www.coxcastle.com Los Angeles | Orange County | San Francisco Cox, Castle & Nicholson LLP
50 California Street, Suite 3200
San Francisco, California 94111-4710
P: 415.262.5100 F: 415.262.5199
Scott B. Birkey
415.262.5162
[email protected]
December 20, 2024
IN PERSON AND VIA E-MAIL ([email protected])
Pablo Rubio
City Clerk
City of Hawaiian Gardens
21815 Pioneer Boulevard
Hawaiian Gardens, CA 90716
Re: City Planning Department Case No. PLNG2024-0011-MUP (12347 E. Carson Street) – Appeal to Planning Commission of City Staff Denial on December 12, 2024
Dear Mr. Rubio:
We represent Surf City Boats, Inc. (“Surf City Boats”) in connection with its proposed boat sales project (the “Project”) located at 12347 E. Carson Street (the “Property”), with an Assessor Parcel Number (“APN”) of 7066-017-127, in the City of Hawaiian Gardens (the “City”). We write, on behalf of Surf City Boats, to appeal the City Staff’s December 12, 2024 denial of Surf City Boats’ minor use permit (“MUP”) application for the Project (the “MUP Denial”).
1. Background Facts and Summary of City’s Processing of the MUP Application The approximately 25,182 square foot (“sf”) Property is located on the periphery of the City, sharing its northern border with the neighboring City of Lakewood. Because of the Property’s location, which is not on a major corridor1 and, thus, does not experience significant foot traffic, no significant development has occurred on the Property, and currently the Property is essentially vacant, primarily serving as an unpaved parking area for trucks and trailers. (See City Circulation Plan [depicting that the Property is not along a “major,” “secondary,” or “collector” street]; below Google Maps aerial image.)
1 The Property has no frontage on E. Carson Blvd., notwithstanding its property address.
Mr. Pablo Rubio
[Google Maps aerial image of the Property,
with the red line approximating the City limit]
The Property has a General Plan land use designation of “General Commercial” and consistent with that designation, the Property is zoned “C4 – General Commercial.” (See City General Plan Land Use Map; City Zoning Map.) There is no dispute that the Property’s C4 – General Commercial zoning allows boat sales subject to an MUP. In fact, Surf City Boats’ decision to purchase the Property was done in reliance on the City’s confirmation that boat sales would be permitted on the Property subject to an MUP. Because of the City’s representation that boat sales would be permitted, and that Surf City Boats’ operation would be considered “boat sales,” Surf City Boats applied for an MUP. A brief summary of the MUP application timeline to date is as follows:
On February 20, 2024 (following discussions about the proposed Project and the City’s confirmation that the Project was allowed on the Property’s “C4 – General Commercial” zone subject to the City’s approval of an MUP), Surf City Boats applied for a MUP for the Project. The City accepted the MUP Application and assigned it Case No. PLNG2024-0011- MUP.
On March 12, 2024, the City determined the MUP Application was incomplete (the “First Incompleteness Determination”).
On March 21, 2024, Surf City Boats was informed that City Planner Sophia Tatlyan, who had been handling the MUP Application and related matters up to that point, had been replaced by City Planner Tonya Pace. After this staff transition, the City inexplicably pivoted away from its earlier representations to Surf City Boats that the Project would qualify as a boat sales use and would be permitted on the Property subject to an MUP. On May 1, 2024, the City requested that Surf City Boats provide an unspecified and unidentified state “license” for boat sales on the Property (the “State License Information”).
Mr. Pablo Rubio
On July 10, 2024 and July 22, 2024, Surf City Boats re-submitted the MUP Application to the City in response to the First Incompleteness Determination. On August 28, 2024, the City determined the MUP Application (re-submittal) was again incomplete (the “Second Incompleteness Determination”) due to Surf City Boats’ inability to provide what effectively amounts to a fictitious state “license,” because to our knowledge no such license for this purpose exists.
On October 18, 2024, even though not necessary to do so because of the Permit Streamlining Act (Gov. Code, §§ 65920 et seq., the “PSA”), Surf City Boats submitted a California Department of Tax and Fee Administration “Seller’s Permit” for the Property in the hopes of satisfying the City’s request for some kind of State License Information, as this is the only state licensing requirement Surf City Boats is aware of that is applicable to boat sales. Surf City Boats requested that the City confirm receipt of the abovementioned “Seller’s Permit” from the City. However, no confirmation was ever received. Instead, on December 12, 2024, the City issued the MUP Denial. (See Exhibit A [December 12, 2024 MUP Denial].)
