L.1- Blue Folder.pdf — Redondo Beach City Council, May 9, 2023

BLUE FOLDER ITEM
Blue folder items are additional back up material to administrative reports and/or public comments received after the printing and distribution of the agenda packet for receive and file.

CITY COUNCIL MEETING
March 9, 2023
• Comment via email from George Ikeda
• Email from Newmeyer Dillion to City Council
• Email-9300 Wilshire, LLC
• Email from Malou Reyes
• Packet from Mitchell M. Tsai
• Comment letter from Patterson & O'Neill, PC
• Letter of Technical Assistance from Housing & Community Development
L.1. PUBLIC HEARING FOR CONSIDERATION OF AN APPEAL OF THE COMMUNITY DEVELOPMENT DIRECTOR’S NOTICE OF INCOMPLETE
APPLICATION DATED MARCH 3, 2023 FOR A PROPOSED MIXED USE DEVELOPMENT AT 1100 N. HARBOR DRIVE, REDONDO BEACH, CA 90277 AS APPEALED ON MARCH 9, 2023 PURSUANT TO REDONDO BEACH
MUNICIPAL CODE SECTION 1-4.01 GENERAL APPEAL PROCEDURES CONTACT: BRANDY FORBES, COMMUNITY DEVELOPMENT DIRECTOR
From: Planning Redondo
To: Brandy Forbes
Cc: Sean Scully; Antonio Gardea
Subject: FW: Public Hearing 9 May 2023
Date: Monday, May 8, 2023 8:02:00 AM
-----Original Message-----
From: George Ikeda <[email protected]>
Sent: Friday, May 5, 2023 1:42 PM
To: Planning Redondo <[email protected]>
Subject: Public Hearing 9 May 2023
You don't often get email from [email protected]. Learn why this is important <https://aka.ms/LearnAboutSenderIdentification>
CAUTION: Email is from an external source; Stop, Look, and Think before opening attachments or links. 504 Esplanade #408
Redondo Beach, CA 90277
May 5, 2023
Planning Department
City of Redondo Beach
415 Diamond Street ([email protected] <mailto:[email protected]> ) Redondo Beach, CA 90277
`Subject: Public Hearing on Development at 1100 N. Harbor Drive Dear Community Development Director
The public hearing may be addressing the incomplete application of the 1100 N. Harbor Drive project but I would like to address the fundamental requirement the project must satisfy. The requirement is restoration of coastal wetlands, which Redondo Beach regulations do not address. The AES site developer must satisfy this unique constraint.

I believe that the city is not focusing on the unique constraint placed on developing the AES site.

The California
Coastal Act established the restoration of wetlands along the California coasts. This constraint is unique in that it is not just an open space, a park, nor just a body of water.

This unique constraint surfaced at the California Energy Commission (CEC) public hearing on Redondo Beach Energy Project. Yes, I know many of you have not attended the hearing but it was held at the Holiday Inn (now the Double Tree) on Hawthorne Blvd. At the hearing, the California Coastal Commission (CCC) mandated to restore and perpetually maintain the wetland (Redondo Salt Lake and water pools - shown below) on the AES property. In addition, a 100 feet buffer zone needs to surround the wetland. Please, consult City Attorney Webb who was present at the CEC hearing.

The size of the wetland and location on the AES site would determine the remaining area that could be used for development. Therefore, what is the size of the salt lake? The area was surveyed by George Hansen in 1854 (Old Salt Lake of Redondo by Galen Hunter, Redondo Beach main library). It shows the salt lake with two pools of water south of the lake (see above). The 1854 newspapers clippings (pgs. 56 & 57, Old Salt Lake of Redondo) cite the size of the lake to be 130 by 500 yards and 200 by 600 yards. The sizes of the water pools were not mentioned. Using the newspapers' dimensions without the buffer zone, the lake was estimated to be 10.5 to 19.5 acres using an elliptical area. With the two water pools and buffer zone around the wetland, the restored wetland could be around 25 acres. A more accurate area of the Salt Lake could be obtained by use of a planimeter on George Hansen's land survey map. Anyway, the wetland area is greater than what was stated (5.93 acres) by CCC at the CEC hearing.

Therefore, it appears that only the western half of AES property could be developed. It is also possible that the area development could be further reduced. It is a function where the Redondo Salt Lake was situated. So, where would you start? I would think that one would start with George Hansen's survey.

Sincerely Yours,
George Ikeda
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Newmeyer & Dillion LLP
895 Dove Street
Fifth Floor
Newport Beach, CA 92660
949 854 7000
Michael W. Shonafelt
[email protected]
Las Vegas | Newport Beach | Walnut Creek
newmeyerdillion.com
May 9, 2023
VIA EMAIL AND U.S. MAIL
Bill Brand, Mayor
Members of the City Council
c/o Mike Witzansky, City Manager
and Eleanor Manzano, City Clerk
City of Redondo Beach
415 Diamond Street
Redondo Beach, CA 90277
[email protected]
[email protected]
Re: 9300 Wilshire LLC, et al. – 1100 N. Harbor Dr. Appeal Hearing Dear Mayor Brand and Members of the City Council,
This office continues to represent 9300 Wilshire LLC and its affiliate entities, (collectively, "Owner") with respect to the above-referenced, mixed-use, affordable housing development proposed at 1100 N. Harbor Drive (“Project”) in the City of Redondo Beach (“City”). This letter supports Owner's appeal submitted on March 8, 2023, to be heard on May 9, 2022, before the City of Redondo Beach City Council (“Appeal”). The Appeal arises out of the March 3, 2023, determination by Brandy Forbes, Director of Community Development, to refuse to process the Project application submitted by the Owners on February 6, 2023 (“Rejection Notice”).1 The Project is proposed on the approximately 50-acre AES Power Plant Site (“Property”), which is scheduled to cease electrical generating operations on December 31 of this year. The Project proposes an affordable housing development on the Property with mixed-uses to reclaim a long underutilized site. The upshot of the Rejection Notice is a refusal by the City to recognize the Owner’s right to invoke Government Code section 65589.5 subdivision (d) of the Housing Accountability Act 1 This Appeal is related to the February 7, 2023, City Council hearing regarding Public Hearing for Consideration of an Appeal of the Community Development Director’s Notice of Incomplete Application dated December 7, 2022 for 1021 N. Harbor Drive, Redondo Beach, California 90277 as Appealed on December 13, 2022, pursuant to Redondo Beach Municipal Code Section 1-4.01 General Appeal Procedures (“SEA Lab Appeal”). We request that the administrative record for the SEA Lab Appeal be incorporated by this reference.

Bill Brand, Mayor
Members of the City Council
May 9, 2023

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("HAA"). Because the Project qualifies as an affordable housing development under the HAA, it is the beneficiary of what is colloquially referred to as the HAA’s "Builder's Remedy" provision, which creates a presumption that the Project will be approved unless the City can make certain specific written findings based upon a preponderance of evidence in the record. (Gov. Code, § 65589.5, subd. (d)(1)-(5).) The City has not made those findings. Nor can it. The lynchpin finding that the City relies upon to reject the Project is that the City’s General Plan Housing Element (“Housing Element”) was consistent with state law at the time of the submittal of the Project’s Preliminary Application (defined below); this position is incorrect as a matter of law and conflicts with the Department of Housing and Community Development (HCD)'s interpretation and position on that issue.

The Rejection Notice attempts to characterize itself as a notice of incomplete application, but it is the equivalent of an outright denial of the Project because it forces the Owner to abandon its proposal, pull the application and return with an entirely different set of entitlement requests, such as a zone change and Local Coastal Program (“LCP”) amendment. Requiring the Owner to seek legislative actions to amend the zoning code and LCP is in derogation of the Owner’s rights under the Builders Remedy and renders the Project infeasible. The City's misinterpretation of the HAA unlawfully forces the Owner to abandon its statutorily granted right or “remedy” to be able to proceed without the need for any such legislative actions.

1. THE REJECTION NOTICE IMPROPERLY REPUDIATES THE HAA AND THE BUILDER'S REMEDY.

A. The Rejection Notice Is a Refusal to Process, Not a Notice of Incomplete Application.

The Rejection Notice has a single, dispositive purpose: to declare that the Project is not entitled to consideration under the Builder's Remedy. That is the determinative issue of this Appeal, not the multitudinous nit-picks concerning the application’s purported lack of information required to make it complete.2 In fact, no amount of information could ever render the Project application complete because the City’s ultimate goal is to force the Owner to abandon the Project as a Builder Remedy development and come back with an entirely different entitlement request to "construct" a park or open space. The City’s bald refusal to process this Project as a Builders Remedy development proposal renders meaningless all of the Rejection Notice’s attempts to masquerade as a notice incomplete application. 2 Among these is a baseless suggestion that Owner may not own the Project site. Owner is on title for the Project site and each constituent parcel is owned by the same constituent entities. The attached Owner's Affidavit was submitted with the Project application and establishes ownership of the property to pursue with this appeal. (See Owner's Affidavit executed by Leonid Pustilnikov, executed and notarized on February 6, 2023). Moreover, it is not within the purview of the City to hold Owner to more stringent ownership proof requirements than any other applicant for a development proposal in the City.

Bill Brand, Mayor
Members of the City Council
May 9, 2023

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The basis for the contention is the City’s allegation its housing element was compliant at the time the Owner submitted the preliminary application on July 21, 2023, pursuant to Government Code section 65941.1 subdivision (a) (“Preliminary Application”). Nevertheless, it is a matter of record that the Housing Element was not in compliance on July 21, 2022, when the Preliminary Application was submitted, even if the California Department of Housing and Community Development (“HCD”) later determined that the Housing Element was compliant.3 Submittal of the Preliminary Application entitled the Project to proceed “subject only to the ordinances, policies, and standards adopted and in effect” at the time of the submittal date. (Gov. Code, § 65589.5 subdivision (o).) This misconstrues the regulatory process relating to housing element compliance determinations governed by statute and the California Department of Housing and Community Development ("HCD")'s own interpretations of when “compliance” arises. HCD has issued a letter of technical assistance specifically for this Appeal that clarifies that compliance arises as of the date of HCD's determination of compliance pursuant to Government Code section 65585 subdivision (h), and not when a draft amendment was adopted by the City. The HCD unequivocally states that the City's housing element was found to be in compliance as of September 1, 2022, not earlier. (See, e.g., Technical Letter of Assistance of Shannan West to City of Redondo Beach re City of Redondo Beach 1100 N. Harbor Drive (HCD, May 8, 2023); Memorandum to Planning Directors and Interested Parties re Summary and Clarification of Requirements for Housing Element Compliance (HCD, March 16, 2023); Technical Letter of Assistance of Melinda Coy to Dave Rand re 3030 Nebraska Ave. Santa Monica (HCD, Oct. 5, 2022).)
The issue of whether or when the City’s Housing Element was deemed compliant is important to this case because the Builder’s Remedy can only apply if a local jurisdiction’s housing element is in a state of non-compliance with the Housing Element Law. Specifically, when a potential development qualifies as an affordable housing project under the HAA, the only circumstances under which a city or local municipality can deny such project is if they make written findings to a preponderance of the evidence standard to satisfy one of the following: (1) the City has a compliant housing element and met its regional housing need allocation; (2) the proposed development has a specific adverse impact on public health, safety and welfare; (3) denial of the project is necessary to comply with state or federal law; (4) the proposed site is designated agriculture or resource preservation; or (5) the proposed project is inconsistent with zoning and land-use designation and the city has a compliant housing element. (Gov. Code, § 65589.5, subd. (d)(1)-(5).) This section of the HAA is coined the Builder's Remedy because it gives a “remedy.” The “remedy” is being able to secure approval of a qualifying affordable housing development even if such a project is not consistent with the underlying zoning and land-use designation, without having to process a zoning code and general plan (and LCP) amendment. Requiring a Builders 3 HCD issued its compliance determination pursuant to Government Code section 65585, subdivision (h) on September 1, 2022. (https://www.redondo.org/civicax/filebank/blobdload.aspx?BlobID=41170.) Bill Brand, Mayor
Members of the City Council
May 9, 2023

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Remedy applicant to renounce such a remedy and come back with a zoning code and LCP amendment application is nothing less than an outright repudiation of the statute and violation of state law. (See, e.g. Letter of Technical Assistance of Shannan West to City of Redondo Beach (HCD May 8, 2023) ["HCD would also like to remind the City that HCD has enforcement authority over the HAA, among other state housing laws.

Accordingly, the HCD may notify the California Office of the Attorney General that a local government is in violation of state law."].)
B. The City's Housing Element was Non-Compliant at the Time of PreApplication Submittal The Project is proposed at the AES Power Plant site, which is zoned "PublicGenerating Plant" and its designated land-use under the LCP is "Generating Plant." (See, City of Redondo Beach City Resolution CC-1008-356, section 4, pp 4-6.)4 Residential development is not expressly permitted under this zone, but one reference in the City’s General Plan suggests reclamation and in-fill development is, at the least, contemplated at the AES Power Plant site. Specifically, Policy 1.46.2, subsection c., of the City's General Plan,
Allow(s) for the reuse of public and utility properties and facilities for private use . . . with the type and
density/intensity of use to be permitted on the site
determined by: c. contribution of public benefits (e.g., affordable housing).
(Redondo Beach General Plan, Land Use Element (2008), 1.46.1, p. 2-89, emphasis added.) This is an important point; notwithstanding the severely (if not unlawfully) restrictive character of the current zoning, the Project ostensibly satisfies the City's envisioned use by proposing affordable housing on lands that the City has designated for re-use and reclamation by private industry.

Regardless of the Project's alleged inconsistency with both the zoning and landuse designation, the Rejection Notice is based on the City's erroneous assertion that the HCD's approval of the City's draft housing element on September 1, 2022, relates back to the City's adoption of its draft housing element on July 5, 2023. The regulatory agency responsible for approval and administration of housing elements, the HCD, asserts otherwise; "(for) the City of Redondo Beach, the housing element was found by HCD to be in substantial compliance on September 1, 2022." (Technical Letter of 4 Measure G amended subsection C of Section VI of the LUP to adopt this “Generating Plant” designation. This designation is confusing, given other provisions of the City’s code that suggest the zoning falls into the “Industrial” zoning district. Moreover, while changes were made to zoning, the landuse was never changed for the site. The confusing status of the zoning and its facially restrictive function render the Project site virtually undevelopable. This issue is at the center of a pending action filed by Owner against the City claiming, among other things, that the confusing and restrictive zoning status give rise to a regulatory taking. See, e.g., City of Redondo Beach and City of Hermosa Beach vs. California State Water Resources Board, LASC Case No. 20STCP03193; Owner is a real party in interest in this lawsuit.

Bill Brand, Mayor
Members of the City Council
May 9, 2023

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Assistance of Shannan West to City of Redondo Beach (HCD, May 8, 2023)). The City therefore cannot base its rejection of the Project under section 65589.5 subdivision (d)(5) of the Builder's Remedy because it did not have a compliant housing element at the time of the Project's preliminary application submittal.

For reference, subsection (d)(5) of the Builder's Remedy prevents the City from rejecting or rendering infeasible an affordable housing project on the basis of inconsistencies with zoning and/or land-use designation if the City does not have a compliant housing element in accordance with Government Code section 65588.

That code section governs local agencies' ongoing requirements to review, revise, and adopt housing elements, and the time intervals on which local agencies must do so.

The code section which describes the submittal and review process for housing elements is Government Code section 65585. Subsection (b)(1) of section 65585 states in part that "(a)t least . . . 60 days prior to the adoption of a subsequent amendment to this element, the planning agency shall submit . . . a draft element amendment to the department." (Emphasis added.) Upon submittal of a draft amendment, the HCD has 60 days to review the draft and report and analyze the findings, as well as consult with any other outside agencies as necessary. (Gov. Code, § 65585, subds. (b)(3) and (c)). Upon completion of this review process, "the department shall determine whether the . . . draft amendment substantially complies with this article." (Id., § 65585, subd. (d)). "Prior to the adoption of its draft element or draft amendment, the legislative body shall consider the findings made by the department. If the department's findings are not available within the time limits set by this section, the legislative body may act without them." (Id., § 65585, subd. (e)).

The statute lays a clear roadmap for the housing element process. Cities and local jurisdictions submit draft elements to the HCD for consideration, the HCD reviews the proposed elements, the HCD makes its determination of compliance, and the local jurisdiction either adopts the compliant housing element, or otherwise makes further revisions based upon consideration of HCD's findings.

The City's position that it had a compliant housing element as of July 5, 2023, does not appreciate, if not ignores, Government Code section 65585. The Housing element was adopted on July 5, 2022, submitted to the HCD on July 7, 2022. The HCD issued its certification on September 1, 2022; this is less than 60-days required for a response. The City could not have adopted a compliant housing element on July 5, 2023, because it had not yet received HCD's written findings of compliance. Drafts are submitted to HCD, and subsequently HCD makes its determination whether it is compliant. The City's Housing Element therefore could not have been compliant until, at the earliest, September 1, 2022. This is the stated position of HCD, "(for) the City of Redondo Beach, the housing element was found by HCD to be in substantial compliane on September 1, 2022." (Technical Letter of Assistance of Shannan West to City of Redondo Beach (HCD, May 8, 2023)). Nevertheless, considering statutory law and the sequence of events, it can be reasonably argued the City still has not adopted a Bill Brand, Mayor
Members of the City Council
May 9, 2023

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compliant housing element.5 Statute requires the City to consider HCD's written findings of compliance prior to adoption of its compliant housing element. HCD responded to the draft within the statutory time limit and therefore the City was -- and arguably still is -- required to consider the findings in adopting its compliant housing element. In fact, the City still has never formally considered the HCD's written findings of compliance from September 1, 2022, and taken official action to adopt those findings in the process of adopting its compliant housing element.

If the City is unconvinced by statutory interpretation, then it can rely upon HCD's own words and interpretation. Referenced above and attached to this correspondence, the HCD issued a Technical Letter of Assistance specifically for the Project Appeal.

HCD states in its letter, unequivocally, that the date of compliance for the City's housing element is September 1, 2022. Accordingly, HCD states that subdivision (d)(5) of the Builders' Remedy cannot be used to disapprove the Project if the housing element was not substantially compliant as of the City's deadline.

It is not only within the City that this issue has arisen, but also in other jurisdictions across California, and specifically within the Los Angeles area, that caused HCD to issue guidance on the question in the form of a memorandum on March 16, 2023, entitled "Summary and Clarification of Requirements for Housing Element Compliance." (Memorandum to Planning Directors and Interested Parties re Summary and Clarification of Requirements for Housing Element Compliance (HCD, March 16, 2023).) HCD's memo directly undercuts the City's argument.

First, HCD's memo states that:

In other words, where a jurisdiction submits an “adopted” housing element before submitting an initial draft or before considering HCD's findings on an initial draft, HCD will consider the “adopted” to be an initial draft of both HCD's review and the jurisdiction's statutory compliance.

Second, HCD's memo states that:

In other words, a jurisdiction does not have the authority to determine that its adopted element is in substantial
compliance but may provide reasoning why HCD should
make a finding of substantial compliance. In addition, a jurisdiction is 'in compliance' as of the date of HCD's letter finding the adopted element in substantial compliance.

Any other letters are not a finding of substantial compliance. 5 The compliance status of the City’s Housing Element is the subject of a pending action brought by New Commune DTLA LLC against the City, New Commune DTLA LLC & Leonid Pustilnikov v. City of Redondo Beach (LASC Case No. 22TRCP00203). The Plaintiff in the lawsuit, New Commune DTLA LLC, is the applicant for the proposed affordable housing development at the SEA Lab site. The arguments presented by New Commune DTLA LLC and Leonid Pustilnikov in that proceeding are hereby reserved by Owner. We further request incorporation of the administrative record of that proceeding.

Bill Brand, Mayor
Members of the City Council
May 9, 2023

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HCD recommends that a jurisdiction adopt only after
receiving a letter from HCD findings the draft meet statutory requirements.
(Emphasis added.)
Both statute and the HCD in its role as the regulatory agency responsible for housing elements state that compliance is determined as of the date of HCD's written findings. The City's position that the date of compliance relates back to its adoption of the housing element amendment is incorrect. As noted above, the HCD's correspondence specifically addressed to the City is attached to this correspondence, as well as the HCD's memo and two other technical letters of assistance issued on projects in Santa Monica and La Canada Flintridge dealing with the same issue. Both letters echo the HCD's memo; the date of compliance is tied to the date HCD provides its written findings, and not when the City adopted the draft amendment that subsequently was deemed compliant.

It is factually and legally impossible for the City to prove, sufficient to satisfy a preponderance of the evidence standard, that the Project is not entitled to the Builder's Remedy because it adopted a draft amendment on July 5, 2023, that was not deemed compliant until September 1, 2023.

C. The City Has Not Taken Required Action to Effectuate its Housing Element.

Even if the HCD determined the housing element to be on September 1, 2022, it is manifest on the record that further action is necessary for such compliance to take effect. Until that happens, the legal status of the Housing Element remains murky. The HCD’s September 1, 2022, letter demonstrates that the HCD anticipated voter ratification of zone changes necessary to secure compliance at the March 2023 election:

HCD acknowledges that although the City Council
adopted a Preferred Land Use Plan in May 2021, the
City is still in the process of updating its general plan, including the land use element. This update requires
approval by the electorate. The City anticipates placing the issue on the ballot in March 2023 with multiple
implementing program actions to be completed
subsequent to voter approval. The housing element
has been written to be consistent with the Preferred
Land Use Plan. Should the ballot measure be
disapproved by the electorate, the City must take
additional timely actions as outlined in Program 15
(Monitoring the Effect of Article 27 of the City Charter [Measure DD]) to ensure continued compliance with
State Housing Element Law.

Bill Brand, Mayor
Members of the City Council
May 9, 2023

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(Letter re Redondo Beach’s 6th Cycle (2021-2029) Adopted Housing Element (HCD, Sept. 1, 2022), available as of the date of this letter at https://www.redondo.org/civicax/filebank/blobdload.aspx?BlobID=41170.) The City failed to hold any such election.

Program 15 specifically required a ballot measure necessary to undertake required land-use and zoning changes to accommodate the number of promised Regional Housing Needs Allocation (“RHNA”) units upon which the HCD based its finding of compliance. The necessity of voter approval for the City to adopt a legally compliant housing element derives from Measure DD, which added article XXVII to the City Charter. Section 27.4, subsection (a) of article XXVII requires that voters approve “(e)ach major change in allowable land use,” with a major change in land-use defined as “any proposed amendment, change, or replacement of the General Plan . . . of the City's zoning ordinance . . . or of the zoning ordinance for the coastal zone” that would significantly increase traffic, density or intensity of the use, change the land use from public to private use, or transition allowable land uses from non-residential to residential or mixed-use and such transfer exceeds density of 8.8 dwelling units per-acre. (City of Redondo Beach Charter, §§ 27.2 (f)(1)(2) and (3).)
Along with Program 15, the HCD's determination of compliance letter identified a total of nine programs which required the City to take further action in order to make the housing element it submitted to actually be compliant. It does not seem any of these actions have been taken. The City's adopted Housing Element unequivocally requires “major land-use changes” to ensure delivery of its RHNA commitments and thereby achieve compliance. The Housing Element proposes building on numerous “nonvacant” sites currently zoned for non-residential use and transitioning those sites for residential development. Such rezoning indisputably trips the allowable density threshold under the City Charter, thereby making it a “major land-use change.” The City did not adopt any ballot measures necessary to undertake these changes, and otherwise seemingly has taken no action to carry through on the promises it made to HCD.

The compliance status of the City's housing element is currently under review in Los Angeles Superior Court and is the subject of threatened litigation by third-party interest groups promoting development of residential housing. The grounds for those challenges to the City's Housing Element are in the same vein as the above; that the City has not yet effectively adopted a compliant Housing Element and has not taken requisite steps to ensure actual delivery on its promises to the HCD.

Among other things, NCD's lawsuit challenges the legitimacy of the City's designation of potential project sites for residential development and alleges those designations to be infeasible, if not unrealistic. (See Petition for Writ of Mandate filed by NCD and Leonid Pustilnikov on June 13, 2022, amended January 26, 2023, LASC case no. 22TRCP00203 (“Housing Element Lawsuit”), enclosed.) Many of the “non-vacant” development sites proposed for RHNA units have pre-existing leases and uses that foreclose displacement by residential uses in the relevant housing cycle. (Id., ¶ ¶ 50-51, Bill Brand, Mayor
Members of the City Council
May 9, 2023

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66-67). The NCD lawsuit further challenges the City's housing element for the City's failure to conduct the necessary ballot measure for the City's voters to approve the major land-use changes necessary to adopt the housing element that the HCD deemed “compliant.” (Id., ¶¶ 52, 54).

To add to NCD's pending lawsuit, third-party housing advocacy group, YIMBY Law, also has threatened litigation to challenge the City's housing element and adoption. YIMBY Law's concerns echo those identified in NCD's complaint; that the City has not adequately identified sites to develop the City's affordable housing requirements and has not actually adopted its housing element pursuant to the terms of the City's charter. (See Notice of Claims by YIMBY LAW dated December 21, 2022, addressed to the City and City Council, enclosed). The confluence of attacks on the City's Housing Element reveals fatal flaws and nagging questions about its legal sufficiency.

2. THE HAA AND RELATED ENVIRONMENTAL FRAMEWORK ARE INTENDED TO CO-EXIST.

The Staff Report provided in advance of the appeal hearing suggests that the City also rejected the Project application due to inconsistency with the City's Local Coastal Program (“LCP”).6 Case law and subsequent amendments to the HAA demonstrate an intent for the two statutes to harmonize their respective goals; namely, to approve development of HAA housing developments, with feasible mitigation to address compliance with coastal environmental concerns, if necessary.

