP is deemed complete as a matter of law because the City transmitted its Incompleteness Determination more than 30 days after submission of the DAP.6 Moreover, even though the DAP is complete since the City transmitted its Incompleteness Determination after business hours, the City has not transmitted any notice of inconsistency with applicable regulations within 30 days of the deemed complete date pursuant to Government Code Section 65589.5(j)(2)(A)(i). Therefore, as a matter of law, the Project has been deemed complete and there has been no identification of inconsistencies with applicable development standards and requirements.7 Notwithstanding the City’s tardiness by sending its Incompleteness Determination more than 30 days after the submission of the DAP, in an effort to proceed collaboratively with the Project notwithstanding this dispute, the Applicant hereby submits its first response to the Incompleteness Determination and supplements it with a conversion to a Builder’s Remedy project pursuant to AB 1893 in combination with making this an AB 2011/AB 2243 project as discussed further in this letter.

III. Notice of Intent to Proceed Pursuant to AB 1893
AB 1893, which took effect on January 1, 2025, amends the Housing Accountability Act to establish significant new protections for Builder’s Remedy projects. AB 1893 expressly extends these new protections to Builder’s Remedy projects that, like the Project, predate AB 1893’s effective date.9
6 It is the City itself who has told us that transmission of documents after close of business hours means that they are transmitted on the next business day.
7 In any event, Builder’s Remedy pursuant to Gov. Code Section 65589.5(d)(5) prohibits the City from denying the Project based on any inconsistency with the General Plan or zoning. 8 Gov. Code §65915.
9 See Gov. Code § 65589.5(f)(7)(A) (as amended by AB 1893) (“For a housing development project application that is deemed complete before January 1, 2025, the development proponent for the project may choose to be subject to the provisions of this section that were in place on the date the preliminary application was submitted, or, if the project meets the definition of a builder’s remedy project, it may choose to be subject to any or all of the provisions of this section applicable as of January 1, 2025.”). See also Gov. Code § 65589.5(h)(5) (“Notwithstanding any other law, until January 1, 2030, ‘deemed complete’ means that the applicant has submitted a preliminary application pursuant to Section 65941.1 or, if the applicant has not submitted a preliminary application, has submitted a complete application pursuant to Section 65943.”) (emphasis added).

Michael Forbes
January 7, 2025

Page 6 ends

#515213347_v2
To that end, the Applicant takes this opportunity to inform the City that the Project qualifies for10 and is proceeding as an AB 1893-protected Builder’s Remedy project.

With that in mind, we wish to draw the City’s attention to the following issues concerning the application of AB 1893 to the Project:
• Affordable units. Until December 31, 2024, Builder’s Remedy projects were required to designate 20 percent of their total units affordable to lower-income households.11 AB 1893 lowered these requirements, and provides Builder’s Remedy applicants with flexibility to choose which qualifying affordability levels and percentages they will provide.12 As of January 1, 2025, the Project hereby changes its affordability commitment such that 13 percent of its total units will be set aside for lower-income households, consistent with AB 1893.
13 • Compliance with applicable, objective local standards. Until December 31, 2024, local governments could not require Builder’s Remedy projects to comply with their objective local standards – including zoning standards – unless they are able to make certain rarelyoccurring findings.14 While AB 1893 does not allow local governments to subject Builder’s Remedy projects to the objective standards of the otherwise-applicable zoning designation, it does allow local governments to “require the project to comply with the objective, quantifiable, written development standards, conditions, and policies that would have applied to the project had it been proposed on a site with a general plan designation and zoning classification that allow the density and unit type proposed by the applicant[,]”15 subject to certain restrictions.
10 Specifically, (1) the Project is a “housing development project that provides housing for very low, low-, or moderate-income households,” because “at least 13 percent of the total units … are dedicated to lower income households” (Gov. Code §§ 65589.5(h)(11)(A)), (h)(3)); (2) as of the date of the Applicant’s submittal of a preliminary application pursuant to Government Code § 65941.1, “the jurisdiction did not have a housing element that was in substantial compliance with this article” (Gov. Code §§ 65589.5(h)(11)(B), (h)(5); see also Gov. Code § 65589.55(a)); (3) the Project’s density does not exceed the statutory maximum densities (Gov. Code § 65589.5(h)(11)(C)); (4) the Project site does not have a “minimum density requirement” (Gov. Code § 65589.5(h)(11)(D)); and (5) the “project site does not abut a site where more than one-third of the square footage on the site has been used, within the past three years, by a heavy industrial use, or a Title V industrial use” (Gov. Code § 65589.5(h)(11)(E)).
11 Gov. Code §§ 65589.5(d); (h)(3).
12 Gov. Code §§ 65589.5(d); (h)(3)(C) (as amended by AB 1893). As stated in AB 1893’s adopted legislative findings, this change was specifically intended to “lower barriers to economic feasibility” for Builder’s Remedy projects. See AB 1893, Section 1(i).
13 Gov. Code §§ 65589.5(d); (h)(3)(C)(i)(III) (as amended by AB 1893). 14 Gov. Code § 65589.5(d)(5).
15 Gov. Code § 65589.5(f)(6)(A) (as amended by AB 1893) (emphasis added).

