NEWMEYER Newmeyer & Dillion LLP
895 Dove Street
DILLION + Fifth Floor
Newport Beach, CA 92660
949 854 7000
May 6, 2022 Gregory D. Tross
Greg. [email protected]
VIA E-MAIL AND PERSONAL DELIVERY
Mayor Barbara Delgleize 2022 MAY -6 PM
and Members of the City of Huntington Beach RECEIVED
City Council
C/O City Clerk Office
2000 Main Street
Huntington Beach, CA 92648
Re: File No. 22-324 - Entitlement Plan Amendment No. 22-003 (7-Eleven Gas Station and Convenience Store) - Appeal of Planning Commission Decision to City Council
Dear Mayor Delgleize and Members of the City Council,
This office represents AF-GHBM, LLC ("Appellant"), owners of the real property located at 16171 Beach Boulevard, Huntington Beach, California ("Property"). Appellant hereby appeals the April 26, 2022 denial by the City of Huntington Beach ("City") Planning Commission of Entitlement Plan Amendment No. 22-003. This letter presents a preliminary statement of the grounds for this appeal. Appellant reserves the right to amend and/or supplement its grounds for the appeal letter up to and at the time of the City Council's hearing.
1. Appellant Information.
Appellant Name: AF-GHBM, LLC
Appellant Address: 2521 Fairmount Street,
Dallas, TX 75201
Summary of Reasons for Appeal.
(A) General Background on Project.
In 2019, Appellant's lessee, 7-Eleven, and its representative applied to the City to demolish an existing auto repair building and construct a convenience store operating 24 hours per day with Type 20 (Off-Sale Beer and Wine) ABC license and an eight- pump fueling station at the Property ("Project"). (Staff Report re Conditional Use Permit Las Vegas | Newport Beach | Walnut Creek
newmeverdillion.com
City of Huntington Beach
May 6, 2022
No. 19-014.) Appellant representatives discussed the potential to pay in-lieu fees for undergrounding utilities with City staff during the application process and the City was willing to support that option. On or about January 28, 2020, the City's Planning Commission voted to approve Conditional Use Permit No. 19-014 with conditions. One of those conditions, No. 6(b), required:
"B. All existing overheard utilities that occur along the project's westerly property line shall be under-grounded.
This includes the Southern California Edison (SCE) aerial distribution lines (12kV) and poles (nos. 102601NG and
1039478E) along the entire length of the westerly property line of the subject project. This condition also applies to all utilities, including but not limited to telephone, electric, and Cable TV lines. If required, easements shall be quitclaimed and/or new easements granted to the corresponding utility companies.
Appellant did not become aware of this condition until three days after the appeal period ended on Planning Commission's adoption of CUP No. 19-014. In February and May 2020, Appellant's representatives met with City staff, regarding a request to pay a fee in-lieu of performing the undergrounding, as is customary for this type of work. City representatives remained open to the idea as a manner of satisfying the condition set forth in CUP 19-014.
In March 2021, Appellant's representatives again met with City representatives to discuss the mounting financial burden placed on them by Condition No. 6(b). At that time, the City's representatives observed that City Council members were not inclined to accept in-lieu fees for undergrounding of utilities.
In February 2022, the undergrounding work became so costly that Appellant was forced to halt construction and seek a reprieve from the onerous condition. The work completed already on the Property had far exceeded other in lieu fees developers paid in the area. The table shows similar costs paid by developers for undergrounding utilities at or near their property.
Project
Estimate
Footage
7-11 Retail 7012 548,140 120 fl. 14,200 st 511.46 S401.17 Edinger
laza Marir 1548,000 264 ft. 5,605 sl 284 f. 58.56 S181.82 5161 Springda
7-11 Retail 6012 572,000 353 H. 3,400 st 360 f. 521.18 S203.97 Chase Bank 20001 586,000 440 F 14,335 sl 1440 H. $19.84 S195.45 But 1762- 353,000 110 Fl. 35.640 s/ 564 f. 151.49 5481.82 17762 Beach
5189,530 7500 ft. 19.997 st 618.96 5379.06
Fist a in 8582751 200 fl. 2032381 2641. 5242.25 S2,813.76 City of Huntington Beach
May 6, 2022
Because it was becoming clear to Appellant that it could not satisfy the condition, Appellant once again sought modification of Condition 6(b) from the Planning Commission.
