Jennifer J. Lynch
Manatt, Phelps & Phillips, LLP
Direct Dial: (714) 371-2516
[email protected]
Manatt, Phelps & Phillips, LLP 695 Town Center Drive, 14th Floor, Costa Mesa, California 92626 Tel: 714.371.2500 Fax: 714.371.2550 Albany | Boston | Chicago | Los Angeles | New York | Orange County | Sacramento | San Francisco | Silicon Valley | Washington , D.C.
October 24, 2023 Client-Matter: 65844-030
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Mayor Santangelo
Vice Mayor Trembley
Councilmember Tennessen
Councilmember Kildee
Councilmember Martinez-Bravo
City of Camarillo
601 Carmen Drive
Camarillo, CA 93010
Re: 10/25/23 Agenda Item P: Triennial Review of Referral for NUWI Camarillo, LLC
Dear Mayor Santangelo and the City Council of the City of Camarillo:
This law firm represents NUWI Camarillo, LLC (“NUWI” or “Applicant”). On behalf of NUWI, we are writing to confer our serious concerns about the Agenda Report prepared by staff in regard to the Triennial Review of the Referral for General Plan Amendment (“GPA”) 2017-2, in relation to the Camarillo Springs Project.
As you know, the Camarillo Springs Project has been pending before the City since 2017.
It proposes to change the General Plan land use designation on 31 acres of the existing Camarillo Springs Golf Course from Quasi-Public to Low-Medium Density Residential. On September 27, 2017, the City Council voted to process the Referral for GPA 2017-2, and again on September 23, 2020, the City Council voted to continue processing the Referral. Like the item before the Council now, on September 23, 2020, the Referral was before the Council at a Triennial Review.
At no time during the September 2017 or September 2020 reviews did staff raise concerns about the consistency of the proposed Project with the General Plan. However, now, six years into the processing of the project, staff alleges GPA 2017-2 may result in “General Plan impacts,” and “negative impact[s] on the welfare of the community.” (Agenda Report, pp. 6-10.) Not only are these allegations completely unsupported by any evidence in the Agenda Report, they are flatly inconsistent with the fact-based analyses presented in the project’s Environmental Impact Report (“EIR”). Unfortunately, this eleventh hour sandbagging hints of post-hoc rationalization and an attempt to provide the City Council some ground for rescinding the Referral for GPA 2017-2 without holding a proper hearing on the merits of the project, as due City Council, City of Camarillo
October 24, 2023
process requires. For the Council to rescind the GPA 2017-2 Referral on October 25, 2023, would raise several legal issues.
First, as a threshold matter, should the City Council choose to use the Triennial Review process as premature way to kill the Camarillo Springs project, this would be a clear misapplication of City Council Policy 7.01, which, on its face, is designed to coordinate the processing and timing of amendments to mandatory general plan elements, which are limited by state law to no more than four per year, and ensure internal consistency within the General Plan as a whole, another state law requirements. (Policy 7.01, §§ A(1), (2).) The General Plan amendment referral process was clearly not enacted to provide for ad hoc approval or disapproval of a project based on the merits of the project, or a balance of a project’s benefits against its environmental impacts. Policy 7.01 makes clear amendment referrals are not equivalent to project approval: “Fulfillment of the general criteria for amendment consideration does not, however, assure or even imply the ultimate approval or disapproval of a General Plan amendment by the City Council. That is, decisions on the contents of the General Plan are by law based solely on the best judgment and discretion of the City Council, made after due process and deliberation.” (Policy 7.01, § A(3), emphasis added.) City Council Policy 7.01 does not imbue the Council with authority to consider and deliberate on the merits of the project.
It directs the Council only to consider whether, under the five “Review Criteria” identified under Section B of the policy, to continue processing GPA 2017-2. Notably, nothing about the project has changed in regard to the five “Review Criteria” since either 2017, when the Council first voted to study the Referral, or 2020, when the Council again voted to continue processing the Referral. No change in the project’s consistency with the General Plan has occurred since the inception of the project.