Michael Forbes
January 7, 2025

Page 7 ends

#515213347_v2
The Project meets the Mixed Use Overlay zone standards subject to the Applicant’s utilization of density bonus benefits and the restrictions on the City’s imposition of its standards that are set forth below.16
• SDBL Benefits. As of January 1, 2025, the Project is entitled to utilize three SDBL incentives and concessions, as well as unlimited waivers of development standards that physically preclude the construction of the Project as proposed by the Applicant.17 The Applicant seeks the following relief under SDBL:

Longer construction hours and Saturday construction will allow the Project construction to proceed more quickly, thereby reducing costs of construction and carrying costs that would occur with a longer construction schedule. Shorter construction hours will increase the costs of construction by requiring additional days on the job site. For example, Starting construction activities at 8:00 am would extend the construction schedule by five hours per week, or approximately 2.67-days per month (based on 22 workdays per month). As such, the cost savings will help reduce the cost of providing for affordable housing. (2) The Applicant seeks relief from BHMC § 3-1-802 fine art obligation for no fine art obligation.

Allowing greater flexibility in the placement of affordable units would enable to the Project to receive higher rents for the market rate units that will then help to subsidize the cost of providing affordable housing. For example, top floor units would be able to achieve higher rents than affordable units allowing the market rate units to subsidize the cost of providing 16 The City has not sent any correspondence indicating any inconsistencies with objective local standards within 30 days of application completeness as required by HAA subdivision (j)(2). Therefore, the Project is deemed to comply with all applicable local standards by operation of the HAA. The Applicant’s discussion of the interaction between AB 1893 and the City’s objective local standards should not be construed as a waiver of the Applicant’s position that the Project is separately deemed consistent with those standards. 17 See Gov. Code §§ 65915(d)(2)(A), (e)(1); Gov. Code § 65589.5(f)(6)(C)(i) (as amended by AB 1893).

Michael Forbes
January 7, 2025

Page 8 ends

#515213347_v2
affordable housing. As such, relief from the City’s affordable housing placement requirement would reduce the cost of providing for affordable housing.

Waivers
(1) Height: an additional 204'-1" of overall height above the 45-foot height limit as set forth in BHMC § 10-3-1880A consisting of 250'-11" building height with rooftop amenities.

The 45-foot height limit would result in the need to remove more than 200 feet of the building’s height. Such a reduction in height would cause a massive loss in proposed density. As such, the height standard would physically preclude the Project as proposed, and relief is necessary. (2) Stories: an additional eighteen stories above the three-story limit as set forth in BHMC § 10-3-1880A for a total of 21 stories.

The three-story height limit would result in the need to remove 18 stories of the building’s height. Such a reduction in height would cause a massive loss in proposed density. As such, the height standard would physically preclude the Project as proposed, and relief is necessary. 3) Setback: reduction to zero of the six-foot setback requirement as set forth in BHMC § 10- 3-1884, 10-3-1952 for the alley side of the building (south side).

Per BHMC 10-3-1886, 10-3-2803, at least 200 sf of usable outdoor living space is required per each dwelling unit. 134 units x 200 sf = 26,800 sf required 18,664 sf is provided. If the full amount of open space were provided that the BHMC would otherwise require, there would need to be an additional 8,136 square feet of such open space. Providing such additional open space would require the removal of entire stacks of dwelling units and other building changes that would reduce the density proposed. As such, adherence to this development standard would physically preclude the Project as proposed.
5) Parking Standard - parking ramp width: relief from the parking standards adopted by the city council and on file in the Department of Planning and Community Development. Specific relief to allow for a 18'-0" wide ramp in lieu of 20'-0" minimum required.

Michael Forbes
January 7, 2025

Page 9 ends

#515213347_v2
Widening the parking ramps would result in the loss of parking spaces and circulation areas necessary for operation of the parking garage. As such, adherence to this development standard would physically preclude the Project as proposed.
6) Parking Standard - Parking Stall Dimensions: relief from the parking standards adopted by the City Council and on file in the Department of Planning and Community Development.

