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November 1, 2023
Mayor Strickland and Councilmembers
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Re: Response to Brian Thienes Appeal of Huntington Beach Planning Commission (“Planning Commission” or “Commission”) Approval of Conditional Use Permit (”CUP”) No. 21-024 for Hines / Clearwater Bolsa Chica Senior Living Community Dear Mayor Strickland and Councilmembers:
Our firm represents Hines / Clearwater with respect to the environmental clearance and land use approvals for the Bolsa Chica Senior Living Community proposed for the southwest corner of Warner and Bolsa Chica in Huntington Beach (the “Project”).
This letter responds to the appeal of CUP No. 21-024 filed on October 5, 2023 by Carmel & Naccasha LLP on behalf of Huntington Beach resident Brian Thienes (“Appellant”).
Appellant’s Objections to Planning Commission’s 6-1 Approval of the CUP Are Without Merit The Appellant’s letter of October 5 is described as an appeal of the City of Huntington Beach (“City”) Planning Commission’s September 26, 2023 6-1 approval of CUP No. 21-04. The letter also outlines some “additional comments and concerns” regarding the Draft EIR – none of which were raised by the Appellant during either the circulation and public review of the Draft EIR or before the Planning Commission.
Appellant’s counsel, Carmel & Naccasha LLP, states vaguely that “California law requires that findings in support of land use decisions of this nature be supported by substantial evidence,” but fails to identify the City’s very specific Zoning Code-required findings for approval of all conditional use permits.
City Zoning Code section 241.10 Required Findings, states:
An application for a conditional use permit or variance may be approved or conditionally approved if, on the basis of the application, plans, materials, and testimony submitted the Planning Commission finds that:
ATTORNEYS AT LAW
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Robert D. Thornton
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Refer To File # 504144-0001 VIA ELECTRONIC MAIL AND HAND DELIVERY
Mayor Strickland and Council Members
City of Huntington Beach
November 1, 2023
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A. For all Conditional Use Permits:
1. The establishment, maintenance and operation of the use will not be detrimental to the general welfare of persons working or residing in the vicinity nor detrimental to the value of the property and improvements in the neighborhood;
2. The granting of the conditional use permit will not adversely affect the General Plan;
3. The proposed use will comply with the provisions of the base district and other applicable provisions in Titles 20 through 25 and any specific condition required for the proposed use in the district in which it would be located.
The Thienes October 5 appeal letter in its brief, one-page critique of the Planning Commission approval of the CUP not only fails to reference these specific required findings in the aforementioned City Code section 241.10(A), but fails to acknowledge the detailed “Findings for Approval” set forth in Attachment No. 1.4-1.7, adopted by the Commission. The Findings are based on and apply the Commission’s and City Planning staff’s review of facts of the submitted Bolsa Chica Senior Living Community applications, plans, materials and applicant and community testimony presented prior to and at the September 26 hearing as required by City Code section 241.10(A) (Exhibit 1 – incorporated by reference). In addition, the Planning Commission held a Study Session focused on the Project on August 22, 2023.
The Thienes appeal letter ironically provides only two paragraphs of negative conclusory statements without acknowledging the very detailed substantial evidence not only set forth in Attachment No. 1.4-1.7 referenced above, but provided in the detailed project and land use entitlement applications, including the Specific Plan, the Draft EIR, and included or referenced technical studies provided in the EIR, and the testimony of Hines and Clearwater and senior community representatives contained in the record of the Commission’s September 26, 2023 public hearing. This testimony included unrefuted statistical information and data on the rising need to provide for additional senior housing in Huntington Beach, and throughout California.
The Land Use Element goals and policies cited by the Appellant are only a partial, selected list of the goals and policies of the Land Use Element. In contrast the Planning Commission adopted findings apply specific facts in support of those findings that demonstrate consistency not only with the few goals and policies listed by Appellant, but consistency with a broader range of goals and policies within the General Plan Land Use, Housing and Noise Element.
One of several Commission-adopted findings directly countering Appellant’s assertion that “the Project will not enhance the affordability of existing housing . . . or an opportunity to develop housing that meets diverse community needs” is the following (Attachment No. 1.7):
The proposed senior living community would add 202 units of senior living capacity in a facility that includes on-site amenities for residents including recreational areas, exercise areas, dining and entertainment options that reduce the need for residents to travel off-site. Additionally, multiple nearby commercial businesses are within walking distance of the project site, and for those services that aren’t van services would be provided to residents to Mayor Strickland and Council Members
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access additional adjacent commercial uses, including restaurants, medical offices, and pharmacies.
By providing a more comprehensive senior living project with independent living, assisted living and memory care, and an internal array of recreational amenities and open space, dining and entertainment options, the Bolsa Chica Senior Living Community is exactly the type of development that meets diverse community needs within the 3.10 acre mixed-use Specific Plan site, and at a location near services and transit that also will promote walkability, as intended in the City’s adopted Housing Element.