On December 13, 2024, Surf City Boats informed the City that it planned to appeal the MUP Denial, requesting confirmation on the appeal process and requirements. The City responded, six days into the (10-day) appeal period, on December 18, 2024.
2. Statement and Reasons for Appeal
Pursuant to the Hawaiian Gardens Municipal Code (“HGMC”), Surf City Boats provides the following information demonstrating “where a determination or interpretation is not in accord with the purposes of [the Zoning Code]; where the decision was made inconsistently with [the] Zoning Code; where the record includes inaccurate information; or where a decision is not supported by the record.” (Section 18.100.170.B.) More specifically, Surf City Boats appeals the MUP Denial for the following reasons:
a. Contrary to the City’s determination and interpretation, the Project is a boat sales use, which is allowed pursuant to the Property’s C4 – General Commercial zoning subject to an MUP.
b. The City prejudicially abused its discretion in denying the MUP. c. The City violated the PSA in denying and improperly processing the MUP application.
d. The MUP Denial constitutes a “takings” of property without just compensation (and violates other Constitutional principles).
Mr. Pablo Rubio
a. The Property is Zoned for the Boat Sales Use Project There is no dispute that the Property’s C4 – General Commercial zoning allows boat sales subject to an MUP. In evaluating whether Surf City Boats’ use of the property constitutes a boat sales use, City staff appear to be taking the position that some kind of State License Information is required in order for the City to consider Surf City Boats’ use of the Property as “boat sales” rather than “boat storage.” The HGMC includes no such requirement, and the City’s failure to raise this issue in the First Incompleteness Determination, or at any point prior, suggests that any State License Information is not in fact required for the City to determine whether the Project constitutes allowable boat sales, but is rather being used as a pretext for denial.
The Project certainly is a boat sales use. The primary activity on-site is the active display, marketing, and sale of boats to individual customers, with any “storage” of boats being only incidental to and a normal part of this sales process. The storage uses prohibited in the C4 – General Commercial zone involve indefinite or long-term placement of goods without any apparent on-site effort to sell them. (See HGMC, §§ 18.60.020.B, 18.60.050 [e.g., “trucking terminal,” “wholesale distribution and storage,” “warehouse and storage buildings”].) These uses are fundamentally different from Surf City Boats’ proposed use of the Property, where boats will be actively displayed, marketed, and sold from the Property, and where any “stored” inventory turns over as sales are completed.
In fact, the City would receive sales tax revenue from the Project’s boat sales, further confirming the Project as a boat sales use rather than boat storage.
Nor is the Project’s business model a reason to categorize the use as boat storage rather than boat sales. The MUP Denial focuses on the alleged minimal pedestrian traffic anticipated for the Project. Extraneous factors, however, such as the level of foot traffic is not a basis for whether a use should be classified as boat sales or boat storage. In fact, other uses permitted in the C4 – General Commercial zone do not require public-facing operations or unfettered walk-in access to qualify as an authorized use. (See HGMC, §§ 18.60.020.B, 18.60.050 [e.g., “administrative/professional offices, “general offices,” “financial institutions (mortgage, real estate, tax, bookkeeping, credit, insurance, brokers, etc.)”].) b. The City Prejudicially Abused Its Discretion in Denying the MUP The City’s decision whether to issue an MUP is quasi-adjudicatory, requiring it to apply existing standards. Code of Civil Procedure section 1094.5 governs judicial review of adjudicatory decisions by administrative agencies. (Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514.) Under section 1094.5, the inquiry of a court extends to questions about the agency’s jurisdiction to proceed, whether there was a fair trial, and “whether there was any prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5, subd. (b).) An abuse of discretion is established if the agency has failed to proceed “in Mr. Pablo Rubio
the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Id.)