Increasing the size of the parking stalls would result in the loss of parking spaces and circulation areas necessary for operation of the parking garage. As such, adherence to this development standard would physically preclude the Project as proposed. 7) Residential Uses Within First 40' of Street Facing Property Lines: relief from BHMC § 10- 3-1877(c) to allow for residential lobby within first 40'-0 of depth from street facing property line.

All dwelling units are located above the first level. Hence there are no residential uses within the first 40 feet of street facing property lines. While the lobby would serve the dwelling units, it does not constitute living area or dwelling units. Further, given that there must be street access to somehow get to the dwelling units, there must be some residential lobby area within forty feet of the streets. As such, this development standard does not appear to apply since there MUST be some street access for the residential uses. No dwelling units would be on the ground floor which seems like the logical meaning for this development standard since the whole point of the Mixed Use Overlay zone is to have residential dwelling units in mixed-use buildings within the zone. Nevertheless, if this development standard does apply, it would physically preclude the Project as proposed since there must be residential access within 40 feet of the street.
• Local standards that render the Project infeasible. As of January 1, 2025, the City is precluded from applying “any individual or combination of objective, quantifiable, written development standards, conditions, and policies to the project that … [r]ender the project infeasible.”18
The Applicant expressly reserves the right to identify local standards that contribute to Project infeasible as the City’s review proceeds, such as the commercial parking separation requirement in BHMC § 10-3-1883(b).
18 Gov. Code § 65589.5(f)(6)(B)(i)(I) (as amended by AB 1893). See also Gov. Code § 65589.5(f)(6)(B)(ii) (as amended by AB 1893) (“The local agency shall bear the burden of proof of complying with clause (i).”).

Michael Forbes
January 7, 2025

Page 10 ends

#515213347_v2
IV. Future Processing
The Applicant would like to briefly address several issues related to the City’s remaining processing of the Project. First, as the City knows, AB 1893 amends the HAA to expressly prohibit local governments from requiring Builder’s Remedy projects to “apply for, or receive approval of, a general plan amendment, specific plan amendment, rezoning, or other legislative approval[,]” and to specify that any such requirement constitutes a violation of the HAA.19 We take this opportunity to remind the City that the Project cannot be required to receive a General Plan Amendment or zone changes – even though the City has indicated in its Incompleteness Determination that a General Plan Amendment and zone change are required. 20 Second, as discussed, AB 1893 prohibits the City from imposing “any individual or combination of objective, quantifiable, written development standards, conditions, and policies to the project that … [r]ender the project infeasible.”21 The Applicant intends to, and likely will, identify further conditions that may not lawfully be imposed pursuant to AB 1893, and requests that the City engage with the Applicant in good faith to proactively waive these requirements.

V. Clear Housing Accountability Act Violations
When the City’s own application forms do not even request the information by which the City uses as a basis to claim the Project is incomplete (and to which the City has NEVER requested such information in an application form or otherwise), it is a clear Housing Accountability Act violation per Government Code Section 65589.5(h)(6).22 Other Housing Accountability Act violations exist including the City’s requirement that the Project must get a legislative entitlement, in violation of Government Code Section 65589.5(h)(6)(G).

Please take note that this letter serves as written notice pursuant to Government Code Section 65589.5(h)(6)(D) that it must “… cease a course of conduct undertaken for an improper purpose, such as to harass or to cause unnecessary delay or needless increases in the cost of the proposed housing development project, that effectively disapproves the proposed housing development…”23 By not just providing the October 2024 incomplete letter stating divestment on the basis of 19 Gov. Code §§ 65589.5(f)(6)(D)(i), (h)(6)(G).
20 The City has never retracted this “requirement” which clearly violates the HAA. 21 Gov. Code § 65589.5(f)(6)(B)(i)(I) (as amended by AB 1893). See also Gov. Code § 65589.5(f)(6)(B)(ii) (as amended by AB 1893) (“The local agency shall bear the burden of proof of complying with clause (i).”). 22 A Housing Accountability Act violation exists here when the City: (1) “(F)(i) Determines that an application for a housing development project is incomplete pursuant to subdivision (a) or (b) of Section 65943 and includes in the determination an item that is not required on the local agency’s submittal requirement checklist. The local agency shall bear the burden of proof that the required item is listed on the submittal requirement checklist.”; and (2) “(H) Makes a written determination that a preliminary application described in subdivision (a) of Section 65941.1 has expired or that the applicant has otherwise lost its vested rights under the preliminary application for any reason other than those described in subdivisions (c) and (d) of Section 65941.1.” 23 Because of the City’s actions thus far, the Applicant has incurred considerable cost both in legal fees and having to go through AB 1893 for greater protection. The City’s hostile actions to divest the Applicant of legal rights is improper.