Second, it is wholly unclear from the description presented in the October 25, 2023 meeting agenda what action the City Council is actually considering. The description for Agenda Item P reads: “Staff recommends that the City Council conduct the Triennial Review and provide direction to staff on any actions it deems proper regarding the General Plan Referral request of NUWI Camarillo, LLC.” However, stating in an agenda description that the City Council may take “any actions it deems proper” is not consistent with the City’s duties under the Ralph M. Brown Act (Govt. Code, § 54950 et seq.) (“Brown Act”). The Brown Act unequivocally requires that local public agencies provide at least 72 hours’ notice of the action it will be considering at a public meeting. (Govt. Code, § 54954.2.) The agenda description must identify “each item of business to be transacted” at the meeting. (Govt. Code, § 54954.2(a)(1).) If an agenda could satisfy this requirement by only stating that the agency might take “any action it deems proper” such a loophole would obviously swallow the rule, and render the Brown Act’s sacrosanct agenda notice requirement meaningless. (See, e.g., Olson v. Hornbrook Community Services District (2019) 33 Cal.App.4th 501, 519, citing San Diegans for Open Govt. v. City of Oceanside (2016) 4 Cal.App.5th 637, 643 [“agenda drafters must give the public . . . more than City Council, City of Camarillo
October 24, 2023
mere clues from which they must then guess or surmise the essential nature of the business to be considered”].)
Third, the Agenda Report’s allegations that GPA 17-2 would result in “General Plan impacts” is unfounded and blatantly at odds with the City’s own administrative record and factual determinations. In short, the EIR already concluded that this project is consistent with the City’s General Plan. The Agenda Report’s attempt to fashion heretofore unmentioned inconsistencies is inappropriate, violates due process, and is not only unsupported, but wholly contradicted, by the evidence in the administrative record. The Agenda Report’s brand new claims of General Plan inconsistency were never raised at the 2020 Triennial Review. This, coupled with the fact that the City’s own EIR came to the opposite conclusion leaves the impression that staff is contorting itself to provide some ground upon which the Council can point to for rescinding the Referral. But the law does not permit public agencies to randomly assert conclusions—instead, the law mandates that public agencies “set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” (Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515; see also 516 [“a findings requirement serves to conduce the administrative body to draw legally relevant subconclusions supportive of its ultimate decision; the intended effect is to facilitate orderly analysis and minimize the likelihood that the agency will randomly leap from evidence to conclusions”].)
Yet, here, the Agenda Report does “randomly leap” to conclusions that are directly counter to the evidence presented in the City’s own environmental impact report. The Agenda Report states that because GPA 2017-2 will redesignate a portion of a failing 18-hole golf course to Low-Medium Residential and reconfigure the rest of the course to a more viable 12-hole course, the “change to the General Plan to remove open space and replace it with residential uses may have a negative impact on the welfare of the community given all of the important benefits open space provides.” (Agenda Report, p. 8.) Yet, there is absolutely no “bridge” provided between this actual proposed project and the Agenda Report’s conclusion. This project will redevelop a failing golf course, replace it with not just housing but myriad recreational amenities, and reconfigure the remaining portion of the course to not just a more viable model, but a model that is necessary to ensure the course’s continued survival. These are not just the assertions of the applicant, but the findings of the City’s own Business Analysis of the Camarillo Springs Golf Course Report, which concludes that the project is necessary to the continued viability of the golf course.
1 Worse yet, the unsupported conclusion in the Agenda Report is directly at odds with the
1 See, e.g., Business Analysis of the Camarillo Springs Golf Course, prepared by NGF Consulting on behalf of the City of Camarillo, p. 2 (The course’s “current (2023) condition is poor and the property is at risk of failure” ), (“The observed financial condition of CSGC in 2023 is not sustainable and will eventually lead to total system failure and the facility’s inability to earn enough revenue to cover basic expenses”); (“The CSGC property is set up well to accommodate some form of facility alteration that would involve a reduction in the number of golf holes and new property available for alternate development”); (“If undertaken, altering CSGC to a high- quality golf course (9 City Council, City of Camarillo
October 24, 2023
conclusions of the EIR, which determines that the project was consistent with the General Plan. (EIR, pp. 5.10-6, 5.10-7 et seq. [Table 5.10-2].) How the City’s EIR can conclude one thing, and the Agenda Report the exact opposite, is in no way clear.
Similarly, the Agenda Report claims that the removal of golf course acreage will somehow result in a parkland deficiency. The Agenda Report reads, “As the City is already deficient in the amount of parkland, a loss of golf course open space may have a further negative impact on the welfare of the community.” (Agenda Report, p. 8.) This post-hoc rationalization is directly contradicted by the City’s own EIR, which analyzed the impacts of the project on the provision of parkland, and specifically concluded that the parkland provided by the project “would exceed the VPRPD and the City overall standard of 5 acres of parkland per 1,000 residents.” (EIR, p. 5.13-4.) Further, and as noted in the EIR and wholly ignored by the Agenda Report, “the project applicant has agreed to provide a fee to the PVRPD to help develop or expand public park facilities within Camarillo.” (EIR, p. 5.13-4.) The EIR concludes that both cumulative and direct impacts to parkland, recreation, and other public facilities would be less than significant. (EIR, pp. 5.13-4 through 5.13-6.) The Agenda Report’s conclusion otherwise is not based on fact.