The factual basis behind an agency’s (such as the City’s) decision is reviewed for “substantial evidence . . . in the light of the whole record.” (Code Civ. Proc., § 1094.5, subd. (c).) Substantial evidence is not synonymous with any evidence—rather, it is defined as evidence of “ponderable legal significance … reasonable in nature, credible, and of solid value [, and] relevant evidence that a reasonable mind might accept as adequate to support a conclusion…” (Young v. Gannon (2002) 97 Cal.App.4th 209, 225; accord DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336 [substantial evidence “must be reasonable in nature, credible, and of solid value; it must actually be ‘substantial’ proof of the essentials which the law requires in a particular case.”].) In other words, “[w]here findings are devoid of evidentiary support, or are based upon inferences arbitrarily drawn and without reasonable foundation, or are contrary to facts universally accepted as true and judicially known, the administrative order will be reversed as not being supported by substantial evidence in the light of the whole record.” (Lorimore v. State Personnel Board (1965) 232 Cal.App.2d 183, 187.) The substantial evidence test is essentially a reasonableness test and requires that a reasonable person, having weighed the evidence in the entire record, be able to reach the same conclusion reached by the decisionmaker in order for the decision to be deemed lawful. (Code Civ. Proc., § 1094.5; Kirkorowicz v. California Coastal Commission (2000) 83 Cal.App.4th 980, 986; Sierra Club v. California Coastal Commission (1993) 12 Cal.App.4th 602, 610.) The City’s “findings” in the MUP Denial are predicated entirely on the false premise that the Project constitutes boat storage (rather than boat sales). (See Exhibit A, emphasis added [“[t]he proposed use is not consistent with the General Plan and Zoning Code and may be detrimental to the property or improvements in the surrounding area as a stagnant storage area not manned by any employees or frequented regularly by customer looking to purchase boats is a potential target for crime, vandalism and/or loitering.”].) There is no substantial evidence to support the City’s premise. (See Section 2.a, above; see also Exhibit B [point-by-point analysis establishing why the specific points raised in the City’s December 12, 2024 MUP Denial do not constitute substantial evidence, but are rather unjustified and pretextual bases for denying the MUP].) Consequently, the “findings” inherently fail with the failure of that premise.
Furthermore, the City has no substantial evidence to support its spurious, unfounded, and frankly unfair claim that the Project would become “a potential target for crime, vandalism and/or loitering.” If anything, it is reasonable to conclude the opposite—that the Project would mitigate any such risks by activating underutilized and vacant Property. The Project would revitalize this Property and contribute to a safer and more vibrant environment, not only for the Property but also the surrounding properties. In a similar vein, the sales tax revenue generated from the Project would extend the Project’s benefits to the entire City, by bolstering the City’s overall fiscal health and general welfare.
Mr. Pablo Rubio
c. The City Violated the PSA in Denying and Improperly Processing the MUP Application
The MUP Denial violated the Permit Streamlining Act (Gov. Code, §§ 65920 et seq., the “PSA”). Once a development project (such as the Project) is complete within the context of the PSA, a local agency cannot deny the application on the ground that incomplete information has been provided. (Chino MHC, LP v. City of Chino (2012) 210 Cal.App.4th 1049, 1077–1078 [because Mobilehome park conversion application complete under the PSA, city violated the PSA when it denied an application based on determination that applicant failed to presented sufficient evidence of the nonexistence of a homeowners association related to a “survey of support” finding needed for the conversion]; see Gov. Code, § 65944, subd. (a) [upon receipt of the completeness determination, the PSA prohibits an agency from thereafter requesting that the applicant provide “any new or additional information which was not specified in the list prepared pursuant to Section 65940”].)
Here, based on the timeline provided above, the MUP application was deemed complete, by operation of law, on August 21, 2024, because the City failed to provide a written determination within 30 days of the July 22, 2024 resubmittal. Accordingly, the MUP Denial predicated on Surf City Boats failure to provide some kind of (fictitious) State License Information violates the PSA.
