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CITY OF REDONDO BEACH
APPLICATION FOR APPEAL
TO THE CITY COUNCIL
RE: "TEN21 HARBOR" No case number assigned
(case number and name)
Address/Location of Subject Property. 1021N. Harbor Dr. (if applicable)
Decision-making body that made the decision which is the subject of the appeal:
Planning Commission
Harbor Commission
Preservation Commission
Planning Director
Board of Appeals/Uniform Code
Date of decision: December 7, 2022 Appealing: • Approval • Denial Name of Appellant New Commune DTLA, LLC
(type or print)
Address of Appellant 9744 Wilshire Blvd, Beverly Hills, CA 90212 Telephone Number of Appellant 310-372-8433
Email Address of Appellant [email protected]
Signature _ - Fur Leonid PustilniKor
For office use only:
Appeal Fee Paid $_ Date - Received by
Notice to: City Council _ City Manager _ City Attorney _ -Planning Department Harbor Department
Other appeal Press hat ederty et pan
RETURN TO:
Office of the City Clerk
415 Diamond Street Chief Deputy
Redondo Beach, CA 90277
(310) 318-0656 city clerk
This appeal is made pursuant to the following Redondo Beach Municipal Code Section(s) (see page 3 for a partial listing of City's municipal code appeal provisions):
RBMC section 1.4-01
Ground(s) for Appeal:
Please specify the grounds for this appeal. Where an approval /denial involves multiple entitlements/actions, please specify which entitlements/actions are contested in this appeal (e.g. Conditional Use Permit) and the specific grounds for contesting each entitlement/action.
Appellant is responsible for reviewing and complying with the relevant appeal procedures contained in the City's municipal code or state law, which may contain additional substantive and/or procedural requirements depending upon the nature of the appeal. It may be necessary for appellant to supplement this form with additional pages/information to fulfill these requirements. Issues not raised here will not be considered by City Council.
Please see attached document "Grounds for Appeal".
The following list provides a brief overview of some of the City's Municipal Code Appeals (to City Council) by topic area. This is not intended to be an exhaustive list. Potential appellants are advised to review the Municipal Code Sections to determine applicability of these sections and for additional appeal procedures and appeal content requirements.
For example, California Environmental Quality Act (CEQA) Appeal Procedures are contained within Redondo Beach Municipal Code, Title 10, Chapter 3, Section 10-3.901. CEQA Appeals (1) must be filed within ten [10] days of the decision-making body's action and contain specific information described in 10-3.901, (2) require the appellant to notify the project applicant of the appeal within ten [10] days of the City's action by certified mail (and provide the City a copy of the mail receipt), (3) require appellants to file any additional documentation (such as presentations) with the City Clerk no later than seven [7] days before the public hearing, and (4) require appellant to mail a copy of any additional documentation (such as presentations) to the applicant no later than seven [7] days before the public hearing by certified mail (and provide the City a copy of the mail receipt at the public hearing).