The Agenda Report also alleges that “[a] change in the land use designation to allow for residential development on a 31-acre portion of the golf course would substantially affect [the] current views” of adjacent mobile home residents, implying that this is somehow inconsistent with the General Plan. However, it is unclear how many residents (the closest of which are approximately 250 feet away) would actually be allegedly affected, and, notably, the City’s EIR concluded otherwise. The EIR considered whether the project would “conflict with applicable zoning or other regulations governing scenic quality” and determined that it would not. As part of this analysis, the EIR specifically considered whether the project would be consistent with the City’s General Plan Community Design Element, and determined that the project was consistent. (EIR, pp. 5.1-11 and -12.)
In regard to wildfire, the Agenda Report claims, vaguely, that “[a] change in land use on a portion of the golf course to allow for residential development, should consider whether to avoid placement of such uses in areas subject to high or extreme wildfire threats that could place future development at risk.” (Agenda Report, p. 10.) But the EIR already considered whether
or 12 holes) that will be more desirable than a poor-quality 18-hole golf course will be beneficial to CGC and the City of Camarillo”); p. 6 (“Camarillo Springs GC is an aging golf facility that had been experiencing declining participation but gained a significant boost with a surge in golf interest in the last 203 years, although this too may be waning. Despite the increase in activity and revenue in 2020-2022 the facility still has an urgent need for new capital investment to enhance the golf course and clubhouse. Without this new investment, it is not likely that the CSGC facility can earn the revenue it needs to sustain itself for the longer term, and thus the NGF does not see this as a viable golf facility business enterprise in its current condition”). As determined by the City’s study, the course requires at least $6.8 million of new capital, currently loses money every year, and the County of Ventura has reduced the property’s valuation by 50%.
City Council, City of Camarillo
October 24, 2023
the proposed project would result in wildfire risks, and it determined that it would not.
Specifically, the EIR includes a fact-based analysis that determines the project would not substantially impact emergency response or evacuation, the project would not exacerbate wildfire risk, the project would not require the installation or maintenance of associated infrastructure that might exacerbate wildfire risks, and would not expose people or structures to significant risks as a result of post-wildfire flooding, landslides, runoff, post-fire slope instability, or drainage changes. (EIR, pp. 5.16-6 through 5.16-10 [Revised DEIR].) 2 Finally, it is becoming increasingly clear that the City is intent on denying any fair use of the existing, but failing, Camarillo Springs Golf Course. If the City wishes to ensure the use of the golf course, in a configuration that the City’s own financial and business consultants have determined infeasible over the long term, that loses money every year, and that requires, per the City’s own consultant, at least $6.8 million of new capital, this constitutes a taking of private property, without just compensation.
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In conclusion, we urge the Council to refrain from taking any action on October 25, 2023, that would result in a misuse and misapplication of City Council Policy 7.1, that would violate the Brown Act’s noticing requirements, that would violate the City’s duty to only take action based on adequately supported findings of fact, and that could constitute a taking of private property without just compensation.
Sincerely,
Jennifer J. Lynch
2 In addition to the unsupported claims in the Agenda Report that GPA 2017- 2 will result in “General Plan impacts” associated with open space, parkland, views, and wildfire—again, in direct contradiction to the City’s conclusions in the EIR and in past Referral reviews—the Agenda Report also alleges that the issues raised in the October 14, 2022 3rd Party Drainage Review “have not been resolved.” But NUWI and its technical consultants provided a detail ed, point-by-point response to each of the issues raised in this 3rd Party Review. This response letter and technical memorandum were submitted to the City during the public review and comment period on the Revised DEIR.
While we understand that the Triennial Review is not the forum for addressing the adequacy of the CEQA document, or for balancing the benefits of the project against its environmental impacts, the fact that the Agenda Report does not even acknowledge the existence of the Applicant’s response to the 3rd Party Drainage Review is misleading and further speaks to our concern that the Agenda Report does not provide an objective analysis of the project.
City Council, City of Camarillo
October 24, 2023
cc: Rachel Richman
Greg Ramirez
David Moe
Adam Browning
Jason Han
Jonathan Frankel
Susan Hori, Esq.
402475046.2