The City’s processing of the MUP application also violated the PSA.2 In short, the Legislature declared when it adopted the PSA that “there is a statewide need to ensure clear understanding of the specific requirements which must be met in connection with the approval of development projects and to expedite decisions on such projects.” (Gov. Code, § 65921.) Accordingly, the PSA mandates transparency in the local review process and prevents agencies from “moving the goalposts” by limiting documentation requests “to those items actually required on the lead agency’s submittal requirement checklist,” and, in subsequent instances, prohibiting “the applicant [from being required] to provide any new information that was not stated in the initial list of items that were not complete.” (Gov. Code, § 65943, subd. (a).) Furthermore, the PSA mandates that local agencies determine in writing whether an application is complete within 30 days of application submittal and re-submittal. (Gov. Code, § 65943 [“If the written determination is not made within 30 days after receipt of the application . . . the application shall be deemed complete for purposes of [the PSA]. Upon receipt of any resubmittal of the application, a new 30-day period shall begin, during which the public agency shall determine the completeness of the application.”].) Because the (fictitious) State License Information was not included on the MUP application submittal requirement checklist or identified as part of the First Incompleteness Determination, it is yet another violation of the PSA for the City to have required Surf City 2 While the City’s processing of the Project is not immediately relevant to this appeal, we include this to the extent Surf City Boats needs to raise it administratively in order to preserve the right to subsequently raise it in court, should (hopefully not) the need arise.
Mr. Pablo Rubio
Boats to provide the (fictitious) State License Information in order for the City to process the MUP application.
d. The MUP Denial Constitutes a “Takings” of Property, which Requites Just Compensation and Violates Other Constitutional Principles Takings without Just Compensation: “[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1014.) There are multiple paths to establish a regulatory “takings.” For example, Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 124 (“Penn Central”) provides a multi-factored test for establishing a takings including [1] the regulation's economic effect on the landowner, [2] the extent to which the regulation interferes with reasonable investment-backed expectations, and [3] the character of the government action.” (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 617, citing Penn Central at p. 124.) Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161, 185–188 (“Lockaway”) has established that a local agency’s about-face in how it applies its code and policies, especially when such change unreasonably impairs the value and use of the property and interferes with distinct investment-backed expectations, makes an agency (such as the City) liable for a temporary taking under the Penn Central test. Here, there is no denying that the MUP Denial interferes with Surf City Boats’ distinct investment-backed expectations (who purchased the Property specifically for a boat sales use, after confirming such with the City).
Nor is there any question that the MUP Denial impairs the value and use of the Property— especially considering the Property has historically only been an unpaved parking area for trucks and trailers.
Surf City Boats believes these are sufficient grounds for a court to find the MUP Denial constitutes a taking, especially considering the current composition of the Supreme Court is readily inclined to interpret takings precedent more favorably to property owners. (See Sheetz v.
County of El Dorado, 601 U.S. 267 (2024); Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021); Pakdel v. City & County of San Francisco, 594 U.S. 474 (2021); Knick v. Township of Scott, Pennsylvania, 588 U.S. 180 (2019).)
Other Constitutional Violations: Apart from the abovementioned takings claim, other Constitutional challenges would be available to Surf City Boats in connection with the MUP Denial. If the State License Information requirement (which is a fictitious requirement) has been selectively imposed on Surf City Boats, in contrast to other projects that might have actual and legitimate state licensing requirements but for which the City does not require the project applicant to provide evidence of such during the entitlement processing stage, then such conduct would appear to be mere pretext to discriminate against the Project. The City, thereby, could be found to have infringed upon Surf City Boats’ due process and equal protection rights as secured by the Fourteenth Amendment of the United States Constitution and article I, section 7(a) of the California Constitution. (See, e.g., Village of Willowbrook v. Olech (2000) 528 U.S. 562 [equal protection claim successfully brought by a “class of one” where the plaintiff was required to Mr. Pablo Rubio
provide a 33-foot easement when other similarly situated property owners only had to provide an 18-foot easement].)
* * *
In light of the above, we request that the Planning Commission grant this appeal and issue an approval for the MUP based on the following required findings:
1. That the proposed use is consistent with the general plan.
2. That the proposed use is not contrary to the objectives of this Zoning Code or to the objectives of the applicable regulations.
3. That the proposed use will be located, operated, and maintained in a manner consistent with the policies of the general plan and the provisions of this Zoning Code.
4. That the proposed use will not be detrimental to the property or improvements in the surrounding area or the public health, safety, or general welfare. (HGMC, § 18.100.050.E.)