In 2016, a housing development was proposed for the Coastal Zone that was the recipient of density bonus incentives and other concessions. Opponents of the project appealed and challenged approval of the project based in part on a claim that the incentives were in violation of the Coastal Act. The appellate court did not review the issue of the relationship between the HAA and the Coastal Act, but it opined in dicta that the State Density Bonus Law was subordinate to the Coastal Act. (See Kalnel Gardens, LLC v. City of Los Angeles (2016) 3 Cal.App.5th 927, 934.) In response, the Legislature amended the State Density Bonus Law in 2018, specifically referencing the Kalnel decision and the dicta therein stated, to clarify that the two statutes are to be harmonized: “(a)ny density bonus, concessions, incentives, waivers or reductions of development standards, and parking ratios to which the applicant is entitled under this section shall be permitted in a manner that is consistent with this section and Division 20 (commencing with Section 30000) of the Public Resources Code” (the Coastal Act). (Ibid., emphasis added; Gov. Code, § 65915, subd. (m).) The Legislature's amendment to the State Density Bonus Law in light of the Kalnel decision demonstrates the intent to continue incentivizing affordable housing in the Coastal Zone while also allowing for appropriate mitigation and other measures to comply with the Coastal Act.
6 The Staff Report for the Appeal hearing was made available by posting to the City’s website on Friday, May 5, 2023.

Bill Brand, Mayor
Members of the City Council
May 9, 2023

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While the HAA does include a “savings clause” stating that its provisions do not “relieve the local agency” from complying with the Coastal Act, nothing in the HAA states or even suggests that the Coastal Act somehow overrides, supersedes or preempts the HAA. Indeed, in the context of potentially conflicting statutes, courts are required to harmonize the two enactments. As one court observed, If, after an examination of the statutes in context, they “conflict on a central element, we strive to harmonize them so as to give effect to each. If conflicting statutes cannot be reconciled, later enactments supersede earlier ones
[citation], and more specific provisions take precedence over more general ones [citation].”
(City of Chula Vista v. Drager (2020) 49 Cal.App.5th 539 citing Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301, 310.) The HAA is the later of the two statutes; it has more force, effect and specificity with respect to legislative intent directing government agencies to adhere to its provisions for HAA housing development projects.

By way of example, recent amendments to the HAA state:

The Legislature’s intent in enacting this section in 1982 and in expanding provisions since then was to significantly increase the approval and construction of new housing for all economic segments of California’s communities by
meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render
infeasible housing development projects and emergency
shelters. That intent has not been fulfilled.
(Gov. Code, § 65589.5, subd. (a)(2)(K), emphasis added.) The HAA also expressly provides that “[it] is the policy of the state that this section be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.” (Id., § 65589.5, subd. (a)(2)(L), emphasis added.) The HAA also states “[i]t is the intent of the Legislature that the conditions that would have a specific, adverse impact upon the public health and safety, as described in paragraph (2) of subdivision (d) and paragraph (1) of subdivision (j), arise infrequently.” (Id., § 65589.5, subd. (a)(3).) In striking the balance between the HAA and the Coastal Act, a court would have to take note of the Coastal Act’s provision regarding affordable housing:

Nothing in this division shall exempt local governments from meeting the requirements of state and federal law with
respect to providing low- and moderate-income housing,
replacement housing, relocation benefits, or any other
obligation related to housing imposed by existing law or any law hereafter enacted
(Pub. Resources Code, § 30007.)
Bill Brand, Mayor
Members of the City Council
May 9, 2023

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3. CONCLUSION.

City staff are bound by the HAA -- and by principles established by case law -- to process applications for housing development projects like this; it is a mandatory duty. (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].) If you have any questions about this letter, please do not hesitate to call me. Representatives of the Owner will be on hand at the May 9, 2023, hearing to answer any questions.

Very truly yours,
Michael W. Shonafelt
cc: Michael W. Webb, Esq., City Attorney - [email protected] Brandy Forbes, Community Development Director - [email protected] Leo Pustilnikov - [email protected]
Brandon Straus - [email protected]
EXHIBIT 1
STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
May 8, 2023
City of Redondo Beach
Mayor and City Council Members
415 Diamond Street
Redondo Beach, CA 90277
Dear Mayor Bill Brand, Council Member Nils Nehrenheim, Council Member Todd Loewenstein, Council Member Paige Kaluderovic, Council Member Zein Obagi, Jr., and Council Member Scott Behrendt:

RE: City of Redondo Beach 1100 N. Harbor Drive – Letter of Technical Assistance The California Department of Housing and Community Development (HCD) understands the City of Redondo Beach (City) City Council will consider an appeal of the application of the proposed housing project on the former AES Power Plant Facility located at 1100 N.

Harbor Drive (Project). The purpose of this letter is to assist the City with its decisionmaking by providing technical assistance related to State Housing Element Law (Gov.

Code, § 65580 et seq.) and the Housing Accountability Act (Gov. Code, § 65589.5). HCD recognizes the challenge of interpreting ever-changing housing and land use laws and appreciates the opportunity to provide technical assistance.

Background
HCD understands the Project would result in 2,700 housing units (2,160 market rate units and 540 units available to low-income households), 300 hotel rooms, 550,000 square feet of office space and 160,000 square feet of retail space. The City will hear an appeal to its March 3, 2023, letter to 9300 Wilshire, LLC. (Applicant) that determined the development application for the Project was incomplete. The City’s incomplete letter provided the Applicant with a comprehensive list of items required to process the application. The City’s determination was fundamentally based on the conclusion that the housing element adopted on July 5, 2022, was substantially compliant with State Housing Element Law, and; therefore, the Project was not entitled to the protections granted under Government Code section 65589.5, subdivision (d)(5) (colloquially referred to as the “Builder’s Remedy”).

The following are key dates related to the Project and the City’s 6th Cycle Housing Element:
• July 5, 2022 – The City adopted its 6th Cycle Housing Element.

City of Redondo Beach, Mayor and City Council Members

Page 2 ends

• August 12, 2022 – The Applicant submitted its Preliminary Application. • August 15, 2022 – The Applicant submitted an updated Preliminary Application and architectural plan set.
• September 1, 2022 – HCD issued a letter finding the City’s July 5, 2022, adopted 6th Cycle Housing Element to be in substantial compliance.1 • February 6, 2023 – The Applicant submitted its development application.

Housing Element Compliance
Pursuant to Government Code Section 65585, a local jurisdiction must submit a draft housing element to HCD and receive HCD’s findings. If HCD finds the draft element is not substantially compliant, the local jurisdiction must revise the draft to address any findings by HCD (Gov. Code, § 65585, subd. (f)(2)). Promptly following adoption, the local jurisdiction must submit the adopted housing element to HCD (Gov. Code, § 65585, subd. (h)).

In other words, a local jurisdiction does not have the authority to determine that its adopted element is in substantial compliance. A local jurisdiction is “in compliance” as of the date of HCD’s letter finding the adopted element in substantial compliance.2 A local jurisdiction cannot “backdate” compliance to the date of adoption of a housing element. For the City of Redondo Beach, the housing element was found by HCD to be in substantial compliance on September 1, 2022.

Housing Accountability Act (HAA)
Pursuant to Government Code section 65589.5, subdivision (d), a jurisdiction shall not disapprove a housing development project for very low-, low-, or moderate-income households3 or condition approval in a manner that renders the housing development project infeasible for development for the use of very low-, low-, or moderate-income households unless it makes written findings, based upon a preponderance of evidence in the record, as to one of five findings in subdivision (d). 1 HCD Approval Letter - Redondo Beach’s 6th Cycle (2021-2029) Adopted Housing Element, dated September 1, 2022. Attached.
2 HCD, Memorandum - Summary and Clarification of Requirements for Housing Element Compliance, dated March 16, 2023. Attached.
3 “Housing for very low, low-, or moderate-income households” means that either (A) at least 20 percent of the total units shall be sold or rented to lower-income households, as defined in Section 50079.5 of the Health and Safety Code, or (B) 100 percent of the units shall be sold or rented to persons and families of moderate income as defined in Section 50093 of the Health and Safety Code, or persons and families of middle income, as defined in Section 65008 of this code (Gov. Code, § 65589.5, subd. (h)(3)).

City of Redondo Beach, Mayor and City Council Members

Page 3 ends

If a local jurisdiction’s adopted housing element is not found substantially compliant by HCD as of the jurisdiction’s statutory deadline, the jurisdiction may not use subdivision (d)(5) of Government Code section 65589.5, inconsistency with zoning and general plan standards, as a basis to lawfully deny qualifying an affordable housing project. Again, subdivision (d)(4) is colloquially referred to as the “Builder’s Remedy.” Alternative means of denial may be available, such as subdivisions (d)(2) through (d)(4), and under subdivision (e), jurisdictions are still required to comply with both California Environmental Quality Act (CEQA) and the California Coastal Act,
4 as applicable.

Preliminary Application
Pursuant to Government Code section 65941.1, subdivision (a), the submittal of a complete Preliminary Application vests the right to develop a housing development project in accordance with the ordinances, policies, and standards in effect when a preliminary application is submitted. (Gov. Code §65589.5, subd. (o)(1)).

The central point of contention between the City and the Applicant is as follows:

Can the Project utilize “Builder’s Remedy” if the Applicant submitted a complete preliminary application after the City adopted a housing element, but before HCD has found the housing element to be in substantial compliance? The answer is “yes.” The submittal of a complete preliminary application pursuant to Government Code section 65941.1 vests the right to develop a housing development project in accordance with the ordinances, policies, and standards in effect when a preliminary application is submitted. (Gov. Code § 65589.5, subd. (o)(1)). Therefore, if the preliminary application submittal occurs at a time when the jurisdiction does not have a compliant housing element, and the development submittal occurs within the 180-day required period5, any potential benefits afforded to the applicant resulting from the jurisdiction’s noncompliant status would remain throughout the entitlement process even if the jurisdiction subsequently achieves compliance.

Conclusion
Notwithstanding the unique environmental circumstances of this Project site, the City should remain mindful of its obligations under the HAA as it considers the appeal of the 4 “Nothing in this section shall be construed to relieve the local agency from complying with the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code) or from making one or more findings required pursuant to Section 21081 of the Public Resources Code or otherwise complying with California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resource Code).” (Gov. Code, § 65589.5, subd. (e)). 5 Gov. Code § 65941.1, subd. (d)(1)
City of Redondo Beach, Mayor and City Council Members

Page 4 ends

Project application. Because the City had not attained substantial compliance with the State Housing Element Law until September 1, 2022, the City may not deny the Project pursuant to Government Code section 65589.5, subdivision (d)(5). HCD would also like to remind the City that HCD has enforcement authority over the HAA, among other state housing laws. Accordingly, HCD may notify the California Office of the Attorney General that a local government is in violation of state law (Gov. Code, § 65585, subd. (j)).

HCD remains committed to supporting Redondo Beach in achieving housing objectives across all income categories and hopes the City finds this clarification helpful. If you have any questions or need additional information, please contact Gabriel A. Pena-Lora, of our staff, at [email protected].

Sincerely,
Shannan West,
Housing Accountability Unit Chief
cc: Brandy Forbs, AICP, Community Development Director
STATE OF CALIFORNIA - BUSINESS CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
September 1, 2022
Mike Witzansky, City Manager
City of Redondo Beach
415 Diamond Street
Redondo Beach, CA 90277
Dear Mike Witzansky:

RE: Redondo Beach’s 6th Cycle (2021-2029) Adopted Housing Element Thank you for submitting the City of Redondo Beach’s (City) housing element adopted July 5, 2022 and received for review on July 11, 2022. Pursuant to Government Code section 65585, subdivision (h), the California Department of Housing and Community Development (HCD) is reporting the results of its review. HCD considered comments from Oliver Fries, Leo Pustilnikov, Dawn Sarmiento, Chris Voisey, Mushki Gorowitz, Abundant Housing LA, YIMBY Law, John & Laurie Oester, Josh Albrekston, Grace Peng and Susan Andrade pursuant to Government Code section 65585, subdivision (c).

HCD is pleased to find the adopted housing element in full compliance with State Housing Element Law (Article 10.6 of the Gov. Code). The adopted element addresses the statutory requirements described in HCD’s April 12, 2022 review, including required analysis of sites proposed for rezoning and amendments to multiple programs, including programs to affirmatively further fair housing.

HCD commends the inclusion of an executive summary in the housing element. By providing additional history and context regarding policy decisions, the executive summary assists the public in its review of the housing element. The City must continue timely and effective implementation of all programs including but not limited to the following:
• Program 6 (Affordable Housing Development) includes multiple strategies and incentives to facilitate affordable housing development for a variety of housing types.
• Program 8 (Residential Sites Inventory and Monitoring No Net Loss) commits to rezone sites to address a shortfall of sites available to accommodate affordable housing and to ensure the City’s Regional Housing Need Allocation (RHNA) can be accommodated for all income levels at all times throughout the planning period.

Mike Witzansky, City Manager

Page 2 ends

• Program 9 (By-Right Approval for Projects with 20 Percent Affordable Units) ensures nondiscretionary processing for nonvacant sites identified in the City’s previous housing element.
• Program 11 (Small Lot Development/Lot Consolidation) facilitates, incentivizes, and expedites affordable development on small lots, including the consolidation of small lots.
• Program 12 (Accessory Dwelling Units) includes actions to facilitate the development of 240 ADUs within the planning period, monitor the City’s progress in meeting the goal, and adjusting its strategies and incentives if the City is not meeting that goal in 2025.
• Program 13 (Amendments to the Zoning Ordinance) commits to update the City’s Zoning Ordinance to comply with multiple state laws and implement the City’s new General Plan.
• Program 14 (Objective Design Standards) commits the City to update existing design standards to create objective standards by the end of 2022 and the create objective standards for rezoned sites by October 15, 2024. • Program 15 (Monitoring the Effect of Article 27 of the City Charter [Measure DD]) ensures the City monitors and responds appropriately to votes of the electorate, including a vote regarding the recommended Land Use Plan of the General Plan and associated rezoning required by State Housing Element Law. • Program 18 (Fair Housing) includes a variety of actions to ensure that the City meets its obligation to Affirmatively Further Fair Housing (AFFH) pursuant to Government Code section 8899.50.

HCD acknowledges that although the City Council adopted a Preferred Land Use Plan in May 2021, the City is still in the process of updating its general plan, including the land use element. This update requires approval by the electorate. The City anticipates placing the issue on the ballot in March 2023 with multiple implementing program actions to be completed subsequent to voter approval. The housing element has been written to be consistent with the Preferred Land Use Plan. Should the ballot measure be disapproved by the electorate, the City must take additional timely actions as outlined in Program 15 (Monitoring the Effect of Article 27 of the City Charter [Measure DD]) to ensure continued compliance with State Housing Element Law.

Regarding Program 13 (Amendments to the Zoning Ordinance), HCD reminds the City that although the Zoning Ordinance may not be updated, and regardless of housing element compliance status, the City has an obligation to apply current state law as opposed to an outdated zoning code, examples include:
• Density Bonus,
• Transitional and Supportive Housing,
• Emergency Shelters and Low Barrier Navigation Centers, • Affordable Housing Streamlined Approval (SB 35),
• Employee Housing,
Mike Witzansky, City Manager

Page 3 ends

• Reasonable Accommodation,
• Definition of Family, and
• Unlicensed Group Homes.

The element includes Program 8 (Residential Sites Inventory and Monitoring of No Net Loss) identifying adequate sites to accommodate the shortfall of 1,164 units for lowerincome households. Among other things, the program commits to zoning with densities of 20-55 units per acre and permitting owner-occupied and rental multifamily uses by right for developments in which 20 percent or more of the units are affordable to lower income households. Pursuant to Senate Bill 197 (Chapter 70, Statutes of 2022), as the City failed to adopt a compliant housing element within 120 days of the statutory deadline (October 15, 2021), Program 8 (Residential Sites Inventory and Monitoring of No Net Loss) must be completed no later than three years and 120 days from the statutory deadline (February 12, 2025). Otherwise, the local government’s housing element will no longer comply with State Housing Element Law, and HCD may revoke its finding of substantial compliance pursuant to Government Code section 65585, subdivision (i).

The City must monitor and report on the results of all housing element programs through the annual progress report, required pursuant to Government Code section 65400. Please be aware, Government Code section 65585, subdivision (i) grants HCD authority to review any action or failure to act by a local government that it determines is inconsistent with an adopted housing element or housing element law. This includes failure to implement program actions included in the housing element. HCD may revoke housing element compliance if the local government’s actions do not comply with state law.

Several federal, state, and regional funding programs consider housing element compliance as an eligibility or ranking criteria. For example, the CalTrans Senate Bill (SB) 1 Sustainable Communities grant; the Strategic Growth Council and HCD’s Affordable Housing and Sustainable Communities programs; and HCD’s Permanent Local Housing Allocation consider housing element compliance and/or annual reporting requirements pursuant to Government Code section 65400. With a compliant housing element, the City meets housing element requirements for these and other funding sources.

For your information, some general plan element updates are triggered by housing element adoption. HCD reminds the City to consider timing provisions and welcomes the opportunity to provide assistance. For information, please see the Technical Advisories issued by the Governor’s Office of Planning and Research at:
https://www.opr.ca.gov/planning/general-plan/guidelines.html.

Mike Witzansky, City Manager

Page 4 ends

HCD appreciates the dedication, professionalism, cooperation, and assistance the City’s housing element team provided throughout the course of the housing element review. Among others, the team included yourself, Brandy Forbes, Community Development Director, Sean Scully, Planning Manager, and the City’s consultant, Veronica Tam. HCD wishes the City success in implementing its housing element and looks forward to following its progress through the General Plan annual progress reports pursuant to Government Code section 65400. If HCD can provide assistance in implementing the housing element, please contact Robin Huntley, of our staff, at [email protected].

Sincerely,
Paul McDougall
Senior Program Manager
STATE OF CALIFORNIA - BUSINESS CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov

MEMORANDUM
DATE: March 16, 2023
TO: Planning Directors and Interested Parties
FROM: Megan Kirkeby, Deputy Director
Division of Housing Policy Development
SUBJECT: Summary and Clarification of Requirements for Housing Element Compliance
HCD is committed to diligently reviewing all 539 local jurisdictions’ housing elements for substantial compliance with State Housing Element Law. To comply with State Housing Element Law and avoid the consequences of noncompliance, a local jurisdiction must, among other things:

1. Submit a draft housing element to HCD at least 90 days before adoption1 and receive findings from HCD determining whether the draft element is substantially compliant,2 and consider HCD’s findings before adopting the draft element.3 In other words, where a jurisdiction submits an “adopted” housing element before submitting an initial draft or before considering HCD’s findings on an initial draft, HCD will consider the “adopted” to be an initial draft for purposes of both HCD’s review and the jurisdiction’s statutory compliance.

2. If HCD finds the draft element is not substantially compliant, revise the draft to address any findings by HCD4 or adopt without changes and include written findings explaining why the jurisdiction believes that the draft substantially complies.5 Promptly following adoption, submit the adopted housing element to HCD6 and receive findings on the adopted element from HCD.7
1 Gov. Code, § 65585, subd. (b)(1)
2 Gov. Code, § 65585, subds. (b)(3), (d)
3 Gov. Code, § 65585, subd. (e)
4 Gov. Code, § 65585, subd. (f)(1)
5 Gov. Code, § 65585, subd. (f)(2)
6 Gov. Code, § 65585, subd. (g)
7 Gov. Code, § 65585, subd. (h)
Summary and Clarification of Requirements for Housing Element Compliance

Page 2 ends

In addition, a jurisdiction is “in compliance” as of the date of HCD’s letter finding the adopted element in substantial compliance. Any other letters are not a finding of substantial compliance.

HCD recommends that a jurisdiction adopt only after receiving a letter from HCD finding the draft meets statutory requirements.

For more detailed information about this process, please visit HCD’s Housing Elements webpage and Housing Elements Building Blocks.

EXHIBIT 2

EXHIBIT 3
STATE OF CALIFORNIA - BUSINESS CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov

Page 2 ends

HCD recommends that a jurisdiction adopt only after receiving a letter from HCD finding the draft meets statutory requirements.

For more detailed information about this process, please visit HCD’s Housing Elements webpage and Housing Elements Building Blocks.

EXHIBIT 4
STATE OF CALIFORNIA - BUSINESS CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
October 5, 2022
Dave Rand
Rand Paster & Nelson LLP
633 W. Fifth Street, 64th floor
Los Angeles, CA 90071
Dear Dave Rand:

RE: 3030 Nebraska Avenue, Santa Monica – Letter of Technical Assistance This letter is in response to your September 16, 2022, request for technical assistance regarding the implementation of the Housing Accountability Act (HAA), particularly those provisions that require housing element compliance, in the context of the proposed multi-family residential development in Santa Monica at the address noted above. The inquiry pertains to the relationship of preliminary applications to projects that invoke the provisions of subdivision (d)(5) of Government Code section 65589.5 once a housing element has been found in substantial compliance with State Housing Element Law.

Background
A housing development project with housing for very low-, low-, or moderate-income households1 cannot be denied (or approved in a way such that conditions render the inclusion of affordable housing infeasible) unless one of five potential written findings, based upon a preponderance of the evidence in the record, can be made. (Gov. Code, § 65589.5, subd. (d).) Under subdivision (d)(5), a jurisdiction can only deny a qualifying project if both of the following criteria are satisfied: (1) The project is inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation and (2) the jurisdiction has a housing element in substantial compliance with State Housing Element Law. Therefore, the status of a jurisdiction’s housing element is of critical importance when determining the applicability of the provisions of subdivision (d)(5). 1 “Housing for very low, low-, or moderate-income households” means that either (A) at least 20 percent of the total units shall be sold or rented to lower income households, as defined in Section 50079.5 of the Health and Safety Code, or (B) 100 percent of the units shall be sold or rented to persons and families of moderate income as defined in Section 50093 of the Health and Safety Code, or persons and families of middle income, as defined in Section 65008 of this code. (Gov. Code, § 65589.5, subd. (h)(3).)
Dave Rand, Rand Paster & Nelson LLP

Page 2 ends

Analysis
The question posed in your September 16, 2022; request is as follows:

If a preliminary application is submitted to a jurisdiction without a compliant Housing Element, and the jurisdiction subsequently achieves Housing Element compliance during the project’s entitlement process, do the rights vested by the preliminary application continue to apply?
The answer is “yes.” The submittal of a complete preliminary application pursuant to Government Code section 65941.1 vests the right to develop a housing development project in accordance with the ordinances, policies, and standards in effect when a preliminary application is submitted. (Gov. Code § 65589.5, subd. (o)(1).) Therefore, if the submittal occurs at a time when the jurisdiction does not have a compliant housing element, any potential benefits afforded to the applicant as a result of the jurisdiction’s noncompliant status would remain throughout the entitlement process even if the jurisdiction subsequently achieves compliance during the entitlement process.

If you have questions or need additional information, please contact Brian Heaton at [email protected].

Sincerely,
Melinda Coy
Proactive Housing Accountability Unit Chief
EXHIBIT 5
STATE OF CALIFORNIA - BUSINESS CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
March 22, 2023
Susan Koleda, AICP
Director of Community Development
City of La Cañada Flintridge
One Civic Center Drive
La Cañada Flintridge, CA 91011
Dear Susan Koleda:

RE: City of La Cañada Flintridge 600 Foothill Boulevard – Letter of Technical Assistance
The California Department of Housing and Community Development (HCD) understands that the City of La Cañada Flintridge (City) City Council will hear an appeal for consideration of the application of the project at 600 Foothill Boulevard (Project). The purpose of this letter is to assist the City with its decision-making by providing technical assistance related to State Housing Element Law (Gov. Code, § 65580 et seq.) and the Housing Accountability Act (Gov. Code, § 65589.5). HCD recognizes the challenge of interpreting ever-changing housing and land use laws and appreciates the opportunity to provide technical assistance.

Background
HCD understands that the City will hear an appeal to its March 1, 2023, letter to Cedar Street Partners LLC determining the application for the Project was incomplete. The City’s determination was based on its conclusion that the housing element adopted on October 4, 2022, was substantially compliant with State Housing Element Law and therefore the project was not qualified to apply with the protections granted under Government Code section 65589.5, subdivision (d)(5).

As you are aware, on December 6, 2022, HCD found the October 4, 2022, housing element to not be in substantial compliance, and while the City submitted a revised adopted element on February 23, 2023, HCD has not yet completed its review pursuant to Government Code section 65585, subdivision (h). As of the date of this letter, the City’s housing element is not in substantial compliance with State Housing Element Law.

Susan Koleda

Page 2 ends

Housing Element Compliance
Pursuant to Government Code section 65585, a local jurisdiction must submit a draft housing element to HCD and receive HCD’s finding. If HCD finds the draft element is not substantially compliant, the local jurisdiction must revise the draft to address any findings by HCD (Gov. Code, § 65585, subd. (f)(1)) or adopt without changes and include written findings explaining why the local jurisdiction believes that the draft substantially complies (Gov. Code, § 65585, subd. (f)(2)). Promptly following adoption, the local jurisdiction must submit the adopted housing element to HCD (Gov. Code, § 65585, subd. (g)) and receive findings on the adopted element from HCD (Gov. Code, § 65585, subd. (h)).

In other words, a local jurisdiction does not have the authority to determine that its adopted element is in substantial compliance but may provide reasoning why HCD should make a finding of substantial compliance. A local jurisdiction is “in compliance” as of the date of HCD’s letter finding the adopted element in substantial compliance. A local jurisdiction cannot “backdate” compliance to the date of adoption of a housing element. Moreover, as stated above, the October 4, 2022, adopted element did not substantially comply with State Housing Element Law. It should also be noted that the City’s October 4, 2022, resolution adopting the housing element made no findings pursuant to Government Code section 65585, subdivision (f)(2).

If a local jurisdiction’s adopted housing element is not found substantially compliant by HCD as of the jurisdiction’s statutory deadline, the jurisdiction would be unable to use subdivision (d)(5) of Government Code section 65589.5, inconsistency with zoning and general plan standards, as a basis to lawfully deny qualifying an affordable housing project as defined in subdivision (h). This is colloquially referred to as the “Builder’s Remedy.” Alternative means of denial may be available, such as subdivisions (d)(2) through (d)(4), and under subdivision (e), jurisdictions are still required to comply with 1 “Housing for very low, low-, or moderate-income households” means that either (A) at least 20 percent of the total units shall be sold or rented to lower income households, as defined in Section 50079.5 of the Health and Safety Code, or (B) 100 percent of the units shall be sold or rented to persons and families of moderate income as defined in Section 50093 of the Health and Safety Code, or persons and families of middle income, as defined in Section 65008 of this code (Gov. Code, § 65589.5, subd. (h)(3)).

Susan Koleda

Page 3 ends

both California Environmental Quality Act (CEQA) and the California Coastal Act, as applicable.