Moreover, as City Planning staff and/or City Attorney will confirm, a project need not be consistent with every General Plan policy. The law regarding general plan consistency is well-established:
a finding of consistency requires only that the proposed project be “compatible with the objectives, policies, general land uses, and programs specified in the applicable plan. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal. App.4th 656, 678.) The City need only demonstrate the Project here is in “harmony” with the policies of the General Plan. (Sequoia Hills Homeowner’s Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 719 [“Once a general plan is in place, it is the province of elected city officials to examine the specifics of a proposed project to determine whether it would be "in harmony" with the policies stated in the plan. (citing Greenebaum v. City of Los Angeles (1984) 153 Cal.App.3d 391, 406; Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (87 Cal.App.4th 99, 142 ["Because policies in a general plan reflect a range of competing interests, the governmental agency must be allowed to weigh and balance the plan's policies when applying them, and it has broad discretion to construe its policies in light of the plan's purposes. “];.) Old East Davis Neighborhood Association v. City of Davis (2021) 73 Cal. App. 5th 895 is instructive. There, as here, the project opponents claimed that a four-story mixed-use apartment building in a neighborhood of one and two-story residences was “out of scale” with the community and violated the city’s design guidelines. The Court rejected the argument concluding that “whether a new structure might or might not overwhelm this particular neighborhood requires the balancing of many factors” and could not be determined by the size of the building alone (Ibid. at p. 911.). On an objective basis, the Bolsa Chica Senior Living project is compatible in proportion, scale, and character to the Warner/Bolsa Chica commercial corridors and surrounding multifamily development. As stated in the Commission’s adopted consistency findings for Land Use Element goals and policies in Attachment 1.6 the Project is “consistent with the overall character of the surrounding area,” and “is similar in height and massing to other multistory senior living facilities in the City that are adjacent to residential uses.” (Commission-adopted Findings for Approval/Land Use Element Consistency – Attachment No. 1.6.) In objecting without any stated factual basis other than the assertion that an additional 15 feet of height over the current CG zone-allowed 50 feet will result in land use incompatibility, the Appeal ignores additional Commission-adopted Findings. Indeed, the 50-foot height limitation of the current CG zone are essentially irrelevant because the Project includes the adoption of a Specific Plan to replace the CG zoning designation. The comparison also ignores the community benefits of the Bolsa Chica Senior Living Specific Plan, the project amenities and the exponentially higher traffic associated with buildout of the CG zone.
The Project’s design reflects “a traditional style of architecture that is reflective of the City’s beach lifestyle that complements and enhances the architectural style of the larger surrounding area.” (Findings – Attachment No. 1.6.)
Mayor Strickland and Council Members
City of Huntington Beach
November 1, 2023
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The “variety of building materials, multilevel roof lines, and varying building setbacks . . . serve to break up the scale and massing of the building” (Findings – Attachment No. 1-6) provides a descriptive basis and substantial evidence that the Project’s height, with its upper-level setbacks, is compatible in proportion, scale, and character to the adjoining land uses. Contrary to the Appellant’s hyperbole, the Project can’t even be seen from the Brightwater community in which Mr. Thienes resides.
Finally, the City’s CEQA consultant, LSA, in its October 20 response to the October 5 appeal responding to the “comments and concerns regarding the EIR’s,” the proposed project is consistent with the City General Plan policies addressing aesthetic values and visual quality. Pages 6 through 8 of the LSA Responses to Appeal, Section 3. “Aesthetics-Height” points out that successful urban design generally concentrates taller buildings along commercial corridors, where multiple higher capacity arterials intersect. The four-story Beach and Ocean apartment complex on Beach Boulevard near Adams Street, the Merrill Gardens Senior Facility on Beach Boulevard near Warner Avenue, just north of a single family neighborhood, and the tall multistory buildings across from the Huntington Beach Pier near Pacific Coast Highway and Main Street, and the 14-story Huntington Gardens senior apartments on Huntington near 5 Points, all meet diverse needs, many are over 65 feet tall, and yet have existed for decades adjacent to or near old and new one-to-three story single family residences without community impacts. Like the Project, these all have responded to the “diverse community needs in terms of housing types, cost and location,” consistent with Housing Element Policy H2.1.
The Appellant’s assertion that the Project would “tower over existing residences” ignores the fact that other than the four older single-family residences on the east side of Bolsa Chica over 100 feet from these properties, the Project site is bounded by an industrial building to the south, and an older apartment complex with carports between the Project and the existing apartments.
Appellant’s CEQA Arguments Are Unsupported by Evidence and Ignore the Evidence in the Draft EIR.