Michael Forbes
January 7, 2025

Page 11 ends

#515213347_v2
different floor area calculations never even requested by the City in any application form or in any correspondence, but by doubling down in its aggressive December 27, 2024 incompleteness determination for floor area calculations that to this day have never been requested by the City, the City is unlawfully using this as a basis by which it is effectively denying this Project. The City controls its PA and DAP forms; the Applicant has no control over the application forms that the City in its complete and unfettered discretion prepares and creates. The City could have requested GBA information based on the CBC on the PA and DAP forms, but did not and has not. Without vested rights, there is no path forward for this Project at the density proposed. Therefore, the City’s behavior repeated with its December 27, 2024 letter, appears to be on a path to denial of the Project pursuant to Government Code Section 65589.5(h)(6)(D).

VI. Conclusion
Again, we wish to underscore that the Applicant is eager to collaborate with the City to move the Project forward in a manner consistent with state housing law. The need for housing, particularly close to employment and high resource areas is extreme. Our state legislature has found and declared that:
“(A) The lack of housing, including emergency shelters, is a critical problem that threatens the economic, environmental, and social quality of life in California. (B) California housing has become the most expensive in the nation. The excessive cost of the state’s housing supply is partially caused by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing.
(C) Among the consequences of those actions are discrimination against lowincome and minority households, lack of housing to support employment growth, imbalance in jobs and housing, reduced mobility, urban sprawl, excessive commuting, and air quality deterioration.
(D) Many local governments do not give adequate attention to the economic, environmental, and social costs of decisions that result in disapproval of housing development projects, reduction in density of housing projects, and excessive standards for housing development projects.”
24 Over the last 50 years, the City’s population has not just stagnated, but has decreased. “In 1970, the population of Beverly Hills was 33,400. Today, it is 32,400. Over the same period, the number 24 Gov. Code § 65589.5(a)(1).

Michael Forbes
January 7, 2025

Page 12 ends

#515213347_v2
of California residents has doubled to nearly 40 million.” 25 Homeless in the United States is at a
record high.26 Even though the City is 50 percent through the 6th Cycle Regional Housing Needs Allocation period, the City has only permitted one out of 680 allocated low income units and 120 out of 814 above moderate housing units during the current 6th Cycle Regional Housing Needs Allocation, achieving only 0.1 percent attainment for low income dwelling units and 14.7 percent attainment for above moderate dwelling units.27 These facts underscore the great need for housing here and now. The Project will not just help the City achieve its state-mandated allocations, but it will also help the City decrease its substantial population decline while providing housing in close proximity to jobs and very high-quality transit.

Sincerely yours,

HOLLAND & KNIGHT LLP
Ryan M. Leaderman
Luca Trumbull
Enclosures:
• 8820 Wilshire Blvd. Revised Plans
• 1
st Incompleteness Letter Response
• Trip Generation Report (LLG)
• 8820 – Floor Area (Calc. A)
• 8820 – Floor Area (Calc. B)
• 8820 – Floor Area (Calc. C)
• Historic Resources Assessment (KCK)
25 Los Angeles Times, “In Beverly Hills, no kitchen remodels or pool grottoes as judge orders building moratorium over lack of affordable housing,” by Liam Dillon, January 18, 2024, available at https://www.latimes.com/homelesshousing/story/2024-01-18/beverly-hills-affordable-housing-permit-moratorium, accessed January 1, 2025. 26 National Public Radio, “U.S. homelessness jumps to another record high, amid affordable housing shortage,” by Jennifer Ludden, December 27, 2024, available at https://www npr.org/2024/12/27/nx-s1-5241115/us-homelesshud-housing-costs-migrants, accessed January 1, 2025. 27 California Housing and Community Development Housing Element Implementation and APR Data Dashboard, available at https://www hcd.ca.gov/planning-and-community-development/housing-element-implementation-andapr-dashboard, accessed January 1, 2025.

Michael Forbes
January 7, 2025

Page 13 ends

#515213347_v2
• HCD Notice of Violation (December 2, 2024)

efforts to preserve the unique fabric of Beverly Hills while addressing housing needs are greatly appreciated.