Conclusion
The City should remain mindful of its obligations under the HAA as it considers the appeal of the Project application. Because the City has not attained substantial compliance with State Housing Element Law, the City may not deny the Project pursuant to Government Code section 65589.5, subdivision (d)(5). HCD would also like to remind the City that HCD has enforcement authority over the HAA, among other state housing laws. Accordingly, HCD may notify the California Office of the Attorney General that a local government is in violation of state law (Gov. Code, § 65585, subd. (j)).

HCD remains committed to supporting La Cañada Flintridge in achieving housing objectives across all income categories and hopes the City finds this clarification helpful.

If you have any questions or need additional information, please contact me at [email protected].

Sincerely,
Melinda Coy
Proactive Housing Accountability Chief
You don't often get email from [email protected]. Learn why this is important From: Melissa Villa
To: Latrice Williams; Wendy Menendez
Cc: Lina Carrillo; Brandy Forbes
Subject: FW: 9300 Wilshire LLC, et al. – 1100 N. Harbor Dr. Appeal Hearing Date: Tuesday, May 9, 2023 1:37:27 PM
Attachments: image001.png
image003.png
image004.png
image005.png
Ltr to City Council re Appeal 5-9-23.pdf
Hello,
Here is another to add to the blue folder.

Thank you,
Melissa Villa
Ext. 2202
From: Eleanor Manzano
Sent: Tuesday, May 9, 2023 1:36 PM
To: Melissa Villa <[email protected]>
Subject: FW: 9300 Wilshire LLC, et al. – 1100 N. Harbor Dr. Appeal Hearing Blue folder…
From: Ruby Williams <[email protected]>
Sent: Tuesday, May 9, 2023 1:14 PM
To: Mike Witzansky <[email protected]>; Eleanor Manzano <[email protected]>
Cc: Michael W. Shonafelt <[email protected]>; Michael Webb <[email protected]>; Brandy Forbes <[email protected]>; Leo Pustilnikov <[email protected]>; [email protected]
Subject: 9300 Wilshire LLC, et al. – 1100 N. Harbor Dr. Appeal Hearing CAUTION: Email is from an external source; Stop, Look, and Think before opening attachments or links.

Sent on behalf of Michael Shonafelt
Original to follow by U.S. Mail.

Ruby Williams
Legal Administrative Assistant
949.271.7238 | [email protected]
Our address has changed! Please note our new floor number.

Newmeyer & Dillion LLP
895 Dove Street, 2nd Floor
Newport Beach, CA 92660
newmeyerdillion.com
You don't often get email from [email protected]. Learn why this is important From: Melissa Villa
To: Latrice Williams; Wendy Menendez
Cc: Lina Carrillo; Brandy Forbes
Subject: FW: SWMSRCC - [City of Redondo Beach, 1100 North Harbor Drive (AKA One Redondo Mixed-Use Project)] Comment Letter
Date: Tuesday, May 9, 2023 8:10:37 AM
Attachments: 20230508 Redondo ApplicantAppealCL Signed Complete.pdf image001.png
Good morning,
The attached was received in the Clerk’s inbox related to L.1 tonight. Please prepare as a blue folder and forward to either myself or to the City Clerk email by 3pm.

Thank you,
Melissa Villa
Administrative Specialist
City of Redondo Beach │ City Clerk’s Office
415 Diamond Street │ Redondo Beach, CA 90277
310.318.0656 ext. 2202
[email protected]
From: Malou Reyes <[email protected]>
Sent: Monday, May 8, 2023 5:40 PM
To: CityClerk <[email protected]>; Brandy Forbes <[email protected]> Cc: Armita Ariano <[email protected]>; Mitchell M. Tsai Attorney at Law, P.C. <[email protected]>
Subject: SWMSRCC - [City of Redondo Beach, 1100 North Harbor Drive (AKA One Redondo MixedUse Project)] Comment Letter CAUTION: Email is from an external source; Stop, Look, and Think before opening attachments or links.

Good afternoon,
Our office would like to submit the attached comment letter for the May 9, 2023 City Council meeting.

Please confirm receipt of this email.

Thank you,
Malou
--
Malou Reyes
Paralegal
Mitchell M. Tsai, Attorney At Law
139 South Hudson Avenue Suite 200
Pasadena, CA 91101
Phone: (626) 314-3821
Fax: (626) 389-5414
Email: [email protected]
Website: http://www.mitchtsailaw.com
*** Our Office Has Recently Moved. Please Note New Mailing Address **** CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages accompanying it, may contain confidential information that is legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED and may violate applicable laws including the Electronic Communications Privacy Act. If you have received this transmission in error, please immediately notify us by reply e-mail at [email protected] or by telephone at (626) 381-9248 and destroy the original transmission and its attachments without reading them or saving them to disk. Thank you.

P: (626) 381-9248
F: (626) 389-5414
E: [email protected]
Mitchell M. Tsai
Attorney At Law
139 South Hudson Avenue
Suite 200
Pasadena, California 91101

VIA E-MAIL
May 8, 2023
City Council Brandy Forbes
City of Redondo Beach Community Development Director
415 Diamond Street 415 Diamond Street, PO Box 270
Redondo Beach, CA 90277 Redondo Beach, CA 90277
Em: [email protected] Em: [email protected]

RE: City of Redondo Beach’s 1100 N. Harbor Drive Project.

Dear Honorable Councilmembers and Brandy Forbes,
On behalf of the Southwest Mountain States Regional Council of Carpenters (“Southwest Mountain States Carpenters” or “SWMSRCC”), my Office is submitting these comments for the City of Redondo Beach’s (“City”) May 9, 2023 City Council Hearing for the 1100 N. Harbor Drive Project (“Project”).

The Southwest Mountain States Carpenters is a labor union representing 63,000 union carpenters in 10 states, including California, and has a strong interest in well-ordered land use planning and in addressing the environmental impacts of development projects.

Individual members of SWMSRCC live, work, and recreate in the City and surrounding communities and would be directly affected by the Project’s environmental impacts.

The Southwest Mountain States Carpenters expressly reserves the right to supplement these comments at or prior to hearings on the Project, and at any later hearing and proceeding related to this Project. Gov. Code, § 65009, subd. (b); Pub. Res. Code, § 21177, subd. (a); see Bakersfield Citizens for Local Control v. Bakersfield (2004) 124 Cal.App.4th 1184, 1199-1203; see also Galante Vineyards v. Monterey Water Dist. (1997) 60 Cal.App.4th 1109, 1121.

The Southwest Mountain States Carpenters incorporates by reference all comments raising issues regarding the environmental documents submitted prior to approval of City of Redondo Beach – 1100 N. Harbor Drive Project
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the Project. See Citizens for Clean Energy v City of Woodland (2014) 225 Cal.App.4th 173, 191 (finding that any party who has objected to the project’s environmental documentation may assert any issue timely raised by other parties).

Moreover, the Southwest Mountain States Carpenters requests that the City provide notice for any and all notices referring or related to the Project issued under the California Environmental Quality Act (CEQA) (Pub. Res. Code, § 21000 et seq.), and the California Planning and Zoning Law (“Planning and Zoning Law”) (Gov.

Code, §§ 65000–65010). California Public Resources Code Sections 21092.2, and 21167(f) and California Government Code Section 65092 require agencies to mail such notices to any person who has filed a written request for them with the clerk of the agency’s governing body.

I. THE CITY SHOULD REQUIRE THE USE OF A LOCAL
WORKFORCE TO BENEFIT THE COMMUNITY’S ECONOMIC
DEVELOPMENT AND ENVIRONMENT.

The City should require the Project to be built using a local workers who have graduated from a Joint Labor-Management Apprenticeship Program approved by the State of California, have at least as many hours of on-the-job experience in the applicable craft which would be required to graduate from such a state-approved apprenticeship training program, or who are registered apprentices in a state-approved apprenticeship training program.

Community benefits such as local hire can also be helpful to reduce environmental impacts and improve the positive economic impact of the Project. Local hire provisions requiring that a certain percentage of workers reside within 10 miles or less of the Project site can reduce the length of vendor trips, reduce greenhouse gas emissions, and provide localized economic benefits. As environmental consultants Matt Hagemann and Paul E. Rosenfeld note:
[A]ny local hire requirement that results in a decreased worker trip length from the default value has the potential to result in a reduction of construction-related GHG emissions, though the significance of the reduction would vary based on the location and urbanization level of the project site.

March 8, 2021 SWAPE Letter to Mitchell M. Tsai re Local Hire Requirements and Considerations for Greenhouse Gas Modeling.

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Workforce requirements promote the development of skilled trades that yield sustainable economic development. As the California Workforce Development Board and the University of California, Berkeley Center for Labor Research and Education concluded:
[L]abor should be considered an investment rather than a cost—and investments in growing, diversifying, and upskilling California’s workforce can positively affect returns on climate mitigation efforts. In other words, well-trained workers are key to delivering emissions reductions and moving California closer to its climate targets.1
Furthermore, workforce policies have significant environmental benefits given that they improve an area’s jobs-housing balance, decreasing the amount and length of job commutes and the associated greenhouse gas (GHG) emissions. In fact, on May 7, 2021, the South Coast Air Quality Management District found that that the “[u]se of a local state-certified apprenticeship program” can result in air pollutant reductions.2

Locating jobs closer to residential areas can have significant environmental benefits.

As the California Planning Roundtable noted in 2008:

People who live and work in the same jurisdiction would be more likely to take transit, walk, or bicycle to work than residents of less balanced communities and their vehicle trips would be shorter. Benefits would include potential reductions in both vehicle miles traveled and vehicle hours traveled.3
Moreover, local hire mandates and skill-training are critical facets of a strategy to reduce vehicle miles traveled (“VMT”). As planning experts Robert Cervero and 1 California Workforce Development Board (2020) Putting California on the High Road: A Jobs and Climate Action Plan for 2030 at p. ii, available at https://laborcenter.berkeley.edu/
wp-content/uploads/2020/09/Putting-California-on-the-High-Road.pdf. 2 South Coast Air Quality Management District (May 7, 2021) Certify Final Environmental Assessment and Adopt Proposed Rule 2305 – Warehouse Indirect Source Rule – Warehouse Actions and Investments to Reduce Emissions Program, and Proposed Rule 316 – Fees for Rule 2305, Submit Rule 2305 for Inclusion Into the SIP, and Approve Supporting Budget Actions, available at http://www.aqmd.gov/docs/defaultsource/Agendas/Governing-Board/2021/2021-May7-027.pdf?sfvrsn=10. 3 California Planning Roundtable (2008) Deconstructing Jobs-Housing Balance at p. 6, available at https://cproundtable.org/static/media/uploads/publications/cpr-jobshousing.pdf City of Redondo Beach – 1100 N. Harbor Drive Project
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Michael Duncan have noted, simply placing jobs near housing stock is insufficient to achieve VMT reductions given that the skill requirements of available local jobs must match those held by local residents.4 Some municipalities have even tied local hire and other workforce policies to local development permits to address transportation issues. Cervero and Duncan note that:

In nearly built-out Berkeley, CA, the approach to balancing jobs and housing is to create local jobs rather than to develop new housing. The city’s First Source program encourages businesses to hire local residents, especially for entry- and intermediate-level jobs, and sponsors vocational training to ensure residents are employment-ready. While the program is voluntary, some 300 businesses have used it to date, placing more than 3,000 city residents in local jobs since it was launched in 1986. When needed, these carrots are matched by sticks, since the city is not shy about negotiating corporate participation in First Source as a condition of approval for development permits.

Recently, the State of California verified its commitment towards workforce development through the Affordable Housing and High Road Jobs Act of 2022, otherwise known as Assembly Bill No. 2011 (“AB2011”). AB2011 amended the Planning and Zoning Law to allow ministerial, by-right approval for projects being built alongside commercial corridors that meet affordability and labor requirements.

The City should consider utilizing local workforce policies and requirements to benefit the local area economically and to mitigate greenhouse gas, improve air quality, and reduce transportation impacts.

II. THE CITY SHOULD IMPOSE TRAINING REQUIREMENTS FOR
THE PROJECT’S CONSTRUCTION ACTIVITIES TO PREVENT
COMMUNITY SPREAD OF COVID-19 AND OTHER INFECTIOUS
DISEASES.

Construction work has been defined as a Lower to High-risk activity for COVID-19 spread by the Occupations Safety and Health Administration. Recently, several 4 Cervero, Robert and Duncan, Michael (2006) Which Reduces Vehicle Travel More: JobsHousing Balance or Retail-Housing Mixing? Journal of the American Planning Association 72 (4), 475-490, 482, available at http://reconnectingamerica.org/assets/Uploads/UTCT825.pdf.

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construction sites have been identified as sources of community spread of COVID19.5

Southwest Mountain States Carpenters recommend that the Lead Agency adopt additional requirements to mitigate public health risks from the Project’s construction activities. SWMSRCC requests that the Lead Agency require safe on-site construction work practices as well as training and certification for any construction workers on the Project Site.

In particular, based upon Southwest Mountain States Carpenters’ experience with safe construction site work practices, SWMSRCC recommends that the Lead Agency require that while construction activities are being conducted at the Project Site:

Construction Site Design:
• The Project Site will be limited to two controlled entry points.
• Entry points will have temperature screening
technicians taking temperature readings when the entry
point is open.
• The Temperature Screening Site Plan shows details
regarding access to the Project Site and Project Site logistics for conducting temperature screening.
• A 48-hour advance notice will be provided to all
trades prior to the first day of temperature screening. • The perimeter fence directly adjacent to the entry
points will be clearly marked indicating the appropriate 6- foot social distancing position for when you approach the screening area. Please reference the Apex temperature
screening site map for additional details.
• There will be clear signage posted at the project site directing you through temperature screening.
5 Santa Clara County Public Health (June 12, 2020) COVID-19 CASES AT

CONSTRUCTION SITES HIGHLIGHT NEED FOR CONTINUED VIGILANCE IN SECTORS THAT HAVE REOPENED, available at https://www.sccgov.org/sites/ covid19/Pages/press-release-06-12-2020-cases-at-construction-sites.aspx.

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• Provide hand washing stations throughout the construction site.

Testing Procedures:
• The temperature screening being used are noncontact devices. • Temperature readings will not be recorded.
• Personnel will be screened upon entering the testing
center and should only take 1-2 seconds per individual. • Hard hats, head coverings, sweat, dirt, sunscreen or
any other cosmetics must be removed on the forehead
before temperature screening.
• Anyone who refuses to submit to a temperature
screening or does not answer the health screening questions will be refused access to the Project Site.
• Screening will be performed at both entrances from
5:30 am to 7:30 am.; main gate [ZONE 1] and personnel gate [ZONE 2]
• After 7:30 am only the main gate entrance [ZONE 1]
will continue to be used for temperature testing for anybody gaining entry to the project site such as returning personnel, deliveries, and visitors.
• If the digital thermometer displays a temperature
reading above 100.0 degrees Fahrenheit, a second reading will be taken to verify an accurate reading.
• If the second reading confirms an elevated
temperature, DHS will instruct the individual that he/she will not be allowed to enter the Project Site. DHS will also instruct the individual to promptly notify his/her supervisor and his/her human resources (HR) representative and
provide them with a copy of Annex A.

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Planning
• Require the development of an Infectious Disease
Preparedness and Response Plan that will include basic
infection prevention measures (requiring the use of personal protection equipment), policies and procedures for prompt identification and isolation of sick individuals, social distancing (prohibiting gatherings of no more than 10
people including all-hands meetings and all-hands lunches) communication and training and workplace controls that
meet standards that may be promulgated by the Center for Disease Control, Occupational Safety and Health
Administration, Cal/OSHA, California Department of
Public Health or applicable local public health agencies.6 The United Brotherhood of Carpenters and Carpenters International Training Fund has developed COVID-19 Training and Certification to ensure that Carpenter union members and apprentices conduct safe work practices. The Agency should require that all construction workers undergo COVID-19 Training and Certification before being allowed to conduct construction activities at the Project Site.

Southwest Mountain States Carpenters has also developed a rigorous Infection Control Risk Assessment (“ICRA”) training program to ensure it delivers a workforce that understands how to identify and control infection risks by implementing protocols to protect themselves and all others during renovation and construction projects in healthcare environments.7

ICRA protocols are intended to contain pathogens, control airflow, and protect patients during the construction, maintenance and renovation of healthcare facilities. 6 See also The Center for Construction Research and Training, North America’s Building Trades Unions (April 27 2020) NABTU and CPWR COVIC-19 Standards for U.S Constructions Sites, available at https://www.cpwr.com/sites/default/files/NABTU_ CPWR Standards COVID-19.pdf; Los Angeles County Department of Public Works (2020) Guidelines for Construction Sites During COVID-19 Pandemic, available at https://dpw.lacounty.gov/building-and-safety/docs/pw guidelines-construction-sites.pdf. 7 For details concerning Southwest Carpenters’s ICRA training program, see https://icrahealthcare.com/.

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ICRA protocols prevent cross contamination, minimizing the risk of secondary infections in patients at hospital facilities.

The City should require the Project to be built using a workforce trained in ICRA protocols.

III. THE PROJECT VIOLATES THE STATE PLANNING AND

ZONING LAW, THE SUBDIVSIION MAP ACT, THE COASTAL
ACT, LOCAL COASTAL PERMIT, AS WELL AS THE CITY’S
GENERAL PLAN AND MUNICIPAL CODE PROVISIONS.

Background Regarding the State Planning and Zoning Law.

The Planning and Zoning Law, Cal Government Code 65000 et seq, requires each California city and county to adopt a comprehensive, long-term general plan governing development. Napa Citizens for Honest Gov. v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 352, citing Gov. Code §§ 65030, 65300. The general plan sits at the top of the land use planning hierarchy (see DeVita v. County of Napa (1995) 9 Cal.4th 763, 773), and serves as a “constitution” or “charter” for all future development. Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540.

General plan consistency is “the linchpin of California’s land use and development laws; it is the principle which infused the concept of planned growth with the force of law.” See Debottari v. Norco City Council (1985) 171 Cal.App.3d 1204, 1213. State law requires that zoning ordinances and other land use decisions also must be consistent with the general plan. See Gov. Code § 65860, subd. (a)(2) (land uses authorized by zoning ordinance must be “compatible with the objectives, policies, general land uses, and programs specified in the [general] plan.”); see also Neighborhood Action Group v.

County of Calaveras (1984) 156 Cal.App.3d 1176, 1184.

State law requires that all subordinate land use decisions, including conditional use permits, be consistent with the general plan. See Gov. Code § 65860(a)(2); Neighborhood Action Group, 156 Cal.App.3d at 1184. A project cannot be found consistent with a general plan if it conflicts with a general plan policy that is “fundamental, mandatory, and clear,” regardless of whether it is consistent with other general plan policies. See Endangered Habitats League v. County of Orange (2005) 131 Cal.App.4th 777, 782-83; Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors (1998) 62 Cal.App.4th 1332, 1341-42. Moreover, even in the absence of such a direct conflict, City of Redondo Beach – 1100 N. Harbor Drive Project
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an ordinance or development project may not be approved if it interferes with or frustrates the general plan’s policies and objectives. See Napa Citizens, 91 Cal.App.4th at 378-79; see also Lesher, 52 Cal.3d at 544 (zoning ordinance restricting development conflicted with growth-oriented policies of general plan).

Moreover, general plan consistency is required under the Subdivision Map Act, Govt.

Code section 66473.5 and the applicable municipal regulations for issuing tentative tract maps. The preliminary application here mentions that it requires subdivision map approvals as well.

Yet, the Project is not a permitted use at the proposed Project site because the site is zoned under the P-GP generating plant zoning district. This means parks, parkettes, open space, recreational facilities, beaches, and coastal bluffs are allowed as a matter of right and public buildings and public utility facilities may be allowed under a conditional use permit. No other use is allowed at the site. The proposed Project here is a mixed-use development that will be comprised of 3,115,00 square feet of residential, hotel, office, and food/retail space. See Exhibit D. Thus, the mixed use development proposed here does not comport with such land use designation.

Furthermore, the City’s General Plan land use designation for the Project site is “Public and Institutional.” The Public and Institutional designation consists of “lands that are owned by public agencies, special use districts, and public utilities.” Redondo Beach General Plan, page 2-88. As the General Plan makes clear, “this designation encompasses a range of different public and quasi-public uses…[that] share a common thread in that these uses do not fit well under the typical standards for residential, commercial, or industrial uses.” Id. Because this Project is comprised of a mixed-use development described above, it is inconsistent with the General Plan’s land use designation.

In addition, Redondo Beach Municipal Code Section 10-5.2218(c)(1) and (d)(1) requires the proposed development to conform to the Certified Local Coastal Program. The Local Coastal Program designates this Project site as “Generating Plant,” which the mixed-use project here is not consistent with.

Because the proposed Project does not comport with the City’s zoning and general plan land use designations as well as the Local Coastal Program land use category, the application must be rendered incomplete and the Project should not be approved in light of its violation of the State Zoning and Planning Law, the City of Redondo City of Redondo Beach – 1100 N. Harbor Drive Project
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Beach’s Municipal Code, General Plan, Subdivision Map Act, and Coastal Plan (and Local Coastal Permit).

IV. THE PROJECT IS NOT SUBJECT TO THE HOUSING
ACCOUNTABILITY ACT AND BUILDER’S REMEDY.

A. Background on the Housing Accountability Act and Builder’s Remedy.

Albeit incorrectly presented as a means to bypass city’s zoning regulations and general plan policies, the California Housing Accountability Act (“HAA”), Government Code Section 65589.5, provides the “builder’s remedy,” which simply allows development proponents of affordable housing projects to lock in their project “voted” approvals and project entitlements where the project is otherwise consistent with the applicable zoning and general plan designation that existed at the time the preliminary application was – or was deemed – complete, unless it makes specific findings as to the “specific, adverse impacts”.8
Thus, according to California Government Code section 65589.5(j):
“(j) (1) When a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the application was deemed complete, but the local agency proposes to disapprove the project or to impose a condition that the project be developed at a lower density, the local agency shall base its decision regarding the proposed housing development project upon written findings supported by a preponderance of the evidence on the record that both of the following conditions exist:
(A) The housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density. As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.
8 Cal. Gov. Code § 65589.5
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(B) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density.” (Emph. added.)
This is also in line with California Government Code section 65589.5(d), providing:
local agency shall not disapprove a housing development project, . . . for very low, low-, or moderate-income households, or an emergency shelter, or condition of approval in a manner that renders the housing development project infeasible for development for the use of very low, low-, or moderate-income households, or an emergency shelter, including through the use of design review standards,” unless it makes certain written findings as to only “one” ground.

HAA defines the term “disapprove” under Govt. Code section 65589.5(j)(6) narrowly to mean either when an agency “votes on a proposed housing development project application” or fails to meet the timing requirements to determine that the application is complete.

Critically, the written findings required for the City to disapprove a project must be made only “by preponderance” of evidence (i.e., more likely than not).

Per California Government Code section 65589.5(d)(1)-(5), following are exceptions that would render the builder’s remedy inapplicable, if the agency “makes written findings, based upon a preponderance of the evidence in the record, as to one of the following” (all emphasis added):
(1) The city has a substantially compliant housing element and has “met or exceeded” its share of regional housing need for the types of housing the project would provide. Cal. Gov. Code section 65589.5(d)(1).
(2) The project would have “a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderateincome households or rendering the development of the City of Redondo Beach – 1100 N. Harbor Drive Project
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emergency shelter financially infeasible.” Cal. Gov. Code section 65589.5(d)(2).
(3) The project’s “denial . . . or imposition of conditions is required in order to comply with specific state or federal law, and there is no feasible method to comply without rendering the development unaffordable . . . or rendering the development of the emergency shelter financially infeasible.” Cal. Gov. Code section 65589.5(d)(3).
(4) The project site is zoned for agriculture or resource preservation or lacks adequate water or wastewater facilities to serve the project. Cal. Gov. Code section 65589.5(d)(4).
(5) The project is inconsistent with the city’s zoning and land-use designation of its general plan (as of the date the application was deemed complete), and the city “has adopted a revised housing element in accordance with Section 65588 that is in substantial compliance with this article.” Cal. Gov. Code section 65589.5(d)(5).

Also, critically, HAA does not relieve the agency from the duty to comply with the air quality congestion requirements, Coastal Act, or CEQA:
“(e) Nothing in this section shall be construed to relieve the local agency from complying with the congestion management program required by Chapter 2.6 (commencing with Section 65088) of Division 1 of Title 7 or the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code). Neither shall anything in this section be construed to relieve the local agency from making one or more of the findings required pursuant to Section 21081 of the Public Resources Code or otherwise complying with the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).” Govt. Code § 65589.5(e). (Emph. added.)
Similarly, HAA does not prohibit an agency from disapproving the project that is inconsistent with the allowable density on the site or applicable objective zoning regulations:
“(f) (1) Except as provided in subdivision (o), nothing in this section shall be construed to prohibit a local agency from requiring the housing City of Redondo Beach – 1100 N. Harbor Drive Project
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development project to comply with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the jurisdiction’s share of the regional housing need pursuant to Section 65584. However, the development standards, conditions, and policies shall be applied to facilitate and accommodate development at the density permitted on the site and proposed by the development.
(2) Except as provided in subdivision (o), nothing in this section shall be construed to prohibit a local agency from requiring an emergency shelter project to comply with objective, quantifiable, written development standards, conditions, and policies that are consistent with paragraph (4) of subdivision (a) of Section 65583 and appropriate to, and consistent with, meeting the jurisdiction’s need for emergency shelter, as identified pursuant to paragraph (7) of subdivision (a) of Section 65583. However, the development standards, conditions, and policies shall be applied by the local agency to facilitate and accommodate the development of the emergency shelter project.
(3) Except as provided in subdivision (o), nothing in this section shall be construed to prohibit a local agency from imposing fees and other exactions otherwise authorized by law that are essential to provide necessary public services and facilities to the housing development project or emergency shelter.
(4) For purposes of this section, a housing development project or emergency shelter shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project or emergency shelter is consistent, compliant, or in conformity.” Govt. Code § 65589.5(f). (Emph. added.)
Finally, Govt. Code § 65598.5(o) provides additional exceptions and requirements to qualify for HAA protections, such as providing all the required information, and reaffirms that HAA entitlements apply only to projects that otherwise conform to the ordinances, policies, and standards adopted and in effect at the time of submitting the preliminary application and that HAA does not override CEQA:

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(1) Subject to paragraphs (2), (6), and (7), and subdivision (d) of Section 65941.1, a housing development project shall be subject only to the ordinances, policies, and standards adopted and in effect when a preliminary application including all of the information required by subdivision (a) of Section 65941.1 was submitted.
(2) Paragraph (1) shall not prohibit a housing development project from being subject to ordinances, policies, and standards adopted after the preliminary application was submitted pursuant to Section 65941.1 in the following circumstances:
(A) In the case of a fee, charge, or other monetary exaction, to an increase resulting from an automatic annual adjustment based on an independently published cost index that is referenced in the ordinance or resolution establishing the fee or other monetary exaction.
(B) A preponderance of the evidence in the record establishes that subjecting the housing development project to an ordinance, policy, or standard beyond those in effect when a preliminary application was submitted is necessary to mitigate or avoid a specific, adverse impact upon the public health or safety, as defined in subparagraph (A) of paragraph (1) of subdivision (j), and there is no feasible alternative method to satisfactorily mitigate or avoid the adverse impact.
(C) Subjecting the housing development project to an ordinance, policy, standard, or any other measure, beyond those in effect when a preliminary application was submitted is necessary to avoid or substantially lessen an impact of the project under the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).
(3) This subdivision does not prevent a local agency from subjecting the additional units or square footage of construction that result from project revisions occurring after a preliminary application is submitted pursuant to Section 65941.1 to the ordinances, policies, and standards adopted and in effect when the preliminary application was submitted.