Redondo Beach Municipal Code Section General Topic Area for Appeal RBMC § 3-14.04 Encroachment permits
RBMC § 3-7.1906 Temporary Street Closure
RBMC § 4-11.146 Oil Wells-Notices to Comply
RBMC § 4-15.07 Registration of Canvassers, Solicitors, itinerant Merchants, Salesmen, and Peddlers
RBMC § 4-17.12 musement and Entertainment Permit
RBMC § 4-18.11 emoval of Abandoned, Wrecked, Dismantled, or Inoperativ Vehicles from Private or Public Property
RBMC § 4-26.09
to the Council
RBMC § 5-2.206 Weeds, Rubbish, and Stagnant Water
RBMC § 8-2.10 Uniform Transient Occupancy Tax
RBMC $ 10-1.506 Subdivisions
RBMC §§ 10-1.906(a), 10-1.1011 Subdivisions
RBMC § 10-2.2500(g) Administrative Design Review
RBMC § 10-2.2502(g) Planning Commission Design Review
RBMC § 10-2.2504(f) Zoning Amendments
RBMC § 10-2.2505(f) General Plan and Specific Plan amendments RBMC § 10-2.2506 (g) Conditional Use Permits
RBMC § 10-2.2507(t) Administrative Use Permits
RBMC § 10-2.2508(1) Modifications
RBMC § 10-2.2510(g) Variances
RBMC § 10-2.2514(i) Planned Development Review
RBMC § 10-2.2520(f) Temporary Use Permits
RBMC § 10-3.901 California Environmental Quality Act
RBMC § 10-4.601 Certificate of Appropriateness by the Preservation Commission RBMC § 10-5.2500(g) Administrative Design Review [Coastal Zone] RBMC § 10-5.2502(g) Planning Commission Design Review [Coastal Zone] RBMC § 10-5.2504(f) Zoning Amendments [Coastal Zone]
RBMC § 10-5.2505(f) General Plan and Specific Plan amendments [Coastal Zone] RBMC § 10-5.2506(g) Conditional Use Permits [Coastal Zone] RBMC § 10-5.2507(f) Administrative Use Permits [Coastal Zone] RBMC § 10-5.2508(1) Modifications [Coastal Zone]
RBMC § 10-5.2510(g) Variances [Coastal Zonel
RBMC § 10-5.2514(i) Planned Development Review [Coastal Zone] RBMC § 10-5.2520(f) Temporary Use Permits [Coastal Zone] RBMC § 10-5.2222 Coastal Development Permit
RBMC § 11-2.10(d) Public Utilities
RBMC § 11-3.608(b) Cable TV-Liquidated damages
RBMC § 1-4.01 General Appeal Procedures* only applicable if there are no specific appeal procedures provided for the challenged action.
RBMC § 2-9.712 General Appeal Procedures [Harbor Commission]* only applicable if there are no specific appeal procedures provided for the challenged action
Grounds for Appeal
Appeal by New Commune DTLA, LLC
December 13, 2022
This presents New Commune DTLA's ("NCD") appeal of the December 7, 2022, decision of Brandy Forbes to refuse processing of the permit application for the New Commune DTLA LLC Ten21 affordable housing development project located at 1021 N Harbor Drive Project ("Decision"). While the Decision purports to qualify as a notice of incomplete application, it is nothing of the kind, as the only avenue for response is to withdraw the application and submit an entirely new application for a materially different project. Permit Streamlining Act (Gov. Code, § 65940, et sq.) ("PSA") requires certain elements for a notice to qualify as a "notice of incomplete application." Government Code section 65943 provides, in relevant part:
Not later than 30 calendar days after any public agency has received an application for a development project, the
agency shall determine in writing whether the application is complete and shall immediately transmit the determination to the applicant for the development project... If the
application is determined not to be complete, the agency's determination shall specify those parts of the application which are incomplete and shall indicate the manner in
which they can be made complete, including a list and
thorough description of the specific information needed to complete the application. The applicant shall submit
materials to the public agency in response to the list and description.
(Gov. Code, § 65943, subd. (a), emphasis added.) The Decision does not purport to identify any items that are incomplete in the application. It merely communicates a summary refusal to process unless an entirely different project is proposed.