As to the first finding—the Project is consistent with the General Plan.3 As discussed above, the Property has a General Plan land use designation of General Commercial. (See City General Plan Land Use Map.) This designation supports a “broad range of commercial services and uses,” which would include the boat sales Project. (General Plan, p. 51.) The Project, including its improvements and upgrades to the Property, is consistent with the goals and policies of the General Plan, including, but not limited to, Goal LU-1 [Provide opportunity for continued revitalization of a balanced community], Policy LU-4.2 [Encourage development of vacant and underutilized commercial parcels], Goal LU-7 [Ensure the compatibility of land uses in close proximity to residential areas and public facilities], and Goal ED-1 [Encourage a balanced mix of commercial and industrial land uses to support the community].
As to the second finding—the Project is not contrary to the objectives of the Zoning Code or to the objectives of the applicable regulations. As discussed above, the Project is consistent with the Property’s C4 – General Commercial zone, as this zone allows for the boat sales Project with approval of an MUP. The Project will comply with all applicable regulations. 3 The goal of consistency is accomplished, if, considering all its aspects, the project will further the objectives and policies of the general plan and not obstruct their attainment. A given project need not be in perfect conformity with each and every general plan policy. It is enough that the project is compatible with the plan's objectives, policies, general land uses, and programs. (Save Livermore Downtown v. City of Livermore (2022) 87 Cal.App.5th 1116, 1124.)
Mr. Pablo Rubio
As to the third finding—the Project will be located, operated, and maintained in a manner consistent with the policies of the General Plan and the provisions of the Zoning Code. As discussed above, the boat sales Project, inclusive of its location, operation, and maintenance, is consistent with the General Plan’s goals and policies as well as the Zoning Code.
As to the fourth finding, the Project will not be determinantal to the property or improvements in the surrounding area or the public health, safety, or general welfare. The boat sales Project has been thoughtfully designed and will be maintained to ensure compatibility with the surrounding area. Accordingly, there will be no detrimental impacts (e.g., noise impacts) to the surrounding area. In fact, by revitalizing the long-underutilized Property, the Project supports the public health, safety, and general welfare by improving the surrounding area’s aesthetic and economic appeal and, thereby, contributing to a safer environment as well.
Moreover, the sales tax revenue generated from the Project would extend the Project’s benefits to the entire City, by bolstering the City’s overall fiscal health and general welfare.
Furthermore, while the Project requires California Environmental Quality Act (“CEQA”) clearance, substantial evidence supports the Project as categorically exempt4 from CEQA under the New Construction or Conversion of Small Structures exemption and the In-fill Development Projects exemption. (CEQA Guidelines, §§ 15303 and 15332.) None of the exceptions to a categorical exemption are present. (CEQA Guidelines, § 15300.2.) Namely, substantial evidence supports that the location exception, cumulative impacts exception, unusual circumstances exception, scenic highways exception, hazardous waste site exception, and historical resources exception do not apply to the Project. (Id.) * * *
Given that there is no legally adequate basis for the Planning Commission to uphold the MUP Denial, and considering the MUP Denial’s violations of state law and constitutional principles, including the possibility of constituting an uncompensated “takings,” we strongly urge the Planning Commission to overturn the MUP Denial and approve the Project. Surf City Boats reserves its right to supplement this appeal letter prior to the hearing on the appeal, which must be heard within 45 days of this letter (i.e., by February 3, 2025). (HGMC, §
18.100.070.B.)
4 Categorical exemptions are classes of projects that the Secretary of the Natural Resources Agency, with the authorization of the Legislature, has determined are exempt because they do not have a significant effect on the environment. (IBC Business Owners for Sensible Development v. City of Irvine (2023) 88 Cal.App.5th 100, 132.)