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(4) For purposes of this subdivision, “ordinances, policies, and standards” includes general plan, community plan, specific plan, zoning, design review standards and criteria, subdivision standards and criteria, and any other rules, regulations, requirements, and policies of a local agency, as defined in Section 66000, including those relating to development impact fees, capacity or connection fees or charges, permit or processing fees, and other exactions.
(5) This subdivision shall not be construed in a manner that would lessen the restrictions imposed on a local agency, or lessen the protections afforded to a housing development project, that are established by any other law, including any other part of this section.
(6) This subdivision shall not restrict the authority of a public agency or local agency to require mitigation measures to lessen the impacts of a housing development project under the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).” (Emph. added.)
Although the Project Applicant indeed asserts in its SB 330 Preliminary Application that its Project has vested entitlements or that none of the exceptions to the builder’s remedy apply to the Site or Project, the Applicant fails to provide any factual support for its arguments.

First, as required by Govt. Code § 65589.5(o)(1), there is no evidence that the Applicant had submitted all the required information under Govt. Code § 65941.1(a) – also referred to as SB 8 – which provides:
“(a) An applicant for a housing development project, as defined in paragraph (2) of subdivision (h) of Section 65589.5, shall be deemed to have submitted a preliminary application upon providing all of the following information about the proposed project to the city, county, or city and county from which approval for the project is being sought and upon payment of the permit processing fee: ….” (Emph. added.) SB 8 lists numerous items, including but not limited to the hazards and various conditions on the Project site, specific unit count, density bonus, incentives, etc. (Id.) City of Redondo Beach – 1100 N. Harbor Drive Project
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Second, SB 8 provides that the preliminary application may not be relied upon if the Project undergoes a 20% “change” in either its unit count or increase in the building area:
“(c) After submittal of all of the information required by subdivision (a), if the development proponent revises the project such that the number of residential units or square footage of construction changes by 20 percent or more, exclusive of any increase resulting from the receipt of a density bonus, incentive, concession, waiver, or similar provision, the housing development project shall not be deemed to have submitted a preliminary application that satisfies this section until the development proponent resubmits the information required by subdivision (a) so that it reflects the revisions. For purposes of this subdivision, “square footage of construction” means the building area, as defined by the California Building Standards Code (Title 24 of the California Code of Regulations).” Govt. Code § 65941.1(c), emph. added.

Here, there is evidence that, since the preliminary application, the Project has changed in both its unit count (decreased units) and also in square footage. The Applicant’s explanation that the 20% change must be only an “increase” is not supported by the language of SB 8, which simply mentions about a “change[]”. It is also evident that the change was undertaken by the Applicant solely to reduce the Project to 200 units (reducing the number of affordable housing as well) – just to evade CEQA compliance and to qualify for the CEQA exemption. The Applicant’s decrease of housing to dispose of CEQA and yet its insistence that HAA must protect its allegedly vested rights are two mutually inconsistent positions since HAA’s central purpose is to meet the housing shortage in California and it does not seek to avoid CEQA.

Furthermore, for purposes of California Government Code section 65589.5, an application is “deemed complete” when the applicant has submitted a preliminary application pursuant to Code section 65941.1, or, if a preliminary application has not been submitted, they have submitted a complete application pursuant to section 65943. Cal. Gov. Code section 65589.5(h)(5). Neither does the Applicant state with any specificity why none of the exceptions under HAA apply.

In this case, because the Project Applicant submitted a preliminary application, it must have been complete and must have also met each of the requirements of California City of Redondo Beach – 1100 N. Harbor Drive Project
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Government Code Section 65941.1 to qualify for a builder’s remedy it asserts. It fails to do so, as detailed below.

1. The City of Redondo Beach’s Housing Element Was Updated and in Compliance at All Relevant Times.

Government Code Section 65589.5 only provides the builder’s remedy for development proponents of affordable housing projects from a city’s zoning code and general plan that are out of compliance with the Housing Element Law.

The Project Applicant submitted a builder’s remedy application on August 15, 2022 under the erroneous belief that the City did not update its Housing Element.

However, the City adopted an updated Housing Element on July 5, 2022 in accordance with the procedures of state law.

As the City set forth in its letter of determination for the Project Applicant’s incomplete application, the California Department of Housing and Community Development affirmed in a letter dated September 1, 2022, that the City’s Housing Element is in full compliance with state law. As the letter also sets forth, the City adopted its housing element prior to the Applicant’s August 15, 2022 submittal of the preliminary application for the proposed project. As a result, the Builder’s Remedy is inapplicable here.

2. The Preliminary Application Was Invalid Because It Failed to Meet the Requirements of California Government Code Section 65941.1(a)(1).

Local governments must create a checklist and application form for housing development project applicants to use in submitting preliminary applications pursuant to California Government Code section 65941.1. Section 65941.1 sets forth a number of items that each preliminary application form must include. Among these requirements is “[t]he specific location, including parcel numbers, a legal description, and site address, if applicable.” Cal. Gov. Code section 65941.1(a)(1).

Even if the builder’s remedy was applicable here, the Preliminary Application filed with the City does not comport with the requirements of Government Code section 65941.1 because the application filed by the Project Applicant states that it attached a legal description to the application which included lot, block, and/or tract information.

The application states “Please see Assessor Map” in the legal description section, but the application failed to include any attachments. See Exhibit D.

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Further, as noted by the City’s letter of incomplete application, the Applicant failed to attach any required documents and instead provided a dropbox link, from which the Applicant deleted documents. Therefore, the Preliminary Application failed to meet the required standards, including under subsection (a)(1) of California Government Code section 65941.1 and is therefore without legal effect. As such, the builder’s remedy rights did not vest, and the City is not bound by it.

3. Preliminary Application Was Invalid Because It Failed to Meet the Requirements of California Government Code Section 65941.1(a)(17).

As stated above, California Government Code Section 65941.1 sets forth a number of items that each preliminary application form must include. Among these requirements is “[t]he location of any recorded public easement, such as easements for storm drains, water lines, and other public rights of way.” Cal. Gov. Code section 65941.1(a)(17).

The Preliminary Application filed by the Project Applicant stated that the Project site contains recorded public easements, such as easements for storm drains, water lines, and other public rights of way. Instead of describing the location of such easement(s), the application simply reads: “Please refer to the attached survey.” However, no such survey was attached. Because the Preliminary Application failed to describe such location, it failed to meet subsection (a)(17) of California Government Code section 65941.1 and is therefore incomplete.

4. The Project Does Not Comport with California Coastal Act Requirements.

An applicant for a development subject the Housing Accountability Act must still comply with the California Coastal Act. Government Code Section 65589.5 reads:
“Nothing in this section shall be construed to relieve the local agency from complying with the … the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code).” This includes ensuring compliance with the City of Redondo Beach’s Certified Local Coastal Program and Implementing Ordinance.

As detailed in the City’s letter of incomplete application (Exhibit E here, which we incorporate by reference in full), the proposed development here is not a permitted use under the Local Coastal Plan. The project site is located in the “Public and Institutional” land use designation of the City’s General Plan and is zoned under the “P-GP” generating plant zoning district. The Local Coastal Program more specifically categorizes the land use as “Generating Plant”. As the Applicant acknowledged in its City of Redondo Beach – 1100 N. Harbor Drive Project
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application and requested permits, residential and commercial uses are not expressly permitted or conditionally permitted uses at the Project site.

Yet, the Project proposes a massive commercial and residential project, consisting of:
- Residential: 2,290 dwelling units (2,340,000 sf.) of which only 458 will be affordable for low income, as defined under Govt. Code 65589.5(h)(3); and - Non-Residential: 3,115,000 sf.
o Hotel of 150,000 sf.;
o Office of 475,000 sf.;
o Food Retail – 150,000 sf.
- TOTAL: 3,115,000 sf.
(Exhibit D, p. 4.)
In addition, the affordable units’ count or nature is unclear, as it indicates that those would be as defined under Govt. Code 65589.5(h)(3), which indeed states:
(3) “Housing for very low, low-, or moderate-income households” means that either (A) at least 20 percent of the total units shall be sold or rented to lower income households, as defined in Section 50079.5 of the Health and Safety Code, or (B) 100 percent of the units shall be sold or rented to persons and families of moderate income as defined in Section 50093 of the Health and Safety Code, or persons and families of middle income, as defined in Section 65008 of this code. Housing units targeted for lower income households shall be made available at a monthly housing cost that does not exceed 30 percent of 60 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the lower income eligibility limits are based. Housing units targeted for persons and families of moderate income shall be made available at a monthly housing cost that does not exceed 30 percent of 100 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the moderate-income eligibility limits are based.
(Ibid., emph. added.)
The fact that the Project’s affordability component is unspecified and unclear also makes the Project inconsistent with the Coastal Act’s provision of public access.

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The Project is inconsistent with the public access provisions of the Coastal Act, which require low-cost places for visitors to stay overnight. Affordable housing or ownership is irrelevant under the Coastal Act and density bonus law does not apply to or trump the Coastal Commission determinations. Govt. Code § 65915(m), allowing density bonus, provides:
“(m) This section does not supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code). Any density bonus, concessions, incentives, waivers or reductions of development standards, and parking ratios to which the applicant is entitled under this section shall be permitted in a manner that is consistent with this section and Division 20 (commencing with Section 30000) of the Public Resources Code” Thus, even if the City can’t deny an affordable housing project – which is not the case here - the Project must be denied for its inconsistencies with the Coastal Act.

The Project here violates the Coastal Act also because out of the proposed massive plan of thousands of units, hotel, food and other spaces, only 458 units will be affordable and those will be affordable only in the residential component, i.e., not to the general public but only to the few residents of the Project site. There is no information whether the 150,000 sf. hotel space will have any affordability component.

Thus, without those specifics, the Project fails to provide the public access required under the Coastal Act. As stated in a staff report for a similar project:

Historically, the Commission has in past actions, loosely considered low cost to be less than $100 per night. In order to protect the existing lower cost facility the City and OC Dana Point Harbor agreed in the LUP to stipulate that the existing hotel, which has room rates of about $89.00/night, is low cost, and that any renovated, replaced or new additional units would also be low cost. (12/29/2010 CCC Dana Point Staff Report, p. 14. [Emph. added.]) 9 The issue of public access is critical for the Coastal Commission and the Coastal Act, as also evidenced by the Coastal Commission’s recent reasoning and findings related 9 See, https://documents.coastal.ca.gov/reports/2011/1/W8b-1-2011.pdf City of Redondo Beach – 1100 N. Harbor Drive Project
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to a Dana Point project.10 There, as relevant to this case, the Coastal Commission found:
“The second factor is the extent and scope of the development as approved or denied by the local government. The City approved a new 47,988 sq. ft. sixlevel hotel on two vacant lots, in a seemingly hazardous area, over which expansive coastal views from public vantage points are currently available.

While the scope of the development isn’t as large as other commercial developments in the area, the project could have significant impacts to coastal resources if not fully consistent with the certified LCP. Thus, the extent and scope of the project, which does not appear to be consistent with the certified LCP, weighs in favor of a finding of substantial issue.

The third factor is the significance of the coastal resources affected by the decision. Public access to the coast is a highly important coastal resource that requires enhancement and strict protection. The availability of low cost overnight accommodations is an integral component of public access as is the protection of public coastal views. As such, the public access policies of the Coastal Act, including the provision to provide low cost overnight accommodations and the protection of public coastal views, have been incorporated into the City’s certified LCP as detailed above. In addition, coastal bluffs and water quality are also important coastal resources that are explicitly protected by the City’s certified LCP. Thus, it is important to ensure that blufftop development is appropriately sited and designed to minimize coastal hazards and that adequate water quality measures are incorporated in the City’s approval throughout the construction the proposed development as well as the life of the project. Given the significance of the coastal resources affected by the proposed development, this factor also weighs in favor of a finding of substantial issue.
10 See, Coastal Commission’s decision on the Dana Point Project in 2019 at https://documents.coastal.ca.gov/reports/2019/12/Th14b/Th14b-12-2019-report.pdf ; see also Coastal Commission’s similar decision on a Project in Venice at https://documents.coastal.ca.gov/reports/2021/11/W16c/W16c-11-2021-report.pdf ; Coastal Commission’s finding of inconsistency with Huntington Beach’s project https://documents.coastal.ca.gov/reports/2022/5/Th9a10a/Th9a10a-5-2022- staffreport.pdf
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The fourth factor is the precedential value of the local government’s decision for future interpretations of the City’s certified LCP. As discussed, the City-approved project is not consistent with the relevant policies of the City’s certified LCP. In fact, the City’s record indicates the City does not agree that protection and provision of lower cost accommodations is required under its LCP even though Section 30213 of the Coastal Act is incorporated into the LCP. Thus, approving the project as proposed and conditioned by the City could set a precedent for future development in Dana Point and other certified areas throughout the state that is not consistent with certified LCPs.

This factor supports a finding of substantial issue. The final factor is whether the appeal raises local issues, or those of regional or statewide significance.

The issues raised in the appeal concern the protection of public access, including the provision of low cost overnight accommodations and the protection of public coastal views, as well as issues related to geologic hazards and water quality. The issues raised are not unique to Dana Point and have been raised in many CDP applications and appeals throughout the state and are of substantial public interest. Therefore, the appeals raise issues of statewide significance. These factors support a finding of substantial issue.

In conclusion, the Commission finds that the appeals do raise substantial issues with respect to the grounds on which they were filed and City-approved project’s consistency with the City’s certified LCP.” (Coastal Commission, November 27, 2019, Staff Report and Findings on Dana Point Project Approval, p. 14.)
The Court’s description of the fundamental goals of the Coastal Act is instructive and further confirms the Project’s mass and scale here and its failure to ensure public access violate the Coastal Act:

The Coastal Act is a “ ‘comprehensive scheme to govern land use planning for the entire coastal zone of California.’ ” (Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 793, 149 Cal.Rptr.3d 383, 288 P.3d 717; Yost v. Thomas (1984) 36 Cal.3d 561, 565, 205 Cal.Rptr. 801, 685 P.2d 1152.) It is “beyond dispute that California has a legitimate interest in protecting and maintaining its beaches as recreational resources.” (Ocean Harbor House Homeowners Association v. California Coastal Commission (2008) 163 Cal.App.4th 215, 231, 77 Cal.Rptr.3d 432.) Accordingly, a core principle of City of Redondo Beach – 1100 N. Harbor Drive Project
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the Act is to maximize public access to and along the coast as well as recreational opportunities in the coastal zone. (§ 30001.5, subd. (c); Yost, at pp. 565-566, 205 Cal.Rptr. 801, 685 P.2d 1152; City of Dana Point v.

California Coastal Commission, supra, 217 Cal.App.4th at p. 185, 158 Cal.Rptr.3d 409; Ocean Harbor House, at p. 231, 77 Cal.Rptr.3d 432; LT-WR, L.L.C. v.

California Coastal Commission (2007) 152 Cal.App.4th 770, 806, 60 Cal.Rptr.3d 417.) The Legislature further “sought to ‘[a]ssure orderly, balanced utilization and conservation of coastal zone resources taking into account the social and economic needs of the people of the state.’ ” (Carstens v.

California Coastal Commission (1986) 182 Cal.App.3d 277, 290, 227 Cal.Rptr. 135, quoting § 30001.5, subd. (b).) Underlying the Act's goals are the Legislature's findings that “ ‘ “the California coastal zone is a distinct and valuable natural resource of vital and enduring interest to all the people”; that “the permanent protection of the state's natural and scenic resources is a paramount concern”; that “it is necessary to protect the ecological balance of the coastal zone”; and that “existing developed uses, and future developments that are carefully planned and developed consistent with the policies of this division, are essential to the economic and social well-being of the people of this state ....” ’ ” (Pacific Palisades Bowl Mobile Estates, at p. 793, 149 Cal.Rptr.3d 383, 288 P.3d 717.) The Commission is to resolve conflicts in the Act's policies “in a manner which on balance is the most protective of significant coastal resources.” (§ 30007.5; Carstens, at p. 290, 227 Cal.Rptr. 135.)
(San Diego Unified Port Dist. v. California Coastal Com. (2018) 27 Cal.App.5th 1111, 1129– 1130, emph. added.)
Echoing the Coastal Act requirements, goals and concerns, CEQA is strict about the EIR’s role in identifying and protecting unique natural resources as the coastal and scenic resources here: “Special emphasis should be placed on environmental resources that are rare or unique to that region and would be affected by the project. The EIR must ... permit the significant effects of the project to be considered in the full environmental context.” (Guidelines §15125(c), italics added; League to Save Lake Tahoe Mountain etc. v. County of Placer (2022) 75 Cal.App.5th 63, 92 [same].)
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As stated above, the Local Coastal Program designates this Project site as “Generating Plant.” A mixed-use development project, such as the one proposed here, is not consistent with such land use category.

For all the reasons mentioned here, including but not limited to the Project’s inconsistency with the General Plan and the Project’s failure to provide adequate public access and mitigate impacts on the scenic vista and coastal resources, the Project is inconsistent with the Local Coastal Program, General Plan, Coastal Act, and is ineligible for a Coastal Permit. The Project also violates CEQA’s good faith disclosure mandates in not disclosing the above-noted inconsistencies and requirements.

As a result, on these grounds too, the application submitted for the proposed Project is not subject to the Housing Accountability Act, Government Code Section 65589.5, since the Builder’s Remedy provision under the Govt. Code does not trump glaring inconsistencies under the Coastal Act or Local Coastal Program, as here. See, Govt.

Code § 65589.5(e).

V. BACKGROUND ON THE CALIFORNIA DEPARTMENT OF

HOUSING AND COMMUNITY DEVELOPMENT GUIDELINES

FOR STREAMLINED MINISTERIAL APPROVAL AND

AFFORDABLE HOUSING
The California Department of Housing and Community Development sets forth various guidelines (“HCD Guidelines”) for a streamlined ministerial approval process pursuant to California Government Code section 65913.4.11 Included in the HCD Guidelines are development requirements, including affordability provisions, that should be met to apply for streamlining. For example, Section 402(a) of the HCD Guidelines states that “[a] development shall be subject to a requirement mandating a minimum percentage of units be affordable to households making at or below 80 percent Area Median Income (AMI), . . .” based on various categories where a locality that the Department has determined is subject to the streamlined ministerial approval 11 California Department of Housing and Community Development, Updated Streamlined Ministerial Approval Process Government Code Section 65913.4 Guidelines, available at https://www.hcd.ca.gov/policy-research/docs/sb-35-guidelines-update-final.pdf (accessed on Jan. 19, 2023).

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process, the development must dedicate a certain percentage of units to affordable housing.12
Furthermore, section 402(b) of the HCD Guidelines provides that a “covenant or restriction shall be recorded against the development dedicating the minimum percentage of units to housing affordable to households making at or below 80 percent of the [Area Median Income (“AMI”)] pursuant to Section 402 (a)(1-3).”13 This recorded covenant or restriction must remain an encumbrance on the development for at least forty-five (45) years and the development proponent must record a covenant or restriction that dedicates the required minimum percentage of units to below market housing before issuing the first building permit.14 Furthermore, Section 402(c) states that “[t]he percentage of units affordable to households making at or below 80 percent of the AMI . . . is calculated based on the total number of units in the development exclusive of additional units provided by a density bonus.”15 Affordability to household at or below 80 percent is calculated pursuant to Health and 12 Id. at section 402(a).
13 Id. at section 402(b).
14 Id. at section 402(b)(1)-(2). 15 Id. at section 402(c).

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Safety Code (“HSC”) Section 50052.5 for owner-occupied units, 16 and per HSC Section 5005317 for rental units.18
Given that the Project Applicant here filed an SB 330 Preliminary Application pursuant to the Housing Accountability Act, California Government Code section 65913.4 applies and the Project should adhere to the affordability guidelines set forth above. As the City of Redondo Beach is well aware, affordable housing is crucial in the City and the City must adhere to these affordability guidelines.

Yet, as the Applicant’s preliminary application shows, although the Applicant appears to have set aside 458 units, it also put an asterisk on that number and, instead of specifying the affordability levels, its asterisk explains that the affordable units will be as defined under the Govt. Code section 65589.5(h)(3), which provides that “[h]ousing units targeted for lower income households shall be made available at a monthly housing cost that does not exceed 30 percent of 60 percent of area median income…” As such, the affordable units provided by the Applicant, if at all, will not meet the HCD requirements that the units be affordable to households making at or below 80 percent Area Median Income (AMI).
16 Health & Safety Code § 50052.5 (stating that for owner-occupied housing receiving assistance after January 1, 1991, “affordable housing cost” cannot exceed the following: (1) for extremely low income households, the product of 30% times 30% of the area median income adjusted for family size proportionate for the unit; (2) for very low income households, the product of 30% times 50% of the area median income adjusted for family size appropriate for the unit; (3) for moderate-income households, affordable housing cost cannot be less than 28% gross household income and no more than 35% times 110% of area median income adjusted for family size appropriate for the unit. Further, for moderateincome households whose gross income exceeds 110% of area median income adjusted for family size, it is optional for any state or local funding agency to require that affordable housing costs not exceed 35% of gross household income). 17 Health & Safety Code § 50053 (stating that for rental housing development receiving assistance after January 1, 1991, and a condition of that assistance complies with this section, “affordable rent” is not to exceed: (1) for acutely low income households (per Section 50063.5, 30% times 15% of the area median income adjusted for family size appropriate for the unit; (2) for extremely low income households, 30% times 30% of the area median income adjusted for family size appropriate for the unit; (3) for very low income households, 30% times 50% of area median income adjusted for family size; (4) for lower income households whose gross income is more thana the maximum income for very low income households, 30% times 60% of area median income adjusted for family size; and (5) for moderate-income households, 30% times 110% the area median income adjusted for family size.)
18 California Department of Housing and Community Development, supra, at section 402(g).

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On this ground too, the City should deny the Project as it fails the affordability requirement for streamlining.

VI. AN ENVIRONMENTAL IMPACT REPORT SHOULD BE
PREPARED FOR THE PROJECT.

A. The Project is Subject to the California Environmental Quality Act.

The California Environmental Quality Act is a California statute designed to inform decision-makers and the public about the potential significant environmental effects of a project. 14 California Code of Regulations (“CEQA Guidelines”), § 15002, subd. (a)(1).19 At its core, its purpose is to “inform the public and its responsible officials of the environmental consequences of their decisions before they are made.” Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564.

1. Background Concerning Environmental Impact Reports
CEQA directs public agencies to avoid or reduce environmental damage, when possible, by requiring alternatives or mitigation measures. CEQA Guidelines, § 15002, subds. (a)(2)-(3); see also Berkeley Keep Jets Over the Bay Committee v. Board of Port Comes (2001) 91 Cal.App.4th 1344, 1354; Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553; Laurel Heights Improvement Assn., 47 Cal.3d at p. 400. The EIR serves to provide public agencies and the public in general with information about the effect that a proposed project is likely to have on the environment and to “identify ways that environmental damage can be avoided or significantly reduced.” CEQA Guidelines, § 15002, subd. (a)(2). If the project has a significant effect on the environment, the agency may approve the project only upon finding that it has “eliminated or substantially lessened all significant effects on the environment where feasible” and that any unavoidable significant effects on the environment are “acceptable due to overriding concerns” specified in Public Resources Code section 21081. See CEQA Guidelines, § 15092, subds. (b)(2)(A)-(B).

While the courts review an EIR using an ‘abuse of discretion’ standard, the reviewing court is not to uncritically rely on every study or analysis presented by a project 19 The CEQA Guidelines, codified in Title 14 of the California Code of Regulations, section 15000 et seq., are regulatory guidelines promulgated by the state Natural Resources Agency for the implementation of CEQA. Cal. Pub. Res. Code, § 21083. The CEQA Guidelines are given “great weight in interpreting CEQA except when . . . clearly unauthorized or erroneous.” Center for Biological Diversity v. Dept. of Fish & Wildlife (2015) 62 Cal.4th 204, 217.

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proponent in support of its position. Berkeley Jets, 91 Cal.App.4th at p. 1355 (quoting Laurel Heights Improvement Assn., 47 Cal.3d at pp. 391, 409 fn. 12) (internal quotations omitted). A clearly inadequate or unsupported study is entitled to no judicial deference. Id. Drawing this line and determining whether the EIR complies with CEQA’s information disclosure requirements presents a question of law subject to independent review by the courts. Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 515; Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 102, 131. As the court stated in Berkeley Jets, prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decision-making and informed public participation, thereby thwarting the statutory goals of the EIR process. 91 Cal.App.4th at p. 1355 (internal quotations omitted).

The preparation and circulation of an EIR is more than a set of technical hurdles for agencies and developers to overcome. Communities for a Better Environment v. Richmond (2010) 184 Cal.App.4th 70, 80 (quoting Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 449-450). The EIR’s function is to ensure that government officials who decide to build or approve a project do so with a full understanding of the environmental consequences and, equally important, that the public is assured those consequences have been considered. Id. For the EIR to serve these goals it must present information so that the foreseeable impacts of pursuing the project can be understood and weighed, and the public must be given an adequate opportunity to comment on that presentation before the decision to go forward is made. Id.