Sincerely,
GS Perkins III (South Hamilton Drive)
LETTER SENT 17-June-2024 re: TWO PROJECTS ON S HAMILTON DR.

To: Mr. Edgar Arroyo, Senior Planner
[email protected]
Tel: 310-285-1138
To: Mr. Philip Coronel, Associate Planner
[email protected]
Tel: 310-285-1173
Protest Against Planning Projects at 211-217 and 214-216 South Hamilton Dr.

Dear Mr. Arroyo and Mr. Coronel,
We are writing to express great concern and to lodge a protest against the proposed planning projects by 18 Hamilton, LLC and Flamingo Investments at 211-217 South Hamilton Dr., and PB&J Fund LLC at 214-216 South Hamilton Dr.

Applicant: 18 Hamilton, LLC and Flamingo Investments
Address: 211-217 South Hamilton Dr.

Date filed: April 4, 2024
Number of units: 210 dwelling units (42 lower income)
Number of floors: 12. Parking: 155 spaces
Applicant: PB&J Fund LLC
Address: 214-216 South Hamilton Dr.

Date filed: April 26, 2024
Number of units: 90 dwelling units (18 lower income)
Number of floors: 8. Parking: 13 spaces
As residents and homeowners on S. Hamilton Dr. in Beverly Hills, California, we have several serious concerns regarding these projects.

1. City Must Undertake a Comprehensive and Holistic Review of Both Applications: While these applications appear to be from separate entities, they together represent a massive and untenable change for the city, particularly for this small one-block street of S. Hamilton Dr. It is imperative that the city planners review these applications collectively to fully understand and mitigate the cumulative impact on our neighborhood.

2. Doubling Existing Density: Currently, there are fewer than 200 units on this one-block street. Adding an additional 300 units—210 from one project and 90 from the other—is untenable and would have a drastic and negative impact on the ability of residents to enjoy their homes. This drastic increase would lead to significant congestion on an already busy street that serves a major office building and a theater at the Wilshire Boulevard entrance to S. Hamilton Dr.

3. Traffic Concerns: Beverly Hills is already grappling with high volumes of traffic throughout the day. The proposed developments would exacerbate traffic problems in this small space, creating further pressure on the thoroughfare and potentially leading to gridlock. High-rise buildings are best suited to major thoroughfares, with entry to and egress from the building on a corner lot to facilitate and ease the in-out traffic that a small residential block cannot accommodate.

4. Inadequate Parking: Beverly Hills traditionally has low-density housing with adequate parking provisions for condos, rental buildings, and single-family dwellings. The proposed projects do not provide sufficient parking. For instance, the project at 214-216 South Hamilton Dr. offers only 13 parking spaces for 90 dwelling units, potentially leaving 77 vehicles vying for limited street parking.

Similarly, the project at 211-217 South Hamilton Dr. provides 155 spaces for 210 units, which still leaves a deficit of 55 spaces. This shortfall will inevitably lead to significant parking challenges on this one-block street.

5. Safety Issues: The practicality of hundreds of residents searching for parking, with more than doubling the number of automobiles, raises substantial public safety concerns. S. Hamilton Dr. ends at Beverly Hills Park, a venue hosting multiple activities for neighborhood children daily. The current relative tranquility and safe access to the park would be severely compromised by the increase in traffic.

6. High-rise buildings inappropriate for neighborhood: Erecting multi-story buildings on this small street is inappropriate both in terms of aesthetics – all the homes on the street are low-rise and most have been built to resemble Italian- or Spanish-style villas. A high-rise would ruin the atmosphere.

Additional Concerns:
· Infrastructure Strain: The existing infrastructure may not be able to support such a dramatic increase in population density, leading to potential issues with water, sewage, and other essential services.
· Environmental Impact: The environmental impact of such large developments must be thoroughly assessed, including potential increases in noise and air pollution.

Given the numerous and significant concerns outlined above, we urge the city planners to reject both plans in their current state as impractical from a city planning perspective and disastrous from a quality of living perspective for Beverly Hills residents. These applications should be returned with the instruction to revise the proposals to between 1/10 and 1/4 of the original submission in terms of dwelling units. This reduction is essential to avoid a disruptive shift in the traffic and residential density of the street and the city as well as the overall quality of life of existing homeowners.

Thank you for your attention to these pressing issues.

Sincerely,
Homeowners – 225-227 S. Hamilton Dr. Beverly Hill
--
G. Steve Perkins, III

Beverly Hills City CouncilJanuary 28, 2025

Beverly Hills City Council
January 28, 2025