(B) The City's Undergrounding Condition Constitutes Results in Disproportionate Burdens on Appellant.
In accordance with long-standing precedent, a city's imposed development conditions must have an "essential nexus" that is roughly proportional to the impacts attributable to the proposed development and. (See, e.g., Alliance for Responsible Planning v. Taylor (2021) 63 Cal.App.5th 1072, 1085 ("Taylor") citing Dolan v. City of Tigard (1994) 512 U.S. 374, 396; Koontz v. St. Johns River Water Management Dist. (2013) 570 U.S. 595, 605-606.) The nexus requirement ensures that a city, in imposing exactions to mitigate proposed development's impacts, does not leverage its legitimate interest in mitigation to pursue governmental ends that lack a rough proportionality to those impacts. (Koontz v. St. Johns River Water Management Dist., supra, 570 U.S. at pp. 605-606.)
The court in Taylor dealt with similar conditions to the ones requested by the City here. There a county established policies to condition development permits on the developer's completion or construction of road improvements. The court noted that the policies requested casted a wider net than the harm resulting from an individual project, leaving both Nollan and Dolan factors lacking. (Alliance for Responsible Planning v.
Taylor, supra, 63 Cal.App.5th at p. 386.) The court also noted mitigation to complete improvements to address those beyond the property owners exceeds the rough proportionality standard. (Ibid.) Citing Dolan, the court noted the rough proportionality required the government to make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development. (Ibid.)
The requirement to have one property owner bear the burden to underground utilities that serve multiple properties along Beach Boulevard and Stark Avenue -- as well as the community at large -- conflicts with the above standards. Put another way, requiring the Appellant to underground these utilities is not roughly proportional to the impact imposed by Appellant's development. Undergrounding these utilities is a public initiative, not a private one to be borne by a single property owner. Nor has the City proposed a development impact fee reimbursement arrangement whereby the City reimburses Appellant for the underground work and obtains funds from future development within the vicinity. Courts have noted that these arrangements - when undertaken correctly - may meet the nexus standard. (Alliance for Responsible Planning v. Taylor, supra, 63 Cal.App.5th at 806, citing Larson v. City and County of San Francisco (2011) 192 Cal.App.4th 1263, 1250.)
City of Huntington Beach
May 6, 2022
(C) The Planning Commission's Reasons for Denying Entitlement Plan Amendment No. 22-003 Are Improper.
The Planning Commission's reasons for denial note that failure to underground Beach Boulevard utilities would be detrimental to the "general welfare" of persons working or residing in the vicinity. Such a finding reveals that the measure addresses generalized matters of public concern, more than particularized impacts of a single 7- Eleven store. (See, April 27, 2022 Notice of Action, p. 3.) The Planning Commission also deemed that the removal of Condition No. 6(b) would run aground of City General Plan Circulation Element Policy CIRC- 7(F).
However, that policy should not (and does not) apply to Appellant's Project. Initially, CIRC-7(F) does not require undergrounding of utilities or similar project. While the policy suggests a continued relocation of utilities underground or screening them, it does not require the City to condition approval of a development on performing this task. Furthermore, CIRC-7(F) applies to "scenic corridors." The Planning Commission has made no findings or determinations that the utilities to be undergrounded would be seen from a "scenic corridor." (See City General Plan, Circulation Element, p. 3-25.) The fact that the City conditioned other projects on the undergrounding of utilities does not bear on this issue. The majority of projects on or adjacent Beach Boulevard appear to have addressed undergrounding through payment of an in lieu fee.
Apparently, the City has now closed its doors to that option. Even if other projects were made to underground utilities, such a fact does not mean that Condition No 6(b) -- as applied to Appellant's development -- is not overly burdensome and/or roughly proportional to the impacts of Appellant's proposed development of the Property.
Applicable Title 20-25 provisions in the City's Zoning Code can still be met without placing improper exactions on Appellant project.
CONCLUSION.
Based on the foregoing reasons, among others, Appellant respectfully requests that the City Council revoke, rescind, or deem complete the performance of Condition No. 6(b) in Conditional Use Permit 19-014. As noted, Appellant reserves the right to amend or supplement this appeal letter to up and at the City Council's hearing on this matter.
Should you have any questions, I will be available for discussion at the hearing or at the e-mail address above.
Very truly yours,
Greg Tross