A strong presumption in favor of requiring preparation of an EIR is built into CEQA.

This presumption is reflected in what is known as the “fair argument” standard under which an EIR must be prepared whenever substantial evidence in the record supports a fair argument that a project may have a significant effect on the environment. Quail Botanical Gardens Found., Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602; Friends of “B” St. v. City of Hayward (1980) 106 Cal.3d 988, 1002.

The fair argument test stems from the statutory mandate that an EIR be prepared for any project that “may have a significant effect on the environment.” PRC, § 21151; see No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.App.3d 68, 75; accord Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th 877, 884. Under this test, if a proposed project is not exempt and may cause a significant effect on the environment, the lead agency must prepare an EIR. PRC, §§ 21100 (a), 21151; CEQA Guidelines, § 15064 (a)(1), (f)(1).

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An EIR may be dispensed with only if the lead agency finds no substantial evidence in the initial study or elsewhere in the record that the project may have a significant effect on the environment. Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768, 785. In such a situation, the agency must adopt a negative declaration. PRC, § 21080, subd. (c)(1); CEQA Guidelines, §§ 15063 (b)(2), 15064(f)(3).
“Significant effect upon the environment” is defined as “a substantial or potentially substantial adverse change in the environment.” PRC, § 21068; CEQA Guidelines, § 15382. A project may have a significant effect on the environment if there is a reasonable probability that it will result in a significant impact. No Oil, Inc., 13 Cal.3d at p. 83 fn. 16; see Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 309. If any aspect of the project may result in a significant impact on the environment, an EIR must be prepared even if the overall effect of the project is beneficial. CEQA Guidelines, § 15063(b)(1); see County Sanitation Dist. No. 2 v. County of Kern (2005) 127 Cal.App.4th 1544, 1580.

This standard sets a “low threshold” for preparation of an EIR. Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 207; Nelson v. County of Kern (2010) 190 Cal.App.4th 252; Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928; Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 580; Citizen Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 754; Sundstrom, 202 Cal.App.3d at p. 310. If substantial evidence in the record supports a fair argument that the project may have a significant environmental effect, the lead agency must prepare an EIR even if other substantial evidence before it indicates the project will have no significant effect. See Jensen, 23 Cal.App.5th at p. 886; Clews Land & Livestock v. City of San Diego (2017) 19 Cal.App.5th 161, 183; Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 150; Brentwood Assn. for No Drilling, Inc. v. City of Los Angeles (1982) 134 Cal.App.3d 491; Friends of “B” St., 106 Cal.App.3d 988; CEQA Guidelines, § 15064(f)(1).

2. Background Concerning Initial Studies, Negative Declarations and Mitigated Negative Declarations
CEQA and CEQA Guidelines are strict and unambiguous about when an MND may be used. A public agency must prepare an EIR whenever substantial evidence supports a “fair argument” that a proposed project “may have a significant effect on the environment.” Pub. Res. Code, §§ 21100, 21151; CEQA Guidelines, §§ 15002, City of Redondo Beach – 1100 N. Harbor Drive Project
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subds. (f)(1)-(2), 15063; No Oil, Inc., 13 Cal.3d at p. 75; Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 111-112.

Essentially, should a lead agency be presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect. CEQA Guidelines, §§ 15064, subds. (f)(1)-(2); see No Oil Inc., supra, 13 Cal.3d at p. 75 (internal citations and quotations omitted). Substantial evidence includes “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” CEQA Guidelines, § 15384(a).

The fair argument standard is a “low threshold” test for requiring the preparation of an EIR. No Oil Inc., supra, 13 Cal.3d at p. 84; County Sanitation Dist. No. 2 of Los Angeles County v. County of Kern (2005) 127 Cal.App.4th 1544, 1579. It “requires the preparation of an EIR where there is substantial evidence that any aspect of the project, either individually or cumulatively, may cause a significant effect on the environment, regardless of whether the overall effect of the project is adverse or beneficial[.]” County Sanitation, supra, 127 Cal.App.4th at p. 1580 (quoting CEQA Guidelines, § 15063(b)(1)). A lead agency may adopt an MND only if “there is no substantial evidence that the project will have a significant effect on the environment.” CEQA Guidelines, § 15074(b).

Evidence supporting a fair argument of a significant environmental impact triggers preparation of an EIR regardless of whether the record contains contrary evidence.

League for Protection of Oakland’s Architectural and Historical Resources v. City of Oakland (1997) 52 Cal.App.4th 896, 904-905. “Where the question is the sufficiency of the evidence to support a fair argument, deference to the agency’s determination is not appropriate[.]” County Sanitation, 127 Cal.App.4th at 1579 (quoting Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1317-1318).

Further, it is the duty of the lead agency, not the public, to conduct the proper environmental studies. “The agency should not be allowed to hide behind its own failure to gather relevant data.” Sundstrom, 202 Cal.App.3d at p. 311. “Deficiencies in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences.” Id; see also Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1382 (lack of study enlarges the scope of the fair argument which may be made based on the limited facts in the record).

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Thus, refusal to complete recommended studies lowers the already low threshold to establish a fair argument. The court may not exercise its independent judgment on the omitted material by determining whether the ultimate decision of the lead agency would have been affected had the law been followed. Environmental Protection Information Center v. Cal. Dept. of Forestry (2008) 44 Cal.4th 459, 486 (internal citations and quotations omitted). The remedy for this deficiency would be for the trial court to issue a writ of mandate. Id.

Both the review for failure to follow CEQA’s procedures and the fair argument test are questions of law, thus, the de novo standard of review applies. Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435. “Whether the agency’s record contains substantial evidence that would support a fair argument that the project may have a significant effect on the environment is treated as a question of law. Consolidated Irrigation Dist., 204 Cal.App.4th at p. 207; Kostka and Zischke, Practice Under the Environmental Quality Act (2017, 2d ed.) at § 6.76.

In an MND context, courts give no deference to the agency. Additionally, the agency or the court should not weigh expert testimony or decide on the credibility of such evidence—this is one of the EIR’s responsibilities. As stated in Pocket Protectors v. City of Sacramento:

Unlike the situation where an EIR has been prepared, neither the lead agency nor a court may “weigh” conflicting substantial evidence to determine whether an EIR must be prepared in the first instance.

Guidelines section 15064, subdivision (f)(1) provides in pertinent part: if a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect. Thus, as Claremont itself recognized, [c]onsideration is not to be given contrary evidence supporting the preparation of a negative declaration.
(2004) 124 Cal.App.4th 903, 935 (internal citations and quotations omitted).

In cases where it is not clear whether there is substantial evidence of significant environmental impacts, CEQA requires erring on the side of a “preference for resolving doubts in favor of environmental review.” Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 332 “The foremost principle under CEQA is that the City of Redondo Beach – 1100 N. Harbor Drive Project
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Legislature intended the act to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language. Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259.

B. The Project Requires an EIR Given Its Mass, Scale, and Location.

An EIR should be prepared for the Project as the proposed development involves massive demolition and construction. Specifically, the Project proposes to demolish most of the existing structures that are currently used for power generation with a gas fired plant on a 49-acre site. See Exhibit D, p. 2. It is reasonably foreseeable that the massive demolition of an industrial plant will have numerous impacts, including but not limited to hazards impacts on the environment. See, Exhibit F [March 10, 2021, Adam Redling's Article re “Demolition industry issues call to reduce power plant fatalities”].20
Among the Project’s hazards impacts are also those associated with the potential soil contamination due to the intensive historic industrial activity on site and the potential leaks and spills of hazardous materials which, while contained at the site now, may spread around upon grading, hauling, and further construction activities. Simply put, the Project here may and will exacerbate the existing soil and other conditions.

Hazards impacts are also reasonably foreseeable in case the power plant structures that are to be demolished contain asbestos and lead. It is unclear if the Project may reuse part of the existing structures or may reuse part of the demolition material for fill and asphalt purposes; if so; then that too, may pose further risks both to the construction workers, as well as the environment at large.

It is undisputed that both lead and asbestos are dangerous to people’s health. While intact asbestos by itself may not be hazardous, damaged or disturbed asbestos may release asbestos fibers and become a health hazard.21 Per Occupational Health and Safety Administration’s (“OSHA”) description:

What are the hazards of asbestos?
20 https://cdrecycler.com/news/power-plant-demolition-fatalities/ 21 See, https://www.cpsc.gov/safety-education/safety-guides/home/asbestos-home; see also, medical conditions associated with asbestos:
https://www.atsdr.cdc.gov/asbestos/health effects asbestos.html

City of Redondo Beach – 1100 N. Harbor Drive Project
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Asbestos is well recognized as a health hazard and its use is now highly regulated by both OSHA and EPA. Asbestos fibers associated with these health risks are too small to be seen with the naked eye. Breathing asbestos fibers can cause a buildup of scar-like tissue in the lungs called asbestosis and result in loss of lung function that often progresses to disability and death. Asbestos also causes cancer of the lung and other diseases such as mesothelioma of the pleura which is a fatal malignant tumor of the membrane lining the cavity of the lung or stomach. Epidemiologic evidence has increasingly shown that all asbestos fiber types, including the most commonly used form of asbestos, chrysotile, causes mesothelioma in humans.
(OSHA’s Definition of “Asbestos” on its Official Website.)22 Similarly, lead is dangerous to people and their families. Per OSHA’s report:

Lead has been poisoning workers for thousands of years. Lead can damage the central nervous system, cardiovascular system, reproductive system, hematological system, and kidneys. When absorbed into the body in high enough doses, lead can be toxic.

In addition, workers’ lead exposure can harm their children’s development. Short-term (acute) overexposure–as short as days--can cause acute encephalopathy, a condition affecting the brain that develops quickly into seizures, coma, and death from cardiorespiratory arrest.

Short-term occupational exposures of this type are highly unusual but not impossible. Extended, long-term (chronic) overexposure can result in severe damage to the central nervous system, particularly the brain. It can also damage the blood-forming, urinary, and reproductive systems. There is no sharp dividing line between rapidly developing acute effects of lead and chronic effects that take longer to develop.
(OSHA report, 2004 Lead in Construction, p. 3)23
OSHA also documents the adverse effects of lead on people’s reproductive health:

REPRODUCTIVE RISKS
22 See, https://www.osha.gov/asbestos 23 See, https://www.osha.gov/sites/default/files/publications/osha3142.pdf City of Redondo Beach – 1100 N. Harbor Drive Project
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Lead is toxic to both male and female reproductive systems. Lead can alter the structure of sperm cells and there is evidence of miscarriage and stillbirth in women exposed to lead or whose partners have been exposed.

Children born to parents who were exposed to excess lead levels are more likely to have birth defects, mental retardation, or behavioral disorders or to die during the first year of childhood.

Workers who desire medical advice about reproductive issues related to lead should contact qualified medical personnel to arrange for a job evaluation and medical followup--particularly if they are pregnant or actively seeking to have a child. Employers whose employees may be exposed to lead and who have been contacted by employees with concerns about reproductive issues must make medical examinations and consultations available.
(OSHA report, 2004 Lead in Construction, p. 4.)
The Project’s unmitigated impacts of lead and asbestos (and the disturbance of the soil of a potentially contaminated site, as discussed infra) may have significant impacts and broader consequences, including through polluting the wetlands, the groundwater and the surface waters next to the Project. As described by the report on the Federal Aviation Administration’s website:

Water resources are surface waters and groundwater that are important in providing drinking water and in supporting recreation, transportation and commerce, industry, agriculture, and aquatic ecosystems. Surface water, groundwater, floodplains, and wetlands do not function as separate and isolated components of the watershed, but rather as a single, integrated natural system. Disruption of any one part of this system can have consequences to the functioning of the entire system.

14.1. Wetlands
For regulatory purposes under the Clean Water Act (CWA), the term wetlands means areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Areas covered with water for City of Redondo Beach – 1100 N. Harbor Drive Project
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such a short time that there is no effect on moist-soil vegetation are not considered wetlands, nor are the waters of streams, reservoirs, and deep lakes. Wetlands provide many benefits to the human, biological, and hydrological environment, including habitat for fish and wildlife, water quality improvement, flood storage, and opportunities for recreation. (FAA Report/Publication, 2/2020, p. 14-2, emph. added.)24 CEQA Guidelines mandate: “Special emphasis should be placed on environmental resources that are rare or unique to that region and would be affected by the project. The EIR must ... permit the significant effects of the project to be considered in the full environmental context.” (Guidelines § 15125(c), italics added.)
The Project here fails this mandate, including in light of the hazards impacts noted above.

Moreover, the Project here proposes a massive construction - 3,115,000 square feet of residential, hotel, office, and food/retail space. Exhibit D, at p. 2. As such, it is reasonably foreseeable that the Project’s construction may have significant environmental impacts including, but not limited to, hazards and hazardous materials, noise, air quality, water quality, traffic, and greenhouse gas emissions, public services (police, fire, emergency), open space, biological resources, and safety impacts. These impacts are reasonably foreseeable at all phases of the Project implementation:
construction and operation.

The preliminary application also admits that the Project site contains recorded public easements but fails to note those and instead refers the reader to an “attached survey,” which, as noted above, was not actually attached and is not available. As such, the Project may also have significant impacts to the extent it encroaches or somehow affects the recorded public easements or public right of ways.

In addition, while the preliminary application notes that the Project site does not contain any historic or cultural resources, that is not the case since the proposed Project does indeed contain such resources and will indeed impact those. The City’s letter of determination of the Applicant’s incomplete application states that the 24 See also, various regulations to protect wetlands from potential adverse impacts at pp. 14- 2—5:
https://www.faa.gov/about/office org/headquarters offices/apl/environ policy gu idance/policy/faa nepa order/desk ref/media/14-water-resources.pdf City of Redondo Beach – 1100 N. Harbor Drive Project
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current property’s industrial architectural style and impact in the early economic growth of the City of Redondo Beach is historically significant. It reads:

Per The City of Redondo Beach Historic Context Statement (September 1995) the power plant ‘provided employment opportunities for men living within the Redondo Beach community. This in itself was important for the city's economic development. However, the presence of the Edison Company in Redondo Beach held additional significance. By the early 1920s, residential growth through out Southern California was dependent upon the availability of domestic electricity. Any number of residential subdivisions could be planned, but without proper electrical services development plans could not proceed beyond the planning stage. Edison's decisions of where to concentrate its funding for electrical expansion directly impacted a community's ability to achieve its future expansion and development aspirations. As a result, the presence and involvement of Edison in Redondo Beach was seen by the leaders of this community as vital to their ability to obtain a full growth potential and maintain a competitive edge over neighboring cities. It is little wonder that Redondo Beach was the first community in California to establish an "Edison Club." Through out the 1920s and well into the 1940s, this club served as one of the city's most active social organizations and viewed as an important link between the corporation and the community at large” (page 20, footnote 2).

There are also references in the Waterfront FEIR from 2016 under the Cultural Resources chapter that discuss the power plant. Similarly, before any power generation on this property (and European contact), this was a natural salt lake which served the Native American community. Future excavation could unearth artifacts from that era of the very early inhabitants.

See Exhibit E.

The Project proposes to demolish most of the existing power plant structures.

Public Resources Code section 21084.1 states:
[a] project that may cause a substantial adverse change in the significance of an historical resource is a project that may have a significant effect on the environment. For purposes of this section, an historical resource is a resource City of Redondo Beach – 1100 N. Harbor Drive Project
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listed in, or determined to be eligible for listing in, the California Register of Historical Resources …. The fact that a resource is not listed in, or determined to be eligible for listing in, the California Register of Historical Resources, not included in a local register of historical resources, or not deemed significant pursuant to criteria set forth in subdivision (g) of Section 5024.1 shall not preclude a lead agency from determining whether the resources may be an historical resources for purposes of this section.

CEQA Guidelines Section 15064.5(a)(4) further echoes that:
[t]he fact that a resource is not listed in, or determined to be eligible for listing in the California Register of Historical Resources, not included in a local register of historical resources (pursuant to section 5020.1(k) of the Public Resources Code), or identified in an historical resources survey (meeting the criteria in section 5024.1(g) of the Public Resources Code) does not preclude a lead agency from determining that the resource may be an historical resource as defined in Public Resources Code sections 5020.1(j) or 5024.1.

As such, pursuant to both PRC 21084.1 and CEQA Guidelines section 15064.5, the fact that a project is not listed, determined to be, or registered as a historical resource does not preclude an agency’s determination that the project is a historical resource.

The presence and proposed demolition of a building that may have a potential historical significance excepts the Project from any CEQA exemption that can be claimed pursuant to CEQA Guidelines section 15300.2(f). It also presents significant impacts that cannot allow an MND or any lower level CEQA review than an EIR.

And here, the City itself made a determination that the Project site with its power plant is a historic resource, which is subject to great deference.

Therefore, since the structure proposed for demolition may have historical significance, an Environmental Impact Report should be prepared for the Project to, inter alia, assess the historical significance of this structure and the environmental impact that the Project may have.

Last but not least, the Project may have cumulative impacts, along with other related projects in the area, and such impacts should be studied under CEQA.

In light of the above-noted issues, the Project requires an EIR to thoroughly study the Project’s potential individual and cumulative impacts of both demolition, City of Redondo Beach – 1100 N. Harbor Drive Project
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construction, and operation, and the builder’s remedy provisions do not trump CEQA’s mandate for an EIR. See, Govt. Code section 65589.5(e).

VII. CONCLUSION
For the aforementioned reasons, the Southwest Mountain States Carpenters request that the City find that the application filed for the Project is invalid and incomplete and further require an EIR for the Project to assess the Project’s environmental impacts, including those that are specified above.

Sincerely,
Armita Ariano
Attorneys for Southwest Mountain
States Regional Council of Carpenters
Attached:

March 8, 2021 SWAPE Letter to Mitchell M. Tsai re Local Hire Requirements and Considerations for Greenhouse Gas Modeling (Exhibit A); Air Quality and GHG Expert Paul Rosenfeld CV (Exhibit B); Air Quality and GHG Expert Matt Hagemann CV (Exhibit C); Housing Crisis Act of 2019 – SB 330 Preliminary Application Form (Exhibit D); City of Redondo Beach Letter of Incomplete Application Determination (Exhibit E); and
March 10, 2021, Adam Redling's Article re “Demolition industry issues call to reduce power plant fatalities” (Exhibit F).

EXHIBIT A
1 2656 29th Street, Suite 201
Santa Monica, CA 90405
Matt Hagemann, P.G, C.Hg.
(949) 887-9013
[email protected]
Paul E. Rosenfeld, PhD
(310) 795-2335
[email protected]
March 8, 2021
Mitchell M. Tsai
155 South El Molino, Suite 104
Pasadena, CA 91101
Subject: Local Hire Requirements and Considerations for Greenhouse Gas Modeling Dear Mr. Tsai,
Soil Water Air Protection Enterprise (“SWAPE”) is pleased to provide the following draft technical report explaining the significance of worker trips required for construction of land use development projects with respect to the estimation of greenhouse gas (“GHG”) emissions. The report will also discuss the potential for local hire requirements to reduce the length of worker trips, and consequently, reduced or mitigate the potential GHG impacts.

Worker Trips and Greenhouse Gas Calculations
The California Emissions Estimator Model (“CalEEMod”) is a “statewide land use emissions computer model designed to provide a uniform platform for government agencies, land use planners, and environmental professionals to quantify potential criteria pollutant and greenhouse gas (GHG) emissions associated with both construction and operations from a variety of land use projects.”1 CalEEMod quantifies construction-related emissions associated with land use projects resulting from off-road construction equipment; on-road mobile equipment associated with workers, vendors, and hauling; fugitive dust associated with grading, demolition, truck loading, and on-road vehicles traveling along paved and unpaved roads; and architectural coating activities; and paving.2
The number, length, and vehicle class of worker trips are utilized by CalEEMod to calculate emissions associated with the on-road vehicle trips required to transport workers to and from the Project site during construction.3 1 “California Emissions Estimator Model.” CAPCOA, 2017, available at: http://www.aqmd.gov/caleemod/home. 2 “California Emissions Estimator Model.” CAPCOA, 2017, available at: http://www.aqmd.gov/caleemod/home. 3 “CalEEMod User’s Guide.” CAPCOA, November 2017, available at: http://www.aqmd.gov/docs/defaultsource/caleemod/01 user-39-s-guide2016-3-2 15november2017.pdf?sfvrsn=4, p. 34. 2 Specifically, the number and length of vehicle trips is utilized to estimate the vehicle miles travelled (“VMT”) associated with construction. Then, utilizing vehicle-class specific EMFAC 2014 emission factors, CalEEMod calculates the vehicle exhaust, evaporative, and dust emissions resulting from construction-related VMT, including personal vehicles for worker commuting.4
Specifically, in order to calculate VMT, CalEEMod multiplies the average daily trip rate by the average overall trip length (see excerpt below):
“VMTd = Σ(Average Daily Trip Rate i * Average Overall Trip Length i) n Where:
n = Number of land uses being modeled.”5
Furthermore, to calculate the on-road emissions associated with worker trips, CalEEMod utilizes the following equation (see excerpt below):
“Emissionspollutant = VMT * EFrunning,pollutant
Where:

Emissionspollutant = emissions from vehicle running for each pollutant VMT = vehicle miles traveled
EFrunning,pollutant = emission factor for running emissions.” 6 Thus, there is a direct relationship between trip length and VMT, as well as a direct relationship between VMT and vehicle running emissions. In other words, when the trip length is increased, the VMT and vehicle running emissions increase as a result. Thus, vehicle running emissions can be reduced by decreasing the average overall trip length, by way of a local hire requirement or otherwise.

Default Worker Trip Parameters and Potential Local Hire Requirements As previously discussed, the number, length, and vehicle class of worker trips are utilized by CalEEMod to calculate emissions associated with the on-road vehicle trips required to transport workers to and from the Project site during construction.7In order to understand how local hire requirements and associated worker trip length reductions impact GHG emissions calculations, it is important to consider the CalEEMod default worker trip parameters. CalEEMod provides recommended default values based on site-specific information, such as land use type, meteorological data, total lot acreage, project type and typical equipment associated with project type. If more specific project information is known, the user can change the default values and input projectspecific values, but the California Environmental Quality Act (“CEQA”) requires that such changes be justified by substantial evidence.8 The default number of construction-related worker trips is calculated by multiplying the 4 “Appendix A Calculation Details for CalEEMod.” CAPCOA, October 2017, available at: http://www.aqmd.gov/docs/defaultsource/caleemod/02 appendix-a2016-3-2.pdf?sfvrsn=6, p. 14-15. 5 “Appendix A Calculation Details for CalEEMod.” CAPCOA, October 2017, available at: http://www.aqmd.gov/docs/defaultsource/caleemod/02 appendix-a2016-3-2.pdf?sfvrsn=6, p. 23. 6 “Appendix A Calculation Details for CalEEMod.” CAPCOA, October 2017, available at: http://www.aqmd.gov/docs/defaultsource/caleemod/02 appendix-a2016-3-2.pdf?sfvrsn=6, p. 15. 7 “CalEEMod User’s Guide.” CAPCOA, November 2017, available at: http://www.aqmd.gov/docs/defaultsource/caleemod/01 user-39-s-guide2016-3-2 15november2017.pdf?sfvrsn=4, p. 34. 8 CalEEMod User Guide, available at: http://www.caleemod.com/, p. 1, 9.

5 Disclaimer
SWAPE has received limited discovery. Additional information may become available in the future; thus, we retain the right to revise or amend this report when additional information becomes available. Our professional services have been performed using that degree of care and skill ordinarily exercised, under similar circumstances, by reputable environmental consultants practicing in this or similar localities at the time of service. No other warranty, expressed or implied, is made as to the scope of work, work methodologies and protocols, site conditions, analytical testing results, and findings presented. This report reflects efforts which were limited to information that was reasonably accessible at the time of the work, and may contain informational gaps, inconsistencies, or otherwise be incomplete due to the unavailability or uncertainty of information obtained or provided by third parties.

Sincerely,
Matt Hagemann, P.G., C.Hg.

Paul E. Rosenfeld, Ph.D.