Moreover, the City's contention that NCD is "not entitled to develop the proposed residential project site under Government Code 65589.5(d)(5)," is incorrect as a matter of law. The assertion rests on a contention that NCD could not avail itself of the Builders Remedy under the Housing Accountability Act (Gov. Code, § 65589.5) because it submitted the SB330 preliminary application after the City's July 5, 2022, adoption of the second round of revisions to the Sixth Cycle 2021-2029 Housing Element ("Revised Housing Element"). In fact, the Revised Housing Element was not certified as compliant with the Housing Element Law (Gov. Code, § 65580, et seq.) pursuant to Government Code section 65585, subd. (h), until September 1, 2022 - well after the submittal of the preliminary application. Until that time, the Revised Housing Element was identified as "out of compliance" by the California Department of Housing and Community Development ("HCD") Housing Element Compliance Report. The HCD's determination is the operative date of compliance under the Housing Element Law. Additionally, the City's summary refusal to process the application stands in direct 1 collision with Government Code section 65589.5, subd. (d), which prohibits any local government denial of a Builders Remedy affordable housing project unless, among other things, "it makes written findings, based upon a preponderance of the evidence in the record' that "the jurisdiction has adopted a revised housing element in accordance with Section 65588 that is in substantial compliance with this article... " (Gov. Code, § 65589.5, subd. (d)(5), emphasis added.) The Legislature's requirement to adopt "written findings" supported by a "preponderance of the evidence in the record" concerning the status of the local government's housing element makes two things clear: (1) it anticipates a processing of any Builders Remedy application to a point of being reviewed - and subject to adopted findings - by the appropriate decision- maker, in this case, the City Planning Commission and/or the City Council not by staff at the planning department counter, and (2) it requires a far higher standard of proving compliance with the Housing Element Law than merely invoking the HCD's determination under Government Code section 65585 subdivision (h), even if that determination were retroactive to July 5, 2022 (it is not). 2 NEWMEYER Newmeyer & Dillion LLP
895 Dove Street
DILLION • Fifth Floor
Newport Beach, CA 92660
949 854 7000
December 9, 2022 Michael W. Shonafelt
Michael. [email protected]
VIA EMAIL AND U.S. MAIL
Brandy Forbes
Community Development Director
City of Redondo Beach
415 Diamond Street
Redondo Beach, CA 90277
[email protected]
Re: New Commune DTLA LLC Ten21 - 1021 N. Harbor Drive
Dear Ms. Forbes,
This office continues to represent New Commune DTLA, LLC ("NCD") with respect to the above-referenced, mixed-use, affordable housing development proposed at 1021 N. Harbor Drive ("Project") in the City of Redondo Beach ('City"). This letter responds to your December 7, 2022, letter regarding the Project and follows NCD's July 20, 2022, preliminary application for the Project, in accordance with what is colloquially referred to as the "Builders Remedy," (Gov, Code § 65589.5, subd. (d)) ("Preliminary Application") and the formal application for the Project submitted on November 10, 2022 ("Formal Application").
As a preliminary note, the Permit Streamlining Act (Gov. Code, § 65940, et sq.) ("PSA") requires certain elements for a notice to qualify as a "notice of incomplete application." Government Code section 65943 provides, in relevant part:
Not later than 30 calendar days after any public agency has received an application for a development project, the
agency shall determine in writing whether the application is complete and shall immediately transmit the determination to the applicant for the development project.... If the
application is determined not to be complete, the agency's determination shall specify those parts of the application which are incomplete and shall indicate the manner in
which they can be made complete, including a list and
thorough description of the specific information needed to complete the application. The applicant shall submit
5299.001 / 10060757.2
newmeyerdillion.com
Brandy Forbes
December 9, 2022
materials to the public agency in response to the list and description.
(Gov. Code, § 65943, subd. (a), emphasis added.) Your letter does not purport to identify any items that are incomplete in the Formal Application and provides no path to cure any purported deticiency. It merely communicates a summary refusal to process and a direction to file another application for a substantially different project. Because your letter does not qualify as a notice of incomplete application under section 65943, the Formal Application therefore is deemed to be complete, as a matter of law, as of the date of this letter. (Ibid.) NCD reserves its rights under the PSA.
Moreover, the City's contention that NCD is "not entitled to develop the proposed residential project site under Government Code 65589.5(d)(5)," is incorrect as a matter of law. Your assertion rests on a contention that NCD could not avail itself of the Builders Remedy under the Housing Accountability Act (Gov. Code, § 65589.5) because it submitted the Preliminary Application after the City's July 5, 2022, adoption of the second round of revisions to the Sixth Cycle 2021-2029 Housing Element ("Revised Housing Element"). In fact, the Revised Housing Element was not certified as compliant with the Housing Element Law (Gov. Code, § 65580, et seq.) pursuant to Government Code section 65585, subd. (h), until September 1, 2022 - well after the submittal of the Preliminary Application. Until that time, the Revised Housing Element was identified as "out of compliance" by the California Department of Housing and Community Development ("HCD") Housing Element Compliance Report. The HCD's determination is the operative date of compliance under the Housing Element Law. Any conclusion to the contrary would upset the carefully crafted statutory process for obtaining approval of housing elements set forth at Government Code sections 65580, et seq. It also would upend efforts by the building community to invoke the rights afforded by the Builders Remedy to build affordable housing projects, as it would render unreliable the HCD's public notice of the compliance status of housing elements throughout the State.