Mr. Pablo Rubio
Yours truly,
Cox, Castle & Nicholson LLP
Scott B. Birkey
Cc: Tonya Pace, Senior Planner ([email protected]) Elise McCaleb, Community Development Director ([email protected]) Megan Garibaldi, City Attorney ([email protected]) Mr. Pablo Rubio
Exhibit A
[December 12, 2024 MUP Denial]
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HAWAIIAN GARDENS
via email: [email protected]
December 12, 2024
Mr. Andrew Hard
16360 Pacific Coast HWY, Ste 216
Huntington Beach, CA 92649-1813
Subject: Case #PLNG2024-0011 MUP - Deny Application (Boat Sales) Location: 12347 E. Carson Street, Hawaiian Gardens, CA 90716 Dear Mr. Hard:
The City’s Planning Department received your application for a Minor Use Permit (MUP) Application for Boat Sales on property located at 12347 E. Carson Street, Hawaiian Gardens in the C-4 (General Commercial) Zone (APN: 7066-017-127) (“Property”). We also received your Business Description, California Department of Tax and Fee Administration Seller’s Permit, and responses to the City’s questions in subsequent emails. Upon further review of the entirety of your submittal which consists of all of the documents you have submitted and responses, both verbally and in writing to City questions, the City is unable to make the findings required by the Hawaiian Gardens Municipal Code (“HGMC”). As explained in more detail below, your application for a Minor Use Permit (“MUP”) is not approved for the reasons set forth.
The use Table found in Section 18.60.050 (Uses Permitted in Non-Residential Zones) of the HGMC allows auto sales (new or used)1 as a use that is permitted in the C-4 zone (where the Property is located) subject to issuance of a MUP. Section 18.100.050 (E) lists the required findings for a MUP and states:
“In granting a Minor Use Permit, the Director shall make the following findings:
1.That the proposed use is consistent with the General Plan;
2.That the proposed use is not contrary to the objectives of this Zoning Code or to the objectives of the applicable regulations;
3.That the proposed use will be located, operated, and maintained in a manner consistent with the policies of the general plan and the provisions of this Zoning Code;
1 HGMC section 18.20.030 defines “automobile sales area” to include “an open area or building used for the display or sales of new or used automobiles, trucks, trailers, or boats.” (emphasis added).
CITY OF “Our Youth – Our Future”
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4. That the proposed use will not be detrimental to the property or improvements in the surrounding area or the public health, safety, or general welfare.” Based on all of the totality of your application, including your admitted description of how the Property is going to be used and the proposed site layout, the City finds that your operations are more akin to boat storage – which is not a permitted use and thus the City cannot make any of the required findings for the MUP. The proposed use is not consistent with the General Plan and Zoning Code and may be detrimental to the property or improvements in the surrounding area as a stagnant storage area not manned by any employees or frequented regularly by customer looking to purchase boats is a potential target for crime, vandalism and/or loitering.
The above determination is based on your description of how the site will be used. In our meetings and written correspondence, you indicated that you will keep your waterfront office elsewhere (outside of the City of Hawaiian Gardens), that no staff will be onsite, and that you will only occasionally bring a customer to the site to pick up their boat and trailer it to the water for “test drives”. This description supports the City’s determination that the proposed use is more akin to boat storage as the Property will be used as an open air warehouse for boats that are moved elsewhere via trailer to “test drive” the boat. Further it is unclear to the City that if a sale is made in the aforementioned example, where the point of sale will be and where the appropriate sales tax will be paid.
The following is a timeline of the application process:
• 2/20/24 - Application submitted
• 2/20/24 - Application Payment
• 3/12/24 - Application Deemed Incomplete
• 4/30/24 - Meeting to discuss Proposed Project with Applicant • On 5/1/24, City Planning staff requested business information from you regarding your State License for Boat Sales (email dated 5/2/24). Specifically, City Planning staff asked which Boat Sales license type you will obtain for the proposed Boat Sales business.
• On 7/3/24 City Planning staff again requested the same information (email from 5/1/24) and that the information be submitted by 7/17/24. No State license information was provided in response to the request.
• On 8/28/24 an incomplete letter was issued, indicating that the State License information was not received, and the proposed project application was deemed incomplete.
• To date, the City has not received the State License information for Boat Sales. • On 10/18/24, you sent a letter outlining reasons why you believe we should issue the MUP, and you provided a California Department of Tax and Fee Administration Seller’s Permit (one component required by the State for resale of products in the State of California). No Boat Sales license was provided (agent or broker license).
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Without other information indicating that boat sales will occur, the City is unable to make the required findings to support your proposed project – boat sales. This very same information was discussed with you previously in the City’s August 28, 2024 letter. This was done in the spirit of collaboration to try and work with you. This official determination is being issued based on your request.