Location Type Location Name Rural H-W
(miles)
Urban H-W
(miles)
Air Basin Great Basin 16.8 10.8
Air Basin Lake County 16.8 10.8
Air Basin Lake Tahoe 16.8 10.8
Air Basin Mojave Desert 16.8 10.8
Air Basin Mountain 16.8 10.8
Air Basin North Central 17.1 12.3
Air Basin North Coast 16.8 10.8
Air Basin Northeast 16.8 10.8
Air Basin Sacramento 16.8 10.8
Air Basin Salton Sea 14.6 11
Air Basin San Diego 16.8 10.8
Air Basin San Francisco 10.8 10.8
Air Basin San Joaquin 16.8 10.8
Air Basin South Central 16.8 10.8
Air Basin South Coast 19.8 14.7
Air District Amador County 16.8 10.8
Air District Antelope Valley 16.8 10.8
Air District Bay Area AQMD 10.8 10.8
Air District Butte County 12.54 12.54
Air District Calaveras 16.8 10.8
Air District Colusa County 16.8 10.8
Air District El Dorado 16.8 10.8
Air District Feather River 16.8 10.8
Air District Glenn County 16.8 10.8
Air District Great Basin 16.8 10.8
Air District Imperial County 10.2 7.3
Air District Kern County 16.8 10.8
Air District Lake County 16.8 10.8
Air District Lassen County 16.8 10.8
Air District Mariposa 16.8 10.8
Air District Mendocino 16.8 10.8
Air District Modoc County 16.8 10.8
Air District Mojave Desert 16.8 10.8
Air District Monterey Bay 16.8 10.8
Air District North Coast 16.8 10.8
Air District Northern Sierra 16.8 10.8
Air District Northern

16.8 10.8
Air District Placer County 16.8 10.8
Air District Sacramento 15 10
Attachment A
Air District San Diego 16.8 10.8
Air District San Joaquin

16.8 10.8
Air District San Luis Obispo 13 13
Air District Santa Barbara 8.3 8.3
Air District Shasta County 16.8 10.8
Air District Siskiyou County 16.8 10.8
Air District South Coast 19.8 14.7
Air District Tehama County 16.8 10.8
Air District Tuolumne 16.8 10.8
Air District Ventura County 16.8 10.8
Air District Yolo/Solano 15 10
County Alameda 10.8 10.8
County Alpine 16.8 10.8
County Amador 16.8 10.8
County Butte 12.54 12.54
County Calaveras 16.8 10.8
County Colusa 16.8 10.8
County Contra Costa 10.8 10.8
County Del Norte 16.8 10.8
County El Dorado-Lake 16.8 10.8
County El Dorado- 16.8 10.8
County Fresno 16.8 10.8
County Glenn 16.8 10.8
County Humboldt 16.8 10.8
County Imperial 10.2 7.3
County Inyo 16.8 10.8
County Kern-Mojave 16.8 10.8
County Kern-San 16.8 10.8
County Kings 16.8 10.8
County Lake 16.8 10.8
County Lassen 16.8 10.8
County Los Angeles- 16.8 10.8
County Los Angeles- 19.8 14.7
County Madera 16.8 10.8
County Marin 10.8 10.8
County Mariposa 16.8 10.8
County Mendocino- 16.8 10.8
County Mendocino- 16.8 10.8
County Mendocino- 16.8 10.8
County Mendocino- 16.8 10.8
County Merced 16.8 10.8
County Modoc 16.8 10.8
County Mono 16.8 10.8
County Monterey 16.8 10.8
County Napa 10.8 10.8
County Nevada 16.8 10.8
County Orange 19.8 14.7
County Placer-Lake 16.8 10.8
County Placer-Mountain 16.8 10.8
County Placer- 16.8 10.8
County Plumas 16.8 10.8
County Riverside- 16.8 10.8
County Riverside-

19.8 14.7
County Riverside-Salton 14.6 11
County Riverside-South 19.8 14.7
County Sacramento 15 10
County San Benito 16.8 10.8
County San Bernardino- 16.8 10.8
County San Bernardino- 19.8 14.7
County San Diego 16.8 10.8
County San Francisco 10.8 10.8
County San Joaquin 16.8 10.8
County San Luis Obispo 13 13
County San Mateo 10.8 10.8
County Santa Barbara-

8.3 8.3
County Santa Barbara-

8.3 8.3
County Santa Clara 10.8 10.8
County Santa Cruz 16.8 10.8
County Shasta 16.8 10.8
County Sierra 16.8 10.8
County Siskiyou 16.8 10.8
County Solano- 15 10
County Solano-San 16.8 10.8
County Sonoma-North 16.8 10.8
County Sonoma-San 10.8 10.8
County Stanislaus 16.8 10.8
County Sutter 16.8 10.8
County Tehama 16.8 10.8
County Trinity 16.8 10.8
County Tulare 16.8 10.8
County Tuolumne 16.8 10.8
County Ventura 16.8 10.8
County Yolo 15 10
County Yuba 16.8 10.8
Statewide Statewide 16.8 10.8
Air Basin Rural (miles) Urban (miles)
Great Basin Valleys 16.8 10.8
Lake County 16.8 10.8
Lake Tahoe 16.8 10.8
Mojave Desert 16.8 10.8
Mountain Counties 16.8 10.8
North Central Coast 17.1 12.3
North Coast 16.8 10.8
Northeast Plateau 16.8 10.8
Sacramento Valley 16.8 10.8
Salton Sea 14.6 11
San Diego 16.8 10.8
San Francisco Bay Area 10.8 10.8
San Joaquin Valley 16.8 10.8
South Central Coast 16.8 10.8
South Coast 19.8 14.7
Average 16.47 11.17
Mininum 10.80 10.80
Maximum 19.80 14.70
Range 9.00 3.90
Worker Trip Length by Air Basin

11.0 Vegetation
Boilers
Equipment Type Number Heat Input/Day Heat Input/Year Boiler Rating Fuel Type User Defined Equipment
Equipment Type Number
CalEEMod Version: CalEEMod.2016.3.2 Page 44 of 44 Date: 1/6/2021 1:52 PM Village South Specific Plan (Proposed) - Los Angeles-South Coast County, Annual

11.0 Vegetation
Boilers
Equipment Type Number Heat Input/Day Heat Input/Year Boiler Rating Fuel Type User Defined Equipment
Equipment Type Number
CalEEMod Version: CalEEMod.2016.3.2 Page 44 of 44 Date: 1/12/2021 2:26 PM Village South Specific Plan (Proposed) - Los Angeles-South Coast County, Annual

11.0 Vegetation
Fire Pumps and Emergency Generators
Equipment Type Number Hours/Day Hours/Year Horse Power Load Factor Fuel Type Boilers
Equipment Type Number Heat Input/Day Heat Input/Year Boiler Rating Fuel Type User Defined Equipment
Equipment Type Number
CalEEMod Version: CalEEMod.2016.3.2 Page 35 of 35 Date: 1/12/2021 2:30 PM Village South Specific Plan (Proposed) - Los Angeles-South Coast County, Winter Total Construction GHG Emissions (MT CO2e) 3,623
Amortized (MT CO2e/year) 120.77
Total Construction GHG Emissions (MT CO2e) 3,024
Amortized (MT CO2e/year) 100.80
% Decrease in Construction-related GHG Emissions 17%
Local Hire Provision Net Change
With Local Hire Provision
Without Local Hire Provision
Attachment C

EXHIBIT B

SOIL WATER AIR PROTECTION ENTERPRISE
2656 29th Street, Suite 201
Santa Monica, California 90405
Attn: Paul Rosenfeld, Ph.D.

Mobil: (310) 795-2335
Office: (310) 452-5555
Fax: (310) 452-5550
Email: [email protected]
Paul E. Rosenfeld, Ph.D. Page 1 of 10 June 2019
Paul Rosenfeld, Ph.D. Chemical Fate and Transport & Air Dispersion Modeling Principal Environmental Chemist Risk Assessment & Remediation Specialist Education
Ph.D. Soil Chemistry, University of Washington, 1999. Dissertation on volatile organic compound filtration.

M.S. Environmental Science, U.C. Berkeley, 1995. Thesis on organic waste economics.

B.A. Environmental Studies, U.C. Santa Barbara, 1991. Thesis on wastewater treatment.

Professional Experience
Dr. Rosenfeld has over 25 years’ experience conducting environmental investigations and risk assessments for evaluating impacts to human health, property, and ecological receptors. His expertise focuses on the fate and transport of environmental contaminants, human health risk, exposure assessment, and ecological restoration. Dr.

Rosenfeld has evaluated and modeled emissions from unconventional oil drilling operations, oil spills, landfills, boilers and incinerators, process stacks, storage tanks, confined animal feeding operations, and many other industrial and agricultural sources. His project experience ranges from monitoring and modeling of pollution sources to evaluating impacts of pollution on workers at industrial facilities and residents in surrounding communities.

Dr. Rosenfeld has investigated and designed remediation programs and risk assessments for contaminated sites containing lead, heavy metals, mold, bacteria, particulate matter, petroleum hydrocarbons, chlorinated solvents, pesticides, radioactive waste, dioxins and furans, semi- and volatile organic compounds, PCBs, PAHs, perchlorate, asbestos, per- and poly-fluoroalkyl substances (PFOA/PFOS), unusual polymers, fuel oxygenates (MTBE), among other pollutants. Dr. Rosenfeld also has experience evaluating greenhouse gas emissions from various projects and is an expert on the assessment of odors from industrial and agricultural sites, as well as the evaluation of odor nuisance impacts and technologies for abatement of odorous emissions. As a principal scientist at SWAPE, Dr. Rosenfeld directs air dispersion modeling and exposure assessments. He has served as an expert witness and testified about pollution sources causing nuisance and/or personal injury at dozens of sites and has testified as an expert witness on more than ten cases involving exposure to air contaminants from industrial sources.

Paul E. Rosenfeld, Ph.D. Page 2 of 10 June 2019
Professional History:

Soil Water Air Protection Enterprise (SWAPE); 2003 to present; Principal and Founding Partner UCLA School of Public Health; 2007 to 2011; Lecturer (Assistant Researcher) UCLA School of Public Health; 2003 to 2006; Adjunct Professor UCLA Environmental Science and Engineering Program; 2002-2004; Doctoral Intern Coordinator UCLA Institute of the Environment, 2001-2002; Research Associate Komex H2O Science, 2001 to 2003; Senior Remediation Scientist National Groundwater Association, 2002-2004; Lecturer
San Diego State University, 1999-2001; Adjunct Professor Anteon Corp., San Diego, 2000-2001; Remediation Project Manager Ogden (now Amec), San Diego, 2000-2000; Remediation Project Manager Bechtel, San Diego, California, 1999 – 2000; Risk Assessor King County, Seattle, 1996 – 1999; Scientist
James River Corp., Washington, 1995-96; Scientist
Big Creek Lumber, Davenport, California, 1995; Scientist Plumas Corp., California and USFS, Tahoe 1993-1995; Scientist Peace Corps and World Wildlife Fund, St. Kitts, West Indies, 1991-1993; Scientist Publications:

Remy, L.L., Clay T., Byers, V., Rosenfeld P. E. (2019) Hospital, Health, and Community Burden After Oil Refinery Fires, Richmond, California 2007 and 2012. Environmental Health. 18:48 Simons, R.A., Seo, Y. Rosenfeld, P., (2015) Modeling the Effect of Refinery Emission On Residential Property Value. Journal of Real Estate Research. 27(3):321-342
Chen, J. A, Zapata A. R., Sutherland A. J., Molmen, D.R., Chow, B. S., Wu, L. E., Rosenfeld, P. E., Hesse, R. C., (2012) Sulfur Dioxide and Volatile Organic Compound Exposure To A Community In Texas City Texas Evaluated Using Aermod and Empirical Data. American Journal of Environmental Science, 8(6), 622-632.

Rosenfeld, P.E. & Feng, L. (2011). The Risks of Hazardous Waste. Amsterdam: Elsevier Publishing.

Cheremisinoff, N.P., & Rosenfeld, P.E. (2011). Handbook of Pollution Prevention and Cleaner Production: Best Practices in the Agrochemical Industry, Amsterdam: Elsevier Publishing.

Gonzalez, J., Feng, L., Sutherland, A., Waller, C., Sok, H., Hesse, R., Rosenfeld, P. (2010). PCBs and Dioxins/Furans in Attic Dust Collected Near Former PCB Production and Secondary Copper Facilities in Sauget, IL.

Procedia Environmental Sciences. 113–125.

Feng, L., Wu, C., Tam, L., Sutherland, A.J., Clark, J.J., Rosenfeld, P.E. (2010). Dioxin and Furan Blood Lipid and Attic Dust Concentrations in Populations Living Near Four Wood Treatment Facilities in the United States. Journal of Environmental Health. 73(6), 34-46.

Cheremisinoff, N.P., & Rosenfeld, P.E. (2010). Handbook of Pollution Prevention and Cleaner Production: Best Practices in the Wood and Paper Industries. Amsterdam: Elsevier Publishing.

Cheremisinoff, N.P., & Rosenfeld, P.E. (2009). Handbook of Pollution Prevention and Cleaner Production: Best Practices in the Petroleum Industry. Amsterdam: Elsevier Publishing.

Wu, C., Tam, L., Clark, J., Rosenfeld, P. (2009). Dioxin and furan blood lipid concentrations in populations living near four wood treatment facilities in the United States. WIT Transactions on Ecology and the Environment, Air Pollution, 123 (17), 319-327.

Paul E. Rosenfeld, Ph.D. Page 3 of 10 June 2019
Tam L. K.., Wu C. D., Clark J. J. and Rosenfeld, P.E. (2008). A Statistical Analysis Of Attic Dust And Blood Lipid Concentrations Of Tetrachloro-p-Dibenzodioxin (TCDD) Toxicity Equivalency Quotients (TEQ) In Two Populations Near Wood Treatment Facilities. Organohalogen Compounds, 70, 002252-002255.

Tam L. K.., Wu C. D., Clark J. J. and Rosenfeld, P.E. (2008). Methods For Collect Samples For Assessing Dioxins And Other Environmental Contaminants In Attic Dust: A Review. Organohalogen Compounds, 70, 000527- 000530.

Hensley, A.R. A. Scott, J. J. J. Clark, Rosenfeld, P.E. (2007). Attic Dust and Human Blood Samples Collected near a Former Wood Treatment Facility. Environmental Research. 105, 194-197.

Rosenfeld, P.E., J. J. J. Clark, A. R. Hensley, M. Suffet. (2007). The Use of an Odor Wheel Classification for Evaluation of Human Health Risk Criteria for Compost Facilities. Water Science & Technology 55(5), 345-357.

Rosenfeld, P. E., M. Suffet. (2007). The Anatomy Of Odour Wheels For Odours Of Drinking Water, Wastewater, Compost And The Urban Environment. Water Science & Technology 55(5), 335-344.

Sullivan, P. J. Clark, J.J.J., Agardy, F. J., Rosenfeld, P.E. (2007). Toxic Legacy, Synthetic Toxins in the Food, Water, and Air in American Cities. Boston Massachusetts: Elsevier Publishing Rosenfeld, P.E., and Suffet I.H. (2004). Control of Compost Odor Using High Carbon Wood Ash. Water Science and Technology. 49(9),171-178.

Rosenfeld P. E., J.J. Clark, I.H. (Mel) Suffet (2004). The Value of An Odor-Quality-Wheel Classification Scheme For The Urban Environment. Water Environment Federation’s Technical Exhibition and Conference (WEFTEC) 2004. New Orleans, October 2-6, 2004.

Rosenfeld, P.E., and Suffet, I.H. (2004). Understanding Odorants Associated With Compost, Biomass Facilities, and the Land Application of Biosolids. Water Science and Technology. 49(9), 193-199.

Rosenfeld, P.E., and Suffet I.H. (2004). Control of Compost Odor Using High Carbon Wood Ash, Water Science and Technology, 49( 9), 171-178.

Rosenfeld, P. E., Grey, M. A., Sellew, P. (2004). Measurement of Biosolids Odor and Odorant Emissions from Windrows, Static Pile and Biofilter. Water Environment Research. 76(4), 310-315.

Rosenfeld, P.E., Grey, M and Suffet, M. (2002). Compost Demonstration Project, Sacramento California Using High-Carbon Wood Ash to Control Odor at a Green Materials Composting Facility. Integrated Waste Management Board Public Affairs Office, Publications Clearinghouse (MS–6), Sacramento, CA Publication #442-02-008.

Rosenfeld, P.E., and C.L. Henry. (2001). Characterization of odor emissions from three different biosolids. Water Soil and Air Pollution. 127(1-4), 173-191.

Rosenfeld, P.E., and Henry C. L., (2000). Wood ash control of odor emissions from biosolids application. Journal of Environmental Quality. 29, 1662-1668.

Rosenfeld, P.E., C.L. Henry and D. Bennett. (2001). Wastewater dewatering polymer affect on biosolids odor emissions and microbial activity. Water Environment Research. 73(4), 363-367.

Rosenfeld, P.E., and C.L. Henry. (2001). Activated Carbon and Wood Ash Sorption of Wastewater, Compost, and Biosolids Odorants. Water Environment Research, 73, 388-393.

Rosenfeld, P.E., and Henry C. L., (2001). High carbon wood ash effect on biosolids microbial activity and odor.

Water Environment Research. 131(1-4), 247-262.

Paul E. Rosenfeld, Ph.D. Page 4 of 10 June 2019
Chollack, T. and P. Rosenfeld. (1998). Compost Amendment Handbook For Landscaping. Prepared for and distributed by the City of Redmond, Washington State.

Rosenfeld, P. E. (1992). The Mount Liamuiga Crater Trail. Heritage Magazine of St. Kitts, 3(2).

Rosenfeld, P. E. (1993). High School Biogas Project to Prevent Deforestation On St. Kitts. Biomass Users Network, 7(1).

Rosenfeld, P. E. (1998). Characterization, Quantification, and Control of Odor Emissions From Biosolids Application To Forest Soil. Doctoral Thesis. University of Washington College of Forest Resources.

Rosenfeld, P. E. (1994). Potential Utilization of Small Diameter Trees on Sierra County Public Land. Masters thesis reprinted by the Sierra County Economic Council. Sierra County, California.

Rosenfeld, P. E. (1991). How to Build a Small Rural Anaerobic Digester & Uses Of Biogas In The First And Third World. Bachelors Thesis. University of California.

Presentations:

Rosenfeld, P.E., Sutherland, A; Hesse, R.; Zapata, A. (October 3-6, 2013). Air dispersion modeling of volatile organic emissions from multiple natural gas wells in Decatur, TX. 44th Western Regional Meeting, American Chemical Society. Lecture conducted from Santa Clara, CA.

Sok, H.L.; Waller, C.C.; Feng, L.; Gonzalez, J.; Sutherland, A.J.; Wisdom-Stack, T.; Sahai, R.K.; Hesse, R.C.; Rosenfeld, P.E. (June 20-23, 2010). Atrazine: A Persistent Pesticide in Urban Drinking Water.

Urban Environmental Pollution. Lecture conducted from Boston, MA.

Feng, L.; Gonzalez, J.; Sok, H.L.; Sutherland, A.J.; Waller, C.C.; Wisdom-Stack, T.; Sahai, R.K.; La, M.; Hesse, R.C.; Rosenfeld, P.E. (June 20-23, 2010). Bringing Environmental Justice to East St. Louis, Illinois. Urban Environmental Pollution. Lecture conducted from Boston, MA.

Rosenfeld, P.E. (April 19-23, 2009). Perfluoroctanoic Acid (PFOA) and Perfluoroactane Sulfonate (PFOS) Contamination in Drinking Water From the Use of Aqueous Film Forming Foams (AFFF) at Airports in the United States. 2009 Ground Water Summit and 2009 Ground Water Protection Council Spring Meeting, Lecture conducted from Tuscon, AZ.

Rosenfeld, P.E. (April 19-23, 2009). Cost to Filter Atrazine Contamination from Drinking Water in the United States” Contamination in Drinking Water From the Use of Aqueous Film Forming Foams (AFFF) at Airports in the United States. 2009 Ground Water Summit and 2009 Ground Water Protection Council Spring Meeting. Lecture conducted from Tuscon, AZ.

Wu, C., Tam, L., Clark, J., Rosenfeld, P. (20-22 July, 2009). Dioxin and furan blood lipid concentrations in populations living near four wood treatment facilities in the United States. Brebbia, C.A. and Popov, V., eds., Air Pollution XVII: Proceedings of the Seventeenth International Conference on Modeling, Monitoring and Management of Air Pollution. Lecture conducted from Tallinn, Estonia.

Rosenfeld, P. E. (October 15-18, 2007). Moss Point Community Exposure To Contaminants From A Releasing Facility. The 23rd Annual International Conferences on Soils Sediment and Water. Platform lecture conducted from University of Massachusetts, Amherst MA.

Rosenfeld, P. E. (October 15-18, 2007). The Repeated Trespass of Tritium-Contaminated Water Into A Surrounding Community Form Repeated Waste Spills From A Nuclear Power Plant. The 23rd Annual International Conferences on Soils Sediment and Water. Platform lecture conducted from University of Massachusetts, Amherst MA.

Paul E. Rosenfeld, Ph.D. Page 5 of 10 June 2019
Rosenfeld, P. E. (October 15-18, 2007). Somerville Community Exposure To Contaminants From Wood Treatment Facility Emissions. The 23rd Annual International Conferences on Soils Sediment and Water. Lecture conducted from University of Massachusetts, Amherst MA.

Rosenfeld P. E. (March 2007). Production, Chemical Properties, Toxicology, & Treatment Case Studies of 1,2,3- Trichloropropane (TCP). The Association for Environmental Health and Sciences (AEHS) Annual Meeting. Lecture conducted from San Diego, CA.

Rosenfeld P. E. (March 2007). Blood and Attic Sampling for Dioxin/Furan, PAH, and Metal Exposure in Florala, Alabama. The AEHS Annual Meeting. Lecture conducted from San Diego, CA.

Hensley A.R., Scott, A., Rosenfeld P.E., Clark, J.J.J. (August 21 – 25, 2006). Dioxin Containing Attic Dust And Human Blood Samples Collected Near A Former Wood Treatment Facility. The 26th International Symposium on Halogenated Persistent Organic Pollutants – DIOXIN2006. Lecture conducted from Radisson SAS Scandinavia Hotel in Oslo Norway.

Hensley A.R., Scott, A., Rosenfeld P.E., Clark, J.J.J. (November 4-8, 2006). Dioxin Containing Attic Dust And Human Blood Samples Collected Near A Former Wood Treatment Facility. APHA 134 Annual Meeting & Exposition. Lecture conducted from Boston Massachusetts.

Paul Rosenfeld Ph.D. (October 24-25, 2005). Fate, Transport and Persistence of PFOA and Related Chemicals.

Mealey’s C8/PFOA. Science, Risk & Litigation Conference. Lecture conducted from The Rittenhouse Hotel, Philadelphia, PA.

Paul Rosenfeld Ph.D. (September 19, 2005). Brominated Flame Retardants in Groundwater: Pathways to Human Ingestion, Toxicology and Remediation PEMA Emerging Contaminant Conference. Lecture conducted from Hilton Hotel, Irvine California.

Paul Rosenfeld Ph.D. (September 19, 2005). Fate, Transport, Toxicity, And Persistence of 1,2,3-TCP. PEMA Emerging Contaminant Conference. Lecture conducted from Hilton Hotel in Irvine, California.

Paul Rosenfeld Ph.D. (September 26-27, 2005). Fate, Transport and Persistence of PDBEs. Mealey’s Groundwater Conference. Lecture conducted from Ritz Carlton Hotel, Marina Del Ray, California.

Paul Rosenfeld Ph.D. (June 7-8, 2005). Fate, Transport and Persistence of PFOA and Related Chemicals.

International Society of Environmental Forensics: Focus On Emerging Contaminants. Lecture conducted from Sheraton Oceanfront Hotel, Virginia Beach, Virginia.

Paul Rosenfeld Ph.D. (July 21-22, 2005). Fate Transport, Persistence and Toxicology of PFOA and Related Perfluorochemicals. 2005 National Groundwater Association Ground Water And Environmental Law Conference.

Lecture conducted from Wyndham Baltimore Inner Harbor, Baltimore Maryland.

Paul Rosenfeld Ph.D. (July 21-22, 2005). Brominated Flame Retardants in Groundwater: Pathways to Human Ingestion, Toxicology and Remediation. 2005 National Groundwater Association Ground Water and Environmental Law Conference. Lecture conducted from Wyndham Baltimore Inner Harbor, Baltimore Maryland.

Paul Rosenfeld, Ph.D. and James Clark Ph.D. and Rob Hesse R.G. (May 5-6, 2004). Tert-butyl Alcohol Liability and Toxicology, A National Problem and Unquantified Liability. National Groundwater Association. Environmental Law Conference. Lecture conducted from Congress Plaza Hotel, Chicago Illinois.

Paul Rosenfeld, Ph.D. (March 2004). Perchlorate Toxicology. Meeting of the American Groundwater Trust.

Lecture conducted from Phoenix Arizona.

Hagemann, M.F., Paul Rosenfeld, Ph.D. and Rob Hesse (2004). Perchlorate Contamination of the Colorado River.

Meeting of tribal representatives. Lecture conducted from Parker, AZ.

Paul E. Rosenfeld, Ph.D. Page 6 of 10 June 2019
Paul Rosenfeld, Ph.D. (April 7, 2004). A National Damage Assessment Model For PCE and Dry Cleaners.

Drycleaner Symposium. California Ground Water Association. Lecture conducted from Radison Hotel, Sacramento, California.

Rosenfeld, P. E., Grey, M., (June 2003) Two stage biofilter for biosolids composting odor control. Seventh International In Situ And On Site Bioremediation Symposium Battelle Conference Orlando, FL.

Paul Rosenfeld, Ph.D. and James Clark Ph.D. (February 20-21, 2003) Understanding Historical Use, Chemical Properties, Toxicity and Regulatory Guidance of 1,4 Dioxane. National Groundwater Association. Southwest Focus Conference. Water Supply and Emerging Contaminants.. Lecture conducted from Hyatt Regency Phoenix Arizona.

Paul Rosenfeld, Ph.D. (February 6-7, 2003). Underground Storage Tank Litigation and Remediation. California CUPA Forum. Lecture conducted from Marriott Hotel, Anaheim California.

Paul Rosenfeld, Ph.D. (October 23, 2002) Underground Storage Tank Litigation and Remediation. EPA Underground Storage Tank Roundtable. Lecture conducted from Sacramento California.

Rosenfeld, P.E. and Suffet, M. (October 7- 10, 2002). Understanding Odor from Compost, Wastewater and Industrial Processes. Sixth Annual Symposium On Off Flavors in the Aquatic Environment. International Water Association. Lecture conducted from Barcelona Spain.

Rosenfeld, P.E. and Suffet, M. (October 7- 10, 2002). Using High Carbon Wood Ash to Control Compost Odor.

Sixth Annual Symposium On Off Flavors in the Aquatic Environment. International Water Association. Lecture conducted from Barcelona Spain.

Rosenfeld, P.E. and Grey, M. A. (September 22-24, 2002). Biocycle Composting For Coastal Sage Restoration.

Northwest Biosolids Management Association. Lecture conducted from Vancouver Washington..

Rosenfeld, P.E. and Grey, M. A. (November 11-14, 2002). Using High-Carbon Wood Ash to Control Odor at a Green Materials Composting Facility. Soil Science Society Annual Conference. Lecture conducted from Indianapolis, Maryland.

Rosenfeld. P.E. (September 16, 2000). Two stage biofilter for biosolids composting odor control. Water Environment Federation. Lecture conducted from Anaheim California.

Rosenfeld. P.E. (October 16, 2000). Wood ash and biofilter control of compost odor. Biofest. Lecture conducted from Ocean Shores, California.

Rosenfeld, P.E. (2000). Bioremediation Using Organic Soil Amendments. California Resource Recovery Association. Lecture conducted from Sacramento California.

Rosenfeld, P.E., C.L. Henry, R. Harrison. (1998). Oat and Grass Seed Germination and Nitrogen and Sulfur Emissions Following Biosolids Incorporation With High-Carbon Wood-Ash. Water Environment Federation 12th Annual Residuals and Biosolids Management Conference Proceedings. Lecture conducted from Bellevue Washington.

Rosenfeld, P.E., and C.L. Henry. (1999). An evaluation of ash incorporation with biosolids for odor reduction. Soil Science Society of America. Lecture conducted from Salt Lake City Utah.

Rosenfeld, P.E., C.L. Henry, R. Harrison. (1998). Comparison of Microbial Activity and Odor Emissions from Three Different Biosolids Applied to Forest Soil. Brown and Caldwell. Lecture conducted from Seattle Washington.