Most importantly, the City's summary refusal to process the Formal Application stands in direct collision with Government Code section 65589.5, subd. (d), which prohibits any local government denial of a Builders Remedy affordable housing project unless, among other things, "it makes written findings, based upon a preponderance of the evidence in the record' that "the jurisdiction has adopted a revised housing element in accordance with Section 65588 that is in substantial compliance with this article .... " (Gov. Code, § 65589.5, subd. (d)(5), emphasis added.) The Legislature's requirement to adopt "written findings" supported by a "preponderance of the evidence in the record" concerning the status of the local government's housing element makes two things abundantly clear: (1) it anticipates a processing of any Builders Remedy application to a point of being reviewed -- and subject to adopted findings -- by the appropriate decision-maker, in this case, the City Planning Commission and/or the City Council not by staff at the planning department counter, and (2) it requires a far higher standard of proving compliance with the Housing Element Law than merely 5299.001 / 10060757.2
Brandy Forbes
December 9, 2022
invoking the HCD's determination under Government Code section 65585 subdivision (h), even if that determination were retroactive to July 5, 2022 (it is not). Indeed, an HCD determination under section 65585 is entitled only to a rebuttable presumption (Gov. Code, § 65589.3.) It cannot, by itself, meet the lofty standard of proof under the Builders Remedy.
City staff are bound by the Housing Accountability Act -- and by theories established by case law -- to process applications for housing development projects like this. (See, e.g., Building Industry Legal Defense Foundation v. City of San Juan Capistrano (1999) 72 Cal.App.4th 1410 [mandatory duty to process submitted applications].) NCD therefore demands that the City seriously consider the principles set forth in this letter and accept and process the Formal Application so that it is properly disposed for presentation to the decision-maker capable of making findings based on a written record. Because time is of the essence, NCD requires an affirmative representation, in writing to the undersigned, that the City will accept and process the Formal Application by no later than close-of-business Tuesday, December 13, 2022.
If we do not receive such an affirmative response by that date, NCD will be compelled to invoke further administrative and legal remedies including, but not limited to, an administrative appeal of Staff's actions pursuant to Chapter 4 of the City of Redondo Beach Municipal Code and/or filing a petition for writ of mandamus pursuant to Code of Civil Procedure section 1085.
If you have any questions about this letter, please do not hesitate to call me.
Very truly yours,
slur
Michael W. Shonafelt
MWS:mws
CC:
Leo Pustilnikov (email)
Brandon Straus (email)
5299.001 / 10060757.2
More To Sea
redondo
Community Development Department tel: 310 318-0637
Planning Division fax: 310 372-8021
www.redondo.org
December 7, 2022
Brandon Straus, Srour & Associates
2447 PCH, Suite 200
Hermosa Beach, CA 90254
[email protected]
Distributed via United States Postal Service and Email
RE: 1021 N. Harbor Drive (APNs 7503-013-016 and 7503-013-017) Dear Mr. Straus:
Earlier this year, the City received a "preliminary application" for a housing development that your client New Commune DTLA, LLC proposed for the former Sea Lab educational facility site, located at 1021 N. Harbor Drive in the City of Redondo Beach. On November 10, 2022, the City received a formal application for a housing development on the same site, covering Assessor Parcel Numbers 7503-013-016 and 7503-013-017.
The project site is located in the "Coastal Commercial" land use designation of the City's General Plan and is zoned under the "CC-4" zoning district. As your client's preliminary application and project application forms acknowledge, residential uses are not allowed in the CC-4 zone, nor are they allowed in the Coastal Commercial land use designation of the City's General Plan.