If you disagree with Staff's determination, you may file an appeal of this determination per HGMC 18.100 within ten (10) days of the date of this letter.
Thank you,
Tonya Pace
Senior Planner
Mr. Pablo Rubio
Exhibit B
[Responses to City Staff’s December 12, 2024 MUP Denial Assertions] MUP Denial Assertion Response
“Based on all of the totality of your
application, including your admitted
description of how the Property is going to
be used and the proposed site layout, the
City finds that your operations are more
akin to boat storage – which is not a
permitted use and thus the City cannot
make any of the required findings for the
MUP.”
In addition to the points raised in the body
of the appeal letter, we note that the City
has failed to provide any specifics details
how a boat storage site would differ in
layout from a boat sales site (the latter of
which all parties agree is allowed on the
Property’s C4 – General Commercial
zoning with the approval of an MUP).
The City provided feedback on the
Project’s proposed site layout, yet failed to
identify any specific design features that
would distinguish a boat “sales” site from a
boat “storage” site. One would reasonably
expect such distinctions to have been
discussed at that time (or at any time
during the months the MUP application
was pending before City staff). This raises
concerns about the legitimacy of the City’s
insistence on this point at this time.
“The proposed use is not consistent with
the General Plan and Zoning Code and
may be detrimental to the property or
improvements in the surrounding area as a
stagnant storage area not manned by any
employees or frequented regularly by
customer looking to purchase boats is a
potential target for crime, vandalism and/or
loitering.”
In addition to the points raised in the body
of the appeal letter, we note again that the
boat sales Project is consistent with the
General Plan and Zoning Code with the
approval of an MUP.
The assertion that the Project would be a
stagnant storage area not manned by any
employees or frequented regularly by
customers looking to purchase boats is
unfounded. In reality, it is expected that
employees and/or customers will be on-site
daily. Like many appointment based
business, Surf City Boats schedules
appointments to show boats when it has a
potential customer(s). It is illogical to
assume that Surf City Boats would pursue
Mr. Pablo Rubio
MUP Denial Assertion Response
a stagnant storage area, as it does not
generate Surf City Boats income.
The City has no substantial evidence to
support its spurious, unfounded, and
frankly unfair claim that the Project would
become “a potential target for crime,
vandalism and/or loitering.” If anything, it
is reasonable to conclude the opposite—
that the Project would mitigate any such
risks by activating underutilized and vacant
Property. The Project would revitalize this
Property and contribute to a safer and more
vibrant environment, not only for the
Property but also the surrounding
properties. In a similar vein, the sales tax
revenue generated from the Project would
extend the Project’s benefits to the entire
City, by bolstering the City’s overall fiscal
health and general welfare.
“In our meetings and written
correspondence, you indicated that you
will keep your waterfront office elsewhere
(outside of the City of Hawaiian Gardens),
that no staff will be onsite, and that you
will only occasionally bring a customer to
the site to pick up their boat and trailer it to
the water for “test drives”. This description
supports the City’s determination that the
proposed use is more akin to boat storage
as the Property will be used as an open air
warehouse for boats that are moved
elsewhere via trailer to “test drive” the
boat. Further it is unclear to the City that if
a sale is made in the aforementioned
example, where the point of sale will be
and where the appropriate sales tax will be
paid.”
In addition to the points raised in the body
of the appeal letter, we note that the fact
that Surf City Boats maintains an office
elsewhere (outside of the City) is irrelevant
to the MUP application for the specific
Project. The same criticism can be made
of any use, such as a bakery, having its
administrative offices in a different city.
The City’s reference to boats being moved
off-site for “test drives” is logical,
considering the necessity of a large body of
water, such as the nearest ocean access
point, for conducting such tests.
The sales made from the Project will be
attributed to the Property in the City, as
demonstrated by the provided California
Department of Tax and Fee Administration
(“CDTFA”) “Seller’s Permit,” which
shows the address of the Property. As per
the CDTFA, this documentation confirms
Mr. Pablo Rubio
MUP Denial Assertion Response
that a portion of the sales taxes paid will be
allocated to the City.
Without other information indicating that
boat sales will occur, the City is unable to
make the required findings to support your
proposed project – boat sales.
See the body of the appeal letter, showing
that the required MUP findings for the
Project are supported by substantial
evidence.