The Appellant’s CEQA “claims” are nothing more than conclusory statements without any factual support. As documented by the LSA, the City’s CEQA consultant, Appellant conspicuously ignores the substantial evidence in the Draft EIR and the record before the Planning Commission documenting the substantial evidence that the findings of the Draft EIR are supported by substantial evidence. (LSA Memorandum (For these reasons alone, the Council should deny the appeal. An agency's factual determinations are given substantial deference and are presumed correct; the challenger bears the burden of proving the contrary. ( State Water Resources Control Bd. Cases (2006) 136 CA4th 674, 723; Sierra Club v County of Napa (2004) 121 CA4th 1490, 1497; San Franciscans Upholding the Downtown Plan v City & County of San Francisco (2002) 102 CA4th 656, 674.) We respond below to each of Appellant’s CEQA claims.
Findings of Less Than Significant Effect. Without citing any evidence, Appellant disagrees with the DEIR findings that the Project would not result in any significant effect. Appellant makes two assertions: (1) the Project General Plan Amendment and Zone Change will somehow result in cumulative effects from potential future development; and (2) the DEIR did not evaluate parking effects.
Cumulative Effects. The DEIR includes an evaluation of the Project’s cumulative effects expressly following the applicable provisions of the CEQA Guidelines. Nothing more is required. CEQA does not require the evaluation of potential future projects that are not proposed. There is no evidence that Mayor Strickland and Council Members
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the approval of a General Plan Amendment and a Specific Plan for the senior living Project here will somehow trigger other senior living projects or new Specific Plans. (City of Maywood v. Los Angeles Unified Sch. Dist. (2012) 208 Cal.App.4th 362 [A proposal that has not crystallized to the point that it would be reasonable and practical to evaluate it cumulative impact need not be treated as a probable future project.].) In the event a new project is proposed, CEQA will require the evaluation of the effects of that project. Moreover, the City Council is able to reject any additional proposals for new projects, and given the minimum two-acre plus threshold for Specific Plan applications and the fully developed multifamily apartment and condominium uses in the surrounding area, future Specific Plan applications are unlikely.
Parking. As noted in the LSA memorandum, parking adequacy is not a CEQA environmental effect. (San Franciscans Upholding the Downtown Plan v. City & County of San Francisco (2002) 102 Cal.App.4th 1013.) In any event, the DEIR documents that the on-site parking included in the Project provides adequate parking for Project residents, staff, and visitors. (DEIR Appendix A; LSA Memorandum, p. 2.)
Alternatives. Again, without citing any evidence, Appellant clams that a different project could have been proposed under existing CG zoning that would have fewer impacts. First, the DEIR evaluated the effects of the Project against the effects of continuing existing uses at the site. The CEQA measurement of whether a proposed project will have a significant effect is determined by comparing the proposed project against existing conditions. (CEQA Guidelines, § 15125, subd (a). The DEIR documents that the Project will have fewer effects than existing conditions. For example, the Project will generate less traffic than the existing development. Second, the DEIR considered an alternative that could be developed under the existing CG zoning. The DEIR documented that the allowable development under the existing CG zoning would result in much greater effects than the Project, including a substantial increase in daily traffic at and around the project site with potentially significant impact on the surrounding circulation system, and increased air quality impacts. (DEIR, § 5.1; LSA Memorandum, p. 4.) CEQA does not require an evaluation of any alternative that could conceivably be proposed.
Alternatives are limited to those that would achieve most of the project objectives, and that would reduce significant environmental effects.
The project objectives here are to:
1. Develop a project that helps meet the increasing demand for senior living facilities in Huntington Beach at a scale of development suitable to current industry standards.
2. Provide opportunity for residents to age in place through provision of multiple unit types accommodating independent living, assisted living, and memory care.
3. Provide a community with around-the-clock staff assistance, as well as a range of amenities that would aid in maintaining a high quality of life and support activities associated with daily living of residents.
4. Deliver benefits to the community by expanding the range of housing opportunities with a particular focus on addressing the needs of the elderly.
5. Implement a project that would be compatible with surrounding land uses and would enhance the character of the surrounding neighborhood through high quality design.
Mayor Strickland and Council Members
City of Huntington Beach
November 1, 2023
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Any hypothetical commercial facility that could be developed under the existing CG zoning would not accomplish any of the senior housing Project objectives. Further, the DEIR documents that all of the potential Project effects are less than significant using CEQA-approved standards of significance. CEQA does not require the City to evaluate some other hypothetical alternative where, as here, substantial evidence in the DEIR documents that the Project will have no unavoidable significant effects.
Appellant’s Other Unsupported Claims. Appellant’s other claims regarding potential lighting, recreation, utilities system effects are similarly devoid of any evidentiary support. As documented in the LSA Memorandum, Appellant simply ignores the substantial evidence in the DEIR which supports the conclusion that the Project will not have any significant effects on lighting, recreation or utility system.
In conclusion, and as set forth above, Appellant ignores the substantial evidence before the Planning Commission and City Council that the Project is consistent with the policies of the General Plan, and that the Project will not result in any significant environmental effects. The Council should deny the appeal.
Very truly yours,
Very truly yours,
Robert D. Thornton
Nossaman LLP
John P. Erskine
Nossaman LLP
RDT/JPE:dlf