Please note that your client is not entitled to develop the proposed residential project at the project site under Government Code Section 65589.5(d)(5). The City adopted an updated Housing Element on July 5, 2022, in accordance with state law. We note further that the City adopted its housing element prior to the July 21, 2022 submittal of your client's preliminary application. Importantly, the City's Housing Element substantially complies with state law. In a letter dated September 1, 2022, the California Department of Housing and Community Development affirmed that the City's Housing Element is in full compliance with state law.
Since your client's application is inconsistent with both the general plan land use designation and the zoning applicable to the project site, this application is deemed incomplete. An application for an allowed land use per Redondo Beach Municipal Code Coastal Land Use Plan Implementing Ordinance would be needed to complete the application. Attached to this letter is the table of all of the uses that are allowed in the CC-4 zone, both permitted and conditional. The City would be glad to process an application for one of the allowed CC-4 uses. In addition, should your client wish to develop residential uses on this site, your client may submit an application for a General City of Redondo Beach Department of Community Development December 7, 2022 1021 N. Harbor Drive (APNs 7503-013-016 and 7503-013-017) Page 2 Plan Amendment (Redondo Beach Municipal Code (RBMC) 10-2.2505), Local Coastal Land Use Plan Amendment (RBMC 10-5.2505), and Zoning Amendment (RBMC 10-
5.2504).
If you have any questions regarding this letter, or the project types that may be developed in the Coastal Commercial designation and CC-4 zone, please feel free to contact our office.
Sincerely,
Brandy Forbes
Community Development Director
Attachments): Land use regulations: CC coastal commercial zones CC: Leonid Pustilnikov, New Commune DTLA LLC
Michael W. Shonafelt, Newmeyer & Dillon LLP
ATTACHMENT
Redondo Beach Municipal Code
10-5.810 Land use regulations: CC coastal commercial zones.
In the following schedule the letter "P" designates use classifications permitted in the specified zone and the letter "C" designates use classifications permitted subject to approval of a Conditional Use Permit, as provided in Section 10-5.2506. Where there is neither a "P" nor a "C" indicated under a specified zone, or where a use classification is not listed, that classification is not permitted. The "Additional Regulations" column references regulations located elsewhere in the Municipal Code.
CC-1 CC-2 CC-3 CC-4 CC-5 Additional
Regulations See
Use Classifications Section:
Commercial Uses
Banks (no drive-up service) 10-5.811
Bars and nightclubs 10-5.811, 10-
5.1600
Body art studios C C C 10-5.811, 10-
5.1630
Commercial recreation C C C 10-5.811, 10-
5.1600
Food and beverage sales 10-5.811
0U
Hotels (including limited use overnight visitor 10-5.811 accommodations)
Marinas C C
- 10-5.811
rina-related facilities: 10-5.811
Boating facilities
Marine sales and services
Yacht and boating clubs U.UU 00UU
Massage businesses C 10-5.1628, 6-
2.03, 6-2.08
Offices C 10-5.811
Personal convenience services C 10-5.811
Personal improvement services 10-5.811
Restaurants 10-5.811
Recreational equipment rentals 10-5.811
OOO A U 10-5.811
any tenant space not exceeding 5,000 sq. ft.
Q O
any tenant space exceeding 5,000 sq. ft.
Snack shops P P P P 10-5.811
Other Uses
Adult day care centers 10-5.811
Antennae for public communications C 10-5.811
Child day care centers 10-5.811
Cultural institutions 0000 AU 10-5.811
Government offices 10-5.811
Parks, recreation and open space 10-5.811
Parking lots - 10-5.811
CC-1 CC-2 CC-3| CC-4 CC-5 Additional
Regulations See
Use Classifications Section:
Public safety facilities C C C C 10-5.811
Public utility facilities C C C 10-5.1614
Recreation facilities C C C C 10-5.811
Schools, public or private - C C C C 10-5.811