Rosenfeld, P.E., C.L. Henry. (1998). Characterization, Quantification, and Control of Odor Emissions from Biosolids Application To Forest Soil. Biofest. Lecture conducted from Lake Chelan, Washington.

Paul E. Rosenfeld, Ph.D. Page 7 of 10 June 2019
Rosenfeld, P.E, C.L. Henry, R. Harrison. (1998). Oat and Grass Seed Germination and Nitrogen and Sulfur Emissions Following Biosolids Incorporation With High-Carbon Wood-Ash. Water Environment Federation 12th Annual Residuals and Biosolids Management Conference Proceedings. Lecture conducted from Bellevue Washington.

Rosenfeld, P.E., C.L. Henry, R. B. Harrison, and R. Dills. (1997). Comparison of Odor Emissions From Three Different Biosolids Applied to Forest Soil. Soil Science Society of America. Lecture conducted from Anaheim California.

Teaching Experience:

UCLA Department of Environmental Health (Summer 2003 through 20010) Taught Environmental Health Science 100 to students, including undergrad, medical doctors, public health professionals and nurses. Course focused on the health effects of environmental contaminants.

National Ground Water Association, Successful Remediation Technologies. Custom Course in Sante Fe, New Mexico. May 21, 2002. Focused on fate and transport of fuel contaminants associated with underground storage tanks.

National Ground Water Association; Successful Remediation Technologies Course in Chicago Illinois. April 1, 2002. Focused on fate and transport of contaminants associated with Superfund and RCRA sites.

California Integrated Waste Management Board, April and May, 2001. Alternative Landfill Caps Seminar in San Diego, Ventura, and San Francisco. Focused on both prescriptive and innovative landfill cover design.

UCLA Department of Environmental Engineering, February 5, 2002. Seminar on Successful Remediation Technologies focusing on Groundwater Remediation.

University Of Washington, Soil Science Program, Teaching Assistant for several courses including: Soil Chemistry, Organic Soil Amendments, and Soil Stability.

U.C. Berkeley, Environmental Science Program Teaching Assistant for Environmental Science 10.

Academic Grants Awarded:

California Integrated Waste Management Board. $41,000 grant awarded to UCLA Institute of the Environment.

Goal: To investigate effect of high carbon wood ash on volatile organic emissions from compost. 2001.

Synagro Technologies, Corona California: $10,000 grant awarded to San Diego State University.

Goal: investigate effect of biosolids for restoration and remediation of degraded coastal sage soils. 2000.

King County, Department of Research and Technology, Washington State. $100,000 grant awarded to University of Washington: Goal: To investigate odor emissions from biosolids application and the effect of polymers and ash on VOC emissions. 1998.

Northwest Biosolids Management Association, Washington State. $20,000 grant awarded to investigate effect of polymers and ash on VOC emissions from biosolids. 1997.

James River Corporation, Oregon: $10,000 grant was awarded to investigate the success of genetically engineered Poplar trees with resistance to round-up. 1996.

United State Forest Service, Tahoe National Forest: $15,000 grant was awarded to investigating fire ecology of the Tahoe National Forest. 1995.

Kellogg Foundation, Washington D.C. $500 grant was awarded to construct a large anaerobic digester on St. Kitts in West Indies. 1993
Paul E. Rosenfeld, Ph.D. Page 8 of 10 June 2019
Deposition and/or Trial Testimony:

In the United States District Court For The District of New Jersey Duarte et al, Plaintiffs, vs. United States Metals Refining Company et. al. Defendant.

Case No.: 2:17-cv-01624-ES-SCM
Rosenfeld Deposition. 6-7-2019
In the United States District Court of Southern District of Texas Galveston Division M/T Carla Maersk, Plaintiffs, vs. Conti 168., Schiffahrts-GMBH & Co. Bulker KG MS “Conti Perdido” Defendant.

Case No.: 3:15-CV-00106 consolidated with 3:15-CV-00237 Rosenfeld Deposition. 5-9-2019
In The Superior Court of the State of California In And For The County Of Los Angeles – Santa Monica Carole-Taddeo-Bates et al., vs. Ifran Khan et al., Defendants Case No.: No. BC615636
Rosenfeld Deposition, 1-26-2019
In The Superior Court of the State of California In And For The County Of Los Angeles – Santa Monica The San Gabriel Valley Council of Governments et al. vs El Adobe Apts. Inc. et al., Defendants Case No.: No. BC646857
Rosenfeld Deposition, 10-6-2018; Trial 3-7-19

In United States District Court For The District of Colorado Bells et al. Plaintiff vs. The 3M Company et al., Defendants Case: No 1:16-cv-02531-RBJ
Rosenfeld Deposition, 3-15-2018 and 4-3-2018
In The District Court Of Regan County, Texas, 112th Judicial District Phillip Bales et al., Plaintiff vs. Dow Agrosciences, LLC, et al., Defendants Cause No 1923
Rosenfeld Deposition, 11-17-2017
In The Superior Court of the State of California In And For The County Of Contra Costa Simons et al., Plaintiffs vs. Chevron Corporation, et al., Defendants Cause No C12-01481
Rosenfeld Deposition, 11-20-2017
In The Circuit Court Of The Twentieth Judicial Circuit, St Clair County, Illinois Martha Custer et al., Plaintiff vs. Cerro Flow Products, Inc., Defendants Case No.: No. 0i9-L-2295
Rosenfeld Deposition, 8-23-2017

In The Superior Court of the State of California, For The County of Los Angeles Warrn Gilbert and Penny Gilber, Plaintiff vs. BMW of North America LLC Case No.: LC102019 (c/w BC582154)
Rosenfeld Deposition, 8-16-2017, Trail 8-28-2018
In the Northern District Court of Mississippi, Greenville Division Brenda J. Cooper, et al., Plaintiffs, vs. Meritor Inc., et al., Defendants Case Number: 4:16-cv-52-DMB-JVM
Rosenfeld Deposition: July 2017
Paul E. Rosenfeld, Ph.D. Page 9 of 10 June 2019
In The Superior Court of the State of Washington, County of Snohomish Michael Davis and Julie Davis et al., Plaintiff vs. Cedar Grove Composting Inc., Defendants Case No.: No. 13-2-03987-5
Rosenfeld Deposition, February 2017
Trial, March 2017
In The Superior Court of the State of California, County of Alameda Charles Spain., Plaintiff vs. Thermo Fisher Scientific, et al., Defendants Case No.: RG14711115
Rosenfeld Deposition, September 2015
In The Iowa District Court In And For Poweshiek County
Russell D. Winburn, et al., Plaintiffs vs. Doug Hoksbergen, et al., Defendants Case No.: LALA002187
Rosenfeld Deposition, August 2015
In The Iowa District Court For Wapello County
Jerry Dovico, et al., Plaintiffs vs. Valley View Sine LLC, et al., Defendants Law No,: LALA105144 - Division A
Rosenfeld Deposition, August 2015
In The Iowa District Court For Wapello County
Doug Pauls, et al.,, et al., Plaintiffs vs. Richard Warren, et al., Defendants Law No,: LALA105144 - Division A
Rosenfeld Deposition, August 2015
In The Circuit Court of Ohio County, West Virginia
Robert Andrews, et al. v. Antero, et al.

Civil Action N0. 14-C-30000
Rosenfeld Deposition, June 2015
In The Third Judicial District County of Dona Ana, New Mexico Betty Gonzalez, et al. Plaintiffs vs. Del Oro Dairy, Del Oro Real Estate LLC, Jerry Settles and Deward DeRuyter, Defendants
Rosenfeld Deposition: July 2015
In The Iowa District Court For Muscatine County
Laurie Freeman et. al. Plaintiffs vs. Grain Processing Corporation, Defendant Case No 4980
Rosenfeld Deposition: May 2015
In the Circuit Court of the 17th Judicial Circuit, in and For Broward County, Florida Walter Hinton, et. al. Plaintiff, vs. City of Fort Lauderdale, Florida, a Municipality, Defendant.

Case Number CACE07030358 (26)
Rosenfeld Deposition: December 2014
In the United States District Court Western District of Oklahoma Tommy McCarty, et al., Plaintiffs, v. Oklahoma City Landfill, LLC d/b/a Southeast Oklahoma City Landfill, et al. Defendants.

Case No. 5:12-cv-01152-C
Rosenfeld Deposition: July 2014
Paul E. Rosenfeld, Ph.D. Page 10 of 10 June 2019
In the County Court of Dallas County Texas
Lisa Parr et al, Plaintiff, vs. Aruba et al, Defendant.

Case Number cc-11-01650-E
Rosenfeld Deposition: March and September 2013
Rosenfeld Trial: April 2014
In the Court of Common Pleas of Tuscarawas County Ohio
John Michael Abicht, et al., Plaintiffs, vs. Republic Services, Inc., et al., Defendants Case Number: 2008 CT 10 0741 (Cons. w/ 2009 CV 10 0987) Rosenfeld Deposition: October 2012
In the United States District Court of Southern District of Texas Galveston Division Kyle Cannon, Eugene Donovan, Genaro Ramirez, Carol Sassler, and Harvey Walton, each Individually and on behalf of those similarly situated, Plaintiffs, vs. BP Products North America, Inc., Defendant.

Case 3:10-cv-00622
Rosenfeld Deposition: February 2012
Rosenfeld Trial: April 2013
In the Circuit Court of Baltimore County Maryland
Philip E. Cvach, II et al., Plaintiffs vs. Two Farms, Inc. d/b/a Royal Farms, Defendants Case Number: 03-C-12-012487 OT
Rosenfeld Deposition: September 2013

EXHIBIT C
1640 5th St.., Suite 204 Santa
Santa Monica, California 90401
Tel: (949) 887‐9013
Email: [email protected]
Matthew F. Hagemann, P.G., C.Hg., QSD, QSP
Geologic and Hydrogeologic Characterization
Industrial Stormwater Compliance
Investigation and Remediation Strategies
Litigation Support and Testifying Expert
CEQA Review
Education:

M.S. Degree, Geology, California State University Los Angeles, Los Angeles, CA, 1984.

B.A. Degree, Geology, Humboldt State University, Arcata, CA, 1982.

Professional Certifications:

California Professional Geologist
California Certified Hydrogeologist
Qualified SWPPP Developer and Practitioner
Professional Experience:

Matt has 25 years of experience in environmental policy, assessment and remediation. He spent nine years with the U.S. EPA in the RCRA and Superfund programs and served as EPA’s Senior Science Policy Advisor in the Western Regional Office where he identified emerging threats to groundwater from perchlorate and MTBE. While with EPA, Matt also served as a Senior Hydrogeologist in the oversight of the assessment of seven major military facilities undergoing base closure. He led numerous enforcement actions under provisions of the Resource Conservation and Recovery Act (RCRA) while also working with permit holders to improve hydrogeologic characterization and water quality monitoring.

Matt has worked closely with U.S. EPA legal counsel and the technical staff of several states in the application and enforcement of RCRA, Safe Drinking Water Act and Clean Water Act regulations. Matt has trained the technical staff in the States of California, Hawaii, Nevada, Arizona and the Territory of Guam in the conduct of investigations, groundwater fundamentals, and sampling techniques.

Positions Matt has held include:
• Founding Partner, Soil/Water/Air Protection Enterprise (SWAPE) (2003 – present); • Geology Instructor, Golden West College, 2010 – 2014; • Senior Environmental Analyst, Komex H2O Science, Inc. (2000 ‐‐ 2003); • Executive Director, Orange Coast Watch (2001 – 2004); • Senior Science Policy Advisor and Hydrogeologist, U.S. Environmental Protection Agency (1989– 1998);
• Hydrogeologist, National Park Service, Water Resources Division (1998 – 2000); • Adjunct Faculty Member, San Francisco State University, Department of Geosciences (1993 – 1998);
• Instructor, College of Marin, Department of Science (1990 – 1995); • Geologist, U.S. Forest Service (1986 – 1998); and
• Geologist, Dames & Moore (1984 – 1986).

Senior Regulatory and Litigation Support Analyst:

With SWAPE, Matt’s responsibilities have included:
• Lead analyst and testifying expert in the review of over 100 environmental impact reports since 2003 under CEQA that identify significant issues with regard to hazardous waste, water resources, water quality, air quality, Valley Fever, greenhouse gas emissions, and geologic hazards. Make recommendations for additional mitigation measures to lead agencies at the local and county level to include additional characterization of health risks and implementation of protective measures to reduce worker exposure to hazards from toxins and Valley Fever.
• Stormwater analysis, sampling and best management practice evaluation at industrial facilities. • Manager of a project to provide technical assistance to a community adjacent to a former Naval shipyard under a grant from the U.S. EPA.
• Technical assistance and litigation support for vapor intrusion concerns. • Lead analyst and testifying expert in the review of environmental issues in license applications for large solar power plants before the California Energy Commission. • Manager of a project to evaluate numerous formerly used military sites in the western U.S. • Manager of a comprehensive evaluation of potential sources of perchlorate contamination in Southern California drinking water wells.
• Manager and designated expert for litigation support under provisions of Proposition 65 in the review of releases of gasoline to sources drinking water at major refineries and hundreds of gas stations throughout California.
• Expert witness on two cases involving MTBE litigation. • Expert witness and litigation support on the impact of air toxins and hazards at a school. • Expert witness in litigation at a former plywood plant.

With Komex H2O Science Inc., Matt’s duties included the following:
• Senior author of a report on the extent of perchlorate contamination that was used in testimony by the former U.S. EPA Administrator and General Counsel. • Senior researcher in the development of a comprehensive, electronically interactive chronology of MTBE use, research, and regulation.
• Senior researcher in the development of a comprehensive, electronically interactive chronology of perchlorate use, research, and regulation.
• Senior researcher in a study that estimates nationwide costs for MTBE remediation and drinking water treatment, results of which were published in newspapers nationwide and in testimony against provisions of an energy bill that would limit liability for oil companies. • Research to support litigation to restore drinking water supplies that have been contaminated by MTBE in California and New York.
2 • Expert witness testimony in a case of oil production‐related contamination in Mississippi. • Lead author for a multi‐volume remedial investigation report for an operating school in Los Angeles that met strict regulatory requirements and rigorous deadlines. 3 • Development of strategic approaches for cleanup of contaminated sites in consultation with clients and regulators.

Executive Director:

As Executive Director with Orange Coast Watch, Matt led efforts to restore water quality at Orange County beaches from multiple sources of contamination including urban runoff and the discharge of wastewater. In reporting to a Board of Directors that included representatives from leading Orange County universities and businesses, Matt prepared issue papers in the areas of treatment and disinfection of wastewater and control of the discharge of grease to sewer systems. Matt actively participated in the development of countywide water quality permits for the control of urban runoff and permits for the discharge of wastewater. Matt worked with other nonprofits to protect and restore water quality, including Surfrider, Natural Resources Defense Council and Orange County CoastKeeper as well as with business institutions including the Orange County Business Council.

Hydrogeology:

As a Senior Hydrogeologist with the U.S. Environmental Protection Agency, Matt led investigations to characterize and cleanup closing military bases, including Mare Island Naval Shipyard, Hunters Point Naval Shipyard, Treasure Island Naval Station, Alameda Naval Station, Moffett Field, Mather Army Airfield, and Sacramento Army Depot. Specific activities were as follows:
• Led efforts to model groundwater flow and contaminant transport, ensured adequacy of monitoring networks, and assessed cleanup alternatives for contaminated sediment, soil, and groundwater.
• Initiated a regional program for evaluation of groundwater sampling practices and laboratory analysis at military bases.
• Identified emerging issues, wrote technical guidance, and assisted in policy and regulation development through work on four national U.S. EPA workgroups, including the Superfund Groundwater Technical Forum and the Federal Facilities Forum.

At the request of the State of Hawaii, Matt developed a methodology to determine the vulnerability of groundwater to contamination on the islands of Maui and Oahu. He used analytical models and a GIS to show zones of vulnerability, and the results were adopted and published by the State of Hawaii and County of Maui.

As a hydrogeologist with the EPA Groundwater Protection Section, Matt worked with provisions of the Safe Drinking Water Act and NEPA to prevent drinking water contamination. Specific activities included the following:
• Received an EPA Bronze Medal for his contribution to the development of national guidance for the protection of drinking water.
• Managed the Sole Source Aquifer Program and protected the drinking water of two communities through designation under the Safe Drinking Water Act. He prepared geologic reports, conducted public hearings, and responded to public comments from residents who were very concerned about the impact of designation.
4 • Reviewed a number of Environmental Impact Statements for planned major developments, including large hazardous and solid waste disposal facilities, mine reclamation, and water transfer.

Matt served as a hydrogeologist with the RCRA Hazardous Waste program. Duties were as follows:
• Supervised the hydrogeologic investigation of hazardous waste sites to determine compliance with Subtitle C requirements.
• Reviewed and wrote ʺpart Bʺ permits for the disposal of hazardous waste. • Conducted RCRA Corrective Action investigations of waste sites and led inspections that formed the basis for significant enforcement actions that were developed in close coordination with U.S.

EPA legal counsel.
• Wrote contract specifications and supervised contractor’s investigations of waste sites.

With the National Park Service, Matt directed service‐wide investigations of contaminant sources to prevent degradation of water quality, including the following tasks:
• Applied pertinent laws and regulations including CERCLA, RCRA, NEPA, NRDA, and the Clean Water Act to control military, mining, and landfill contaminants. • Conducted watershed‐scale investigations of contaminants at parks, including Yellowstone and Olympic National Park.
• Identified high‐levels of perchlorate in soil adjacent to a national park in New Mexico and advised park superintendent on appropriate response actions under CERCLA. • Served as a Park Service representative on the Interagency Perchlorate Steering Committee, a national workgroup.
• Developed a program to conduct environmental compliance audits of all National Parks while serving on a national workgroup.
• Co‐authored two papers on the potential for water contamination from the operation of personal watercraft and snowmobiles, these papers serving as the basis for the development of nation‐ wide policy on the use of these vehicles in National Parks. • Contributed to the Federal Multi‐Agency Source Water Agreement under the Clean Water Action Plan.

Policy:

Served senior management as the Senior Science Policy Advisor with the U.S. Environmental Protection Agency, Region 9. Activities included the following:
• Advised the Regional Administrator and senior management on emerging issues such as the potential for the gasoline additive MTBE and ammonium perchlorate to contaminate drinking water supplies.
• Shaped EPA’s national response to these threats by serving on workgroups and by contributing to guidance, including the Office of Research and Development publication, Oxygenates in Water: Critical Information and Research Needs.
• Improved the technical training of EPAʹs scientific and engineering staff. • Earned an EPA Bronze Medal for representing the region’s 300 scientists and engineers in negotiations with the Administrator and senior management to better integrate scientific principles into the policy‐making process.
• Established national protocol for the peer review of scientific documents. 5 Geology:

With the U.S. Forest Service, Matt led investigations to determine hillslope stability of areas proposed for timber harvest in the central Oregon Coast Range. Specific activities were as follows:
• Mapped geology in the field, and used aerial photographic interpretation and mathematical models to determine slope stability.
• Coordinated his research with community members who were concerned with natural resource protection.
• Characterized the geology of an aquifer that serves as the sole source of drinking water for the city of Medford, Oregon.

As a consultant with Dames and Moore, Matt led geologic investigations of two contaminated sites (later listed on the Superfund NPL) in the Portland, Oregon, area and a large hazardous waste site in eastern Oregon. Duties included the following:
• Supervised year‐long effort for soil and groundwater sampling. • Conducted aquifer tests.
• Investigated active faults beneath sites proposed for hazardous waste disposal.

Teaching:

From 1990 to 1998, Matt taught at least one course per semester at the community college and university levels:
• At San Francisco State University, held an adjunct faculty position and taught courses in environmental geology, oceanography (lab and lecture), hydrogeology, and groundwater contamination.
• Served as a committee member for graduate and undergraduate students. • Taught courses in environmental geology and oceanography at the College of Marin.

Matt taught physical geology (lecture and lab and introductory geology at Golden West College in Huntington Beach, California from 2010 to 2014.

Invited Testimony, Reports, Papers and Presentations:

Hagemann, M.F., 2008. Disclosure of Hazardous Waste Issues under CEQA. Presentation to the Public Environmental Law Conference, Eugene, Oregon.

Hagemann, M.F., 2008. Disclosure of Hazardous Waste Issues under CEQA. Invited presentation to U.S.

EPA Region 9, San Francisco, California.

Hagemann, M.F., 2005. Use of Electronic Databases in Environmental Regulation, Policy Making and Public Participation. Brownfields 2005, Denver, Coloradao.

Hagemann, M.F., 2004. Perchlorate Contamination of the Colorado River and Impacts to Drinking Water in Nevada and the Southwestern U.S. Presentation to a meeting of the American Groundwater Trust, Las Vegas, NV (served on conference organizing committee).

Hagemann, M.F., 2004. Invited testimony to a California Senate committee hearing on air toxins at schools in Southern California, Los Angeles.
6 Brown, A., Farrow, J., Gray, A. and Hagemann, M., 2004. An Estimate of Costs to Address MTBE Releases from Underground Storage Tanks and the Resulting Impact to Drinking Water Wells.

Presentation to the Ground Water and Environmental Law Conference, National Groundwater Association.

Hagemann, M.F., 2004. Perchlorate Contamination of the Colorado River and Impacts to Drinking Water in Arizona and the Southwestern U.S. Presentation to a meeting of the American Groundwater Trust, Phoenix, AZ (served on conference organizing committee).

Hagemann, M.F., 2003. Perchlorate Contamination of the Colorado River and Impacts to Drinking Water in the Southwestern U.S. Invited presentation to a special committee meeting of the National Academy of Sciences, Irvine, CA.

Hagemann, M.F., 2003. Perchlorate Contamination of the Colorado River. Invited presentation to a tribal EPA meeting, Pechanga, CA.

Hagemann, M.F., 2003. Perchlorate Contamination of the Colorado River. Invited presentation to a meeting of tribal repesentatives, Parker, AZ.

Hagemann, M.F., 2003. Impact of Perchlorate on the Colorado River and Associated Drinking Water Supplies. Invited presentation to the Inter‐Tribal Meeting, Torres Martinez Tribe.

Hagemann, M.F., 2003. The Emergence of Perchlorate as a Widespread Drinking Water Contaminant.

Invited presentation to the U.S. EPA Region 9.

Hagemann, M.F., 2003. A Deductive Approach to the Assessment of Perchlorate Contamination. Invited presentation to the California Assembly Natural Resources Committee.

Hagemann, M.F., 2003. Perchlorate: A Cold War Legacy in Drinking Water. Presentation to a meeting of the National Groundwater Association.

Hagemann, M.F., 2002. From Tank to Tap: A Chronology of MTBE in Groundwater. Presentation to a meeting of the National Groundwater Association.

Hagemann, M.F., 2002. A Chronology of MTBE in Groundwater and an Estimate of Costs to Address Impacts to Groundwater. Presentation to the annual meeting of the Society of Environmental Journalists.

Hagemann, M.F., 2002. An Estimate of the Cost to Address MTBE Contamination in Groundwater (and Who Will Pay). Presentation to a meeting of the National Groundwater Association.

Hagemann, M.F., 2002. An Estimate of Costs to Address MTBE Releases from Underground Storage Tanks and the Resulting Impact to Drinking Water Wells. Presentation to a meeting of the U.S. EPA and State Underground Storage Tank Program managers.

Hagemann, M.F., 2001. From Tank to Tap: A Chronology of MTBE in Groundwater. Unpublished report.
7 Hagemann, M.F., 2001. Estimated Cleanup Cost for MTBE in Groundwater Used as Drinking Water.

Unpublished report.

Hagemann, M.F., 2001. Estimated Costs to Address MTBE Releases from Leaking Underground Storage Tanks. Unpublished report.

Hagemann, M.F., and VanMouwerik, M., 1999. Potential Water Quality Concerns Related to Snowmobile Usage. Water Resources Division, National Park Service, Technical Report.

VanMouwerik, M. and Hagemann, M.F. 1999, Water Quality Concerns Related to Personal Watercraft Usage. Water Resources Division, National Park Service, Technical Report.

Hagemann, M.F., 1999, Is Dilution the Solution to Pollution in National Parks? The George Wright Society Biannual Meeting, Asheville, North Carolina.

Hagemann, M.F., 1997, The Potential for MTBE to Contaminate Groundwater. U.S. EPA Superfund Groundwater Technical Forum Annual Meeting, Las Vegas, Nevada.

Hagemann, M.F., and Gill, M., 1996, Impediments to Intrinsic Remediation, Moffett Field Naval Air Station, Conference on Intrinsic Remediation of Chlorinated Hydrocarbons, Salt Lake City.

Hagemann, M.F., Fukunaga, G.L., 1996, The Vulnerability of Groundwater to Anthropogenic Contaminants on the Island of Maui, Hawaii. Hawaii Water Works Association Annual Meeting, Maui, October 1996.

Hagemann, M. F., Fukanaga, G. L., 1996, Ranking Groundwater Vulnerability in Central Oahu, Hawaii. Proceedings, Geographic Information Systems in Environmental Resources Management, Air and Waste Management Association Publication VIP‐61.

Hagemann, M.F., 1994. Groundwater Characterization and Cleanup a t Closing Military Bases in California. Proceedings, California Groundwater Resources Association Meeting.

Hagemann, M.F. and Sabol, M.A., 1993. Role of the U.S. EPA in the High Plains States Groundwater Recharge Demonstration Program. Proceedings, Sixth Biennial Symposium on the Artificial Recharge of Groundwater.

Hagemann, M.F., 1993. U.S. EPA Policy on the Technical Impracticability of the Cleanup of DNAPL‐ contaminated Groundwater. California Groundwater Resources Association Meeting. 8 Hagemann, M.F., 1992. Dense Nonaqueous Phase Liquid Contamination of Groundwater: An Ounce of Prevention... Proceedings, Association of Engineering Geologists Annual Meeting, v. 35.

Other Experience:

Selected as subject matter expert for the California Professional Geologist licensing examination, 2009‐ 2011.
9 EXHIBIT D

EXHIBIT E
March 3, 2023
Brandon Straus, Srour & Associates
2447 PCH, Suite 200
Hermosa Beach, CA 90254
[email protected]
Distributed via United States Postal Service and Email
RE: 1100 N. Harbor Drive Application – Determined Incomplete Dear Mr. Straus:

Last August, the City received a “preliminary application” for a housing development that your client 9300 Wilshire, LLC et al proposed for the AES power plant facility site, located at 1100 N. Harbor Drive in the City of Redondo Beach. On February 6, 2023, after the established business hours of the Community Development Department, the City received an email for a formal application for a mixed-use development on the same site.

The project site is located in the “Public and Institutional” land use designation of the City’s General Plan and is zoned under the “P-GP” generating plant zoning district. The Local Coastal Program more specifically categorizes the land use as “Generating Plant”.

As your client’s preliminary application and project application forms acknowledge, residential and commercial uses are not expressly permitted or conditionally permitted uses at the site.

Despite the applicant’s contentions, the application submitted for the proposed project is not entitled to processing under Government Code Section 65589.5 (the Housing Accountability Act). In part this is because nothing in the Housing Accountability Act relieves the City from its obligation to comply with the California Coastal Act, which includes ensuring compliance with the City’s certified Local Coastal Program and Implementing Ordinance. Given that the uses proposed in this application are not permitted uses or even conditionally permitted uses on this site under the Local Coastal Plan, the City cannot process this application without an application to amend the Local Coastal Land Use Plan. Furthermore, while the Housing Accountability Act may limit a local agency’s discretion to disapprove a housing development project or impose conditions on a housing development project in certain instances, the Act does not alter 415 Diamond Street, P.O. Box 270
Redondo Beach, California 90277-0270
www.redondo.org
Community Development Department
Planning Division
tel: 310 318-0637
fax: 310 372-8021
City of Redondo Beach Department of Community Development March 3, 2023 1100 N. Harbor Drive Application – Determined Incomplete Page 2 the application process that applies to develop housing on a particular site. This letter identifies the requisite applications that would need to be submitted for the City to process the application.

In addition, to the extent the applicants are arguing that they are entitled to project approval under Section 65589.5(d)(5), the City disagrees for many reasons. 1 Primarily,
we note that the City adopted an updated Housing Element on July 5, 2022. The City’s Housing Element was adopted in accordance with the procedures in state law and 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. Importantly, the City adopted its housing element prior to the August 15, 2022 submittal of your client’s preliminary application for the proposed project.

This letter is to determine the completeness of the application submitted via email after normal business hours on February 6, 2023. The application submittal was via email and did not directly include attachments. Rather, the email provided a Dropbox link to three files: the application forms, the plan set, and the affordable housing agreement. No hard copies were submitted that day or subsequently for this application. As well, the documents in the Dropbox folder have subsequently been deleted and are no longer available for City access.

The application submittal included the following application forms:
• Application for Coastal Development Permit
• Application for Planning Commission Design Review
• Application for Environmental Assessment
• Storm Water Planning Program Priority Project Checklist • Owner’s Affidavit for 9300 Wilshire, LLC
• Legal Description
Incompleteness Determination – Applications Needed
Since your client’s application is inconsistent with the general plan land use designation, the Local Coastal Program land use category, 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 (RBMC) Coastal Land Use Plan Implementing Ordinance would be needed to complete the application, in addition to the items listed in this letter. Alternatively, should your client wish to develop the mix of residential and commercial uses on this site per the applications submitted thus far, your client must submit the following applications to be considered concurrently with the applications already submitted:

1 While there are many other reasons why the applicant is not entitled to pursue the proposed project under Government Code Section 65589.5(d)(5), we have highlighted only the primary reason here. This letter is intended to inform the applicant of the status of its application with respect to completeness and provide a path forward for processing if the applicant wishes to pursue this project.

City of Redondo Beach Department of Community Development March 3, 2023 1100 N. Harbor Drive Application – Determined Incomplete Page 3 • Zoning Amendment (RBMC 10-5.2504).
• Local Coastal Land Use Plan Amendment (RBMC 10-5.2505) • General Plan Amendment (RBMC 10-2.2505)
• Subdivision/Tentative Tract Map Application (RBMC 10-1) Incompleteness Determination – Coastal Development Permit Application The Coastal Development Permit Application form (checklist) lists a number of submittal requirements. The following have not been met and are required before the application may be deemed complete:

1. Payment of appropriate fees must be made.

2. Mailing labels for residents within 100 feet of subject property must be provided.

3. Proof of ownership must be provided.

4. The application states that for developments subject to approval by the Planning Commission, Harbor Commission, or City Council, “2 complete sets of full-scale Conceptual Drawings and 25 complete copies of reduced 11”x17” drawings, as set forth in the attached Instructions for Graphic Portions, must accompany this application at the time of filing.” As noted previously, no hard copies of the drawings have been submitted. Furthermore, the documents available at the link that was provided as a submittal have been deleted. These documents must be submitted.

5. The application states, “To avoid multiple public hearings, applications should be made concurrently with application for any other permits or approvals for the project requiring a public hearing required for the project.” The applications that were not submitted but are required to consider the land uses proposed include an application for Zoning Amendment, Local Coastal Land Use Plan Amendment, and General Plan Amendment. As well, a Subdivision/Tentative Tract Map Application or a Lot Consolidation Application may be required for the site. These applications are to be provided for consideration of applications concurrently.

6. For the graphic portion of the application, the following were not included in the drawings and must be provided:
a. All boundary lines of subject property fully dimensioned. It was unclear what are the dimensions of the boundary lines. These dimensions need to be clearly detailed on the drawings.
b. Existing trees with a trunk diameter of six inches (6") or greater. There is no key showing where those trees are located or dimension information provided on the drawings. This information needs to be clearly detailed on the drawings.
c. Improvements in the public right of way, including location of sidewalk, parkway, curb, gutter, street width to centerline, and dedications. These details need to be provided.
d. Exterior lighting. These were not specifically shown throughout the site.

Exterior lighting details need to be provided.
e. Although setbacks and spaces between buildings are shown, there is no dimension shown between the easements along Herondo Street and City of Redondo Beach Department of Community Development March 3, 2023 1100 N. Harbor Drive Application – Determined Incomplete Page 4 Residential Building A, Residential Building B, and the Hotel. These need to be provided.
f. Walls, fences, and landscaping and their location, height, and materials.

Although landscaping locations were broadly shown, there were no details of height and materials. This project is subject to the Model Water Efficiency Landscaping Ordinance and must be demonstrated to comply with RBMC 10-5-1900 Landscaping Regulations. As well, wall and fence details must be provided.
g. Trash and recycling facilities. These must be delineated on the drawings. h. The location, dimensions, and design of all signs. Although generally signs are noted on the elevation images, the dimensions and design of all signs are to be provided.
i. A section of the building as it relates to the existing topography and proposed grading where the slope of the site is greater than four (4) feet.

These drawings must be provided where applicable.

7. The application specifically notes, “For detailed information on procedures for Coastal Development Permits, see Article 10, Chapter 5, Title 10 of the Redondo Beach Municipal Code.”
a. Per RBMC Section 10-5.2210(a)(1), “The applicant shall file with the Community Development Department a completed application for a Coastal Development Permit in a form provided by the Community Development Department. Except as provided in Stormwater and Urban Runoff Pollution Control Regulations Chapter 7, Title 5 of the Redondo Beach Municipal Code, the application shall be made concurrently with or following application for any other permits or approvals required for the project by the City of Redondo Beach Municipal Code.” These additional applications shall be made concurrently with the Coastal Development Permit Application:
i. Zoning Amendment (RBMC 10-5.2504).
ii. Local Coastal Land Use Plan Amendment (RBMC 10-5.2505) iii. General Plan Amendment (RBMC 10-2.2505)
iv. Subdivision/Tentative Tract Map Application (RBMC 10-1) b. Per RBMC Section 10-5.2210(a)(2), “The owner of record of the lot or parcel of property which is to be affected by the application shall file an affidavit authorizing the application on a form provided by the Community Development Department.” The preliminary application submitted August 15, 2022 listed 12 different property owners for the site. However, the official project application submittal on February 6, 2023 only had one signature for 9300 Wilshire, LLC. Affidavits authorizing the application shall be provided for all owners of record for the property.2

2 The issue of ownership is material. First, AES Redondo Beach initiated foreclosure proceedings in October 2022 for the property, and a public auction was set for February 22, 2023 which was continued and is currently set for March 24, 2023. This raises a material issue regarding whether the current owners will lose possession of the property in the near future. Second, the owner entity named in the application, 9300 Wilshire LLC, filed a petition for bankruptcy on February 21, 2023. Its continued status as a viable entity is uncertain.

City of Redondo Beach Department of Community Development March 3, 2023 1100 N. Harbor Drive Application – Determined Incomplete Page 5 c. Per RBMC Section 10-5.2210(a)(3), “Upon the filing of an application, the applicant shall pay a fee, as set forth by resolution of the City Council.” Payment of appropriate fees must be made.
d. Per RBMC Section 10-5.2210(b), the following “contents of application” items must be provided. Note that there may be duplicates from what was required on the checklist itself.
i. Existing trees with a trunk diameter of six inches (6") or greater.

There is no key showing where those trees are located or dimension information provided on the drawings. This information needs to be clearly detailed on the drawings.
ii. Improvements in the public right of way, including location of sidewalk, parkway, curb, gutter, street width to centerline, and dedications. These details need to be provided.
iii. Exterior lighting. These were not specifically shown throughout the site. Exterior lighting details need to be provided.
iv. Lot dimensions. These were not specifically shown on the drawings.

Lot dimensions need to be provided.
v. Walls, fences, and landscaping and their location, height, and materials. Although landscaping locations were broadly shown, there were no details of height and materials. This project is subject to the Model Water Efficiency Landscaping Ordinance and must be demonstrated to comply with RBMC 10-5-1900 Landscaping
Regulations. As well, wall and fence details must be provided. vi. Trash and recycling facilities. These must be delineated on the drawings.
vii. The location, dimensions, and design of all signs. Although generally signs are noted on the elevation images, the dimensions and design of all signs are to be provided.
viii. A section of the building as it relates to the existing topography and proposed grading where the slope of the site is greater than four (4) feet. These drawings must be provided where applicable. ix. Proof of ownership. This must be provided.
x. Preliminary approvals by City, State, and Federal agencies. If any were required for this application, those must be submitted.

8. The application specifically notes, as does RBMC 10-5.2210(b)(19), that the contents of the application must include, “Such other data as may be required to demonstrate that the project meets the criteria of Section 10-5.2218 of the Redondo Beach Municipal Code.” RBMC 10-5.2218(c)(1) and (d)(1) address the need for the proposed development to be in conformity with the Certified Local Coastal Program. The applicant expressly acknowledged that residential and commercial uses are not permitted or conditionally permitted. Application materials clearly demonstrate that the project is not in conformity with the Certified Local Coastal Program, including the adopted Coastal Land Use Plan Implementing Ordinance. The following applications would need to be considered with the Coastal Development Permit Application:

City of Redondo Beach Department of Community Development March 3, 2023 1100 N. Harbor Drive Application – Determined Incomplete Page 6 a. Zoning Amendment (RBMC 10-5.2504).
b. Local Coastal Land Use Plan Amendment (RBMC 10-5.2505) c. General Plan Amendment (RBMC 10-2.2505)

9. The applicant stated on the application form that there are no historical structures on the site. The property located at 1100 N. Harbor Drive is most likely historically significant for its industrial architectural style as well as for its significant role in the early economic growth of the City of Redondo Beach. Per The City of Redondo Beach Historic Context Statement (September 1995) the power plant “provided employment opportunities for men living within the Redondo Beach community.

This in itself was important for the city's economic development. However, the presence of the Edison Company in Redondo Beach held additional significance.

By the early 1920s, residential growth through out Southern California was dependent upon the availability of domestic electricity. Any number of residential subdivisions could be planned, but without proper electrical services development plans could not proceed beyond the planning stage. Edison's decisions of where to concentrate its funding for electrical expansion directly impacted a community's ability to achieve its future expansion and development aspirations. As a result, the presence and involvement of Edison in Redondo Beach was seen by the leaders of this community as vital to their ability to obtain a full growth potential and maintain a competitive edge over neighboring cities. It is little wonder that Redondo Beach was the first community in California to establish an "Edison Club." Through out the 1920s and well into the 1940s, this club served as one of the city's most active social organizations and viewed as an important link between the corporation and the community at large” (page 20, footnote 2). There are also references in the Waterfront FEIR from 2016 under the Cultural Resources chapter that discuss the power plant.

Similarly, before any power generation on this property (and European contact), this was a natural salt lake which served the Native American community. Future excavation could unearth artifacts from that era of the very early inhabitants.

The application must provide a description documenting why the response to this question on the application was checked as no historical structures.

10.The application specifically notes a change of use from an allowed use to uses (residential and commercial) not allowed per zoning. This would require an amendment to the Land Use Plan Element of the General Plan, the Land Use Plan Map, the Local Coastal Land Use Plan, and the Zoning for the site.

Incompleteness Determination – Planning Commission Design Review Application The Planning Commission Design Review Application form (checklist) lists a number of submittal requirements. The following have not been met and are required before the application may be deemed complete:

1. The application fee is due at the time of filing the application. Payment of these fees must be made.

City of Redondo Beach Department of Community Development March 3, 2023 1100 N. Harbor Drive Application – Determined Incomplete Page 7

2. The application states, “Two (2) complete sets of full-scale Conceptual Drawings and 25 complete copies of reduced Conceptual Drawings, as set forth the Instructions for Graphic Portions, must accompany this application at the time of filing.” As noted previously, no hard copies of the drawings have been submitted.

Furthermore, the documents available at the link that was provided as a submittal have been deleted. These documents must be submitted.

3. For the graphic portion of the application, the following were not included in the drawings and must be provided:
a. All boundary lines of subject property fully dimensioned. It was unclear what are the dimensions of the boundary lines. These dimensions need to be clearly detailed on the drawings.
b. Existing trees with a trunk diameter of six inches (6") or greater. There is no key showing where those trees are located or dimension information provided on the drawings. This information needs to be clearly detailed on the drawings.
c. Improvements in the public right of way, including location of sidewalk, parkway, curb, gutter, street width to centerline, and dedications. These details need to be provided.
d. Exterior lighting. These were not specifically shown throughout the site.

Exterior lighting details need to be provided.
e. Although setbacks and spaces between buildings are shown, there is no dimension shown between the easements along Herondo Street and Residential Building A, Residential Building B, and the Hotel. These need to be provided.
f. Walls, fences, and landscaping and their location, height, and materials.

These drawings must be provided where applicable.

4. The application form information that needs to be provided includes the following:
a. The owner of record information shall be provided, with corresponding affidavits.
b. Under item C.2. of the application there was missing information on the natural features of the landscaping and the preservation of trees. This information needs to be provided.
c. Under item C.4. the information does not describe the difference in scale.

The comparison needs to be demonstrated.

EXHIBIT F

From: Brian O"Neill
To: CityClerk; Bill Brand; Nils Nehrenheim; Todd Loewenstein; [email protected]; Zein Obagi; Scott Behrendt
Cc: Ryan Patterson
Subject: Agenda Item L.1 Comment Letter
Date: Tuesday, May 9, 2023 2:59:30 PM
Attachments: 1100 N Harbor PSA Appeal Letter - YIMBY Law 5.9.23.pdf Some people who received this message don't often get email from [email protected]. Learn why this is important
CAUTION: Email is from an external source; Stop, Look, and Think before opening attachments or links.

Dear Mayor Brand and Councilmembers:

Please see the attached comment letter submitted on behalf of Yes In My Back Yard Law regarding Item L.1 on today’s City Council agenda, the hearing of an appeal of a notice of incomplete application for a proposed housing development project at 1100 N. Harbor Drive.

Thank you,
Brian
Brian O’Neill
Patterson & O’Neill, PC
Office: (415) 907-9110
Direct: (415) 907-7702
600 California Street, 11th Floor
San Francisco, CA 94108
[email protected]
www.pattersononeill.com
PATTERSON & O’NEILL, PC
600 California Street, 11th Floor
San Francisco, CA 94108
Telephone: (415) 907-9110
Facsimile: (415) 907-7704
www.pattersononeill.com
May 9, 2023

VIA E-MAIL
City of Redondo Beach City Council
415 Diamond Street
Redondo Beach, CA 90277
Re: 1100 N. Harbor Drive
Permit Application Incompleteness Determination Appeal (Council File 23-5887) Dear Mayor Brand and Councilmembers:

Our office represents Yes In My Back Yard Law (YIMBY Law), a California nonprofit dedicated to increasing the accessibility and affordability of housing in California by enforcing state housing laws, and Sonja Trauss, Executive Director of YIMBY Law, in her individual capacity. YIMBY Law supports the appeal by 9300 Wilshire, LLC of the Community Development Director’s determination that the project application for 1100 N. Harbor Drive is incomplete.
9300 Wilshire, LLC submitted an application for a housing development project that includes 2,700 residential units, 300 hotel rooms and 550,00 square feet of office space. The Director erroneously determined that the project application is incomplete because the applicant must submit a request for a Zoning Amendment, Local Coastal Land Use Plan Amendment, and General Plan Amendment. The Director’s incompleteness determination letter stated that “[s]ince your client’s application is inconsistent with the general plan land use designation, the Local Coastal Program land use category, and the zoning applicable to the project site, this application is deemed incomplete.”
The City cannot refuse to process an application based on a purported inconsistency with a general plan or zoning standard. The Permit Streamlining Act (PSA) is informational, not substantive, and the City cannot abuse the PSA process to force the applicant to submit a request for a zone change that the applicant does not want (or need). Notably, the Housing Accountability Act (HAA) provides a process for local governments to issue a consistency City of Redondo Beach City Council
May 9, 2023

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determination that is entirely separate from the PSA completeness determination, which occurs after an application is deemed complete, confirming that the City cannot refuse to accept an application as incomplete based on a code compliance determination.

Moreover, the project was submitted pursuant to Gov. Code § 65589.5(d)(5), commonly referred to as the HAA’s “Builder’s Remedy” provision. The Builder’s Remedy provision states that a City may only disapprove a housing development project if the City finds, based on a preponderance of the evidence, that the project is inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation and the jurisdiction has adopted a revised housing element that is in substantial compliance with state Housing Element Law. The City failed to adopt a housing element in substantial compliance with the Housing Element Law, and therefore the City cannot make the findings necessary to disapprove a Builder’s Remedy project.

Thus, even if the City could refuse to accept an application as complete based on a purported code inconsistency, the City cannot do so here where such a refusal would constitute an unlawful disapproval of the project.

1. The Application Cannot Be Deemed Incomplete Based on a Purported Code Inconsistency.

The PSA requires every agency to compile a list that “shall specify in detail the information that will be required from any applicant for a development project” and “shall also indicate the criteria which the agency will apply in order to determine the completeness of any application submitted to it for a development project.” (Gov. Code § 65940-65941.) If an agency determines that an application is incomplete, the agency must provide the applicant with an exhaustive list of items that were not complete, and the list “shall be limited to those items actually required on the lead agency’s submittal requirement checklist.” (Gov. Code § 65943.) The City has refused to accept the application as complete not based on any missing information detailed in the City’s application checklist, but based upon a finding that the project is inconsistent with general plan and zoning standards. The City’s checklist does not state that an applicant must submit requests for general plan or zoning amendments. On this basis alone, the City cannot find the application incomplete because the City may only determine that an application is incomplete based on “items actually required on the lead agency’s submittal requirement checklist.” (Gov. Code § 65943.)
City of Redondo Beach City Council
May 9, 2023

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Moreover, the purpose of the PSA is “to relieve applicants from protracted and unjustified governmental delays in processing their permit applications.” (Bickel v. City of Piedmont) (1997) 16 Cal.4th 1040, 1046.) Fundamentally the PSA is a procedural law that does not impose substantive requirements. Nothing in the PSA requires an applicant to submit a code compliant project, nor does the PSA authorize an agency to refuse to process an application based on a purported code inconsistency. This is confirmed by the HAA, which includes a separate requirement for agencies to make a written code compliance determination within 30 or 60 days after the date an application is determined to be complete. (Gov. Code § 65589.5(j)(2).) The HAA code compliance determination process would be entirely unnecessary if the PSA allowed an agency to refuse to accept an application based on a finding of inconsistency.

The City’s PSA submittal requirement checklist does not state that general plan and zoning amendment applications are required, and therefore the City cannot find an application incomplete on this basis. Moreover, the City cannot refuse to process accept an application based on a purported code inconsistency.

2. The City Failed to Make Findings Necessary to Disapprove the Project.

The HAA greatly limits a local government’s ability to disapprove a housing development project for very low, low-, or moderate-income households.1 To disapprove such a project, the HAA requires an agency to make one of the findings one of the required findings in Gov. Code § 65589.5(d) and support the finding with a preponderance of the evidence in the record.

Gov. Code § 65589.5(d)(5), commonly referred to as the HAA’s “Builder’s Remedy” provision, is one such finding that authorizes an agency to disapprove a housing development project for very low, low-, or moderate-income households. The Builder’s Remedy provision states that a City may disapprove a project if the City finds that the project is inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation and the 1 The HAA defines a housing development project for very low, low-, or moderateincome households as a project that provides at least 20 percent of the total units to lower income households. (Gov. Code § 65589.5(h)(3).) This project provides 20 percent of the total units to lower income households and therefore qualifies as housing for very low, low-, or moderateincome households.

City of Redondo Beach City Council
May 9, 2023

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jurisdiction has adopted a revised housing element that is in substantial compliance with state Housing Element Law.

The staff report for this appeal purports to make such a finding, arguing that the City adopted an updated Housing Element on July 5, 2022 before the application was submitted. The City’s adopted housing element is not in substantially compliance with the Housing Element Law. As a threshold issue, a jurisdiction does not have the authority to determine that an adopted housing element is in substantial compliance and is required to submit any draft to HCD before adoption for HCD to determine whether a draft is substantially compliant. (Gov. Code § 65585(e).) Thus, if a local agency ignores the proper procedure and adopts a housing element prior to HCD’s review, a local agency has failed to adopt a housing element in compliance with the Housing Element Law. HCD’s confirms this is the case and has provided guidance urging jurisdictions to adopt only after submitting to HCD for review and clearly stating that a jurisdiction is only considered “in compliance” as of the date of HCD’s letter finding an adopted element in substantial compliance.2 Even if the City’s adopted housing element did comply with state law, the City could not be considered in compliance until after HCD completed its review.

In this case, HCD did not issue a letter finding the City’s housing element in substantial compliance until September 1, 2022. Thus, the City was not incompliance until that date. The applicant, however, submitted a preliminary application on August 15, 2022 when the City was still out of compliance with the housing element law. HCD just confirmed in a Letter of Technical Assistance to the City that the City was out of compliance until September 1, 2022, and the applicant submitted an application prior to that date. The City therefore cannot disapprove this project based on Gov. Code § 65589.5(d)(5) because the City cannot make that the City adopted a revised housing element in substantial compliance with state Housing Element Law. If the City wishes to disapprove the project, the City must make one of the other findings in Gov. Code § 65589.5(d), and support the findings based on a preponderance of the evidence, which the City cannot do.
2 HCD, Summary and Clarification of Requirements for Housing Element Compliance, March 16, 2023, available at https://www.hcd.ca.gov/sites/default/files/docs/planning-andcommunity/memos/HousingElementComplianceMemo03162023.pdf City of Redondo Beach City Council
May 9, 2023

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3. The City’s Refusal to Accept the Application as Complete Constitutes an Unlawful Disapproval Under the HAA.

The HAA defines “disapproval” as any instance in which a local agency “[v]otes on a proposed housing development project application and the application is disapproved, including any required land use approvals or entitlements necessary for the issuance of a building permit.” (Gov. Code § 65589.5(h)(6).) The HAA definition of disapproval is explicitly tied to the project application, and any vote that prevents an applicant from obtaining a building permit constitutes project disapproval.

The Director’s completeness determination explicitly states the reason the application was deemed incomplete was based on a finding that the project is inconsistent with general plan and zoning standards. If the City Council were to vote to disapprove the application completeness based on a purported code inconsistency, which is necessary for the issuance of a building permit, this vote would constitute an unlawful disapproval of the project application. If the City Council wishes to disapprove the project, the Council must make one of the required findings in Gov. Code § 65589.5(d), and support such findings based upon a preponderance of the evidence in the record.

Conclusion
The project application cannot be deemed incomplete based on a “missing” general plan or zoning amendment request that is not identified on the City’s application submittal requirement checklist, nor can the City deem an application incomplete based on a purported code inconsistency. The City’s refusal to process the project application, without making any of the required findings, constitutes an unlawful disapproval of the project under the HAA. We demand that you process the housing development project application. If necessary, we are prepared to take legal action to enforce state housing law.

City of Redondo Beach City Council
May 9, 2023

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Very truly yours,

PATTERSON & O’NEILL, PC
____________________________________
Ryan J. Patterson
Attorneys for YIMBY Law and Sonja Trauss

STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

Harbor Drive (Project). The purpose of this letter is to assist the City with its decisionmaking by providing technical assistance related to State Housing Element Law (Gov.

The following are key dates related to the Project and the City’s 6th Cycle Housing Element:
• July 5, 2022 – The City adopted its 6th Cycle Housing Element.

City of Redondo Beach, Mayor and City Council Members

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City of Redondo Beach, Mayor and City Council Members

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The central point of contention between the City and the Applicant is as follows:

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DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

Mike Witzansky, City Manager

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HCD acknowledges that although the City Council adopted a Preferred Land Use Plan in May 2021, the City is still in the process of updating its general plan, including the land use element. This update requires approval by the electorate. The City anticipates placing the issue on the ballot in March 2023 with multiple implementing program actions to be completed subsequent to voter approval. The housing element has been written to be consistent with the Preferred Land Use Plan. Should the ballot measure be disapproved by the electorate, the City must take additional timely actions as outlined in Program 15 (Monitoring the Effect of Article 27 of the City Charter [Measure DD]) to ensure continued compliance with State Housing Element Law.

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• Reasonable Accommodation,
• Definition of Family, and
• Unlicensed Group Homes.

Mike Witzansky, City Manager

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Sincerely,
Paul McDougall
Senior Program Manager
STATE OF CALIFORNIA - BUSINESS CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov

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HCD recommends that a jurisdiction adopt only after receiving a letter from HCD finding the draft meets statutory requirements.

For more detailed information about this process, please visit HCD’s Housing Elements webpage and Housing Elements Building Blocks.

Redondo Beach City CouncilMay 9, 2023

Redondo Beach City Council
May 9, 2023