CITY COUNCIL
Darrell Steinberg, Mayor
Angelique Ashby, Mayor Pro Tem, District 1
Sean Loloee, District 2
Jeff Harris, District 3
Katie Valenzuela, District 4
Jay Schenirer, Vice Mayor, District 5
Eric Guerra, District 6
Rick Jennings, II, District 7
Mai Vang, District 8
CHARTER OFFICERS
Mindy Cuppy, City Clerk
Susana Alcala Wood, City Attorney
Jorge Oseguera, City Auditor
Howard Chan, City Manager
John Colville, City Treasurer
City Council
Financing Authority
Housing Authority
Public Financing Authority
Redevelopment Agency
Successor Agency
City Hall-Council Chamber
915 I Street, 1st Floor
Published by the Office of the City Clerk
(916) 808-5163
CORRESPONDENCE
Description of Attached: Correspondence received after publishing the Agenda.
For the Meeting of: Tuesday, January 4, 2022, at 5:00 p.m.
Agenda Item: Public Hearing Item 20
20. Rehearing-Third Party Appeal: Curtis Park Village Fuel Center (Noticed 11/24/2021 & 12/23/2021)
File ID: 2021-01331
Location: 3640 Crocker Drive, District 7
Recommendation: Conduct a public hearing and upon conclusion adopt a Resolution adopting an addendum to the original Curtis Park Village EIR and approving the requested entitlements including: 1) Conditional Use Permit (CUP) to operate a new gas station in the Shopping Center (SC-PUD) Zone in the Curtis Park Village Planned Unit Development (PUD); and 2) Site Plan and Design Review to construct a new gas station.
Contact: Marcus Adams, Senior Planner, (916) 808-5044,
[email protected]
, Community Development Department
Sacramento City Council,
RE: PUBLIC COMMENT January 4, 2022 Agenda Item 20. Rehearing-Third Party Appeal:
Curtis Park Village Fuel Center (Noticed 11/24/2021 & 12/23/2021) I would like to submit for your consideration some claims regarding the design and potential impact of the proposed Crocker Village Safeway fuel center that may or may not have been previously investigated. Unless these claims have already been discussed and investigated, I request these be brought up for discussion prior to voting. To the extent they are not, I will voice them during public comment.
Following are my claims:
1.The location of the proposed fuel center is inappropriate and unprecedented for the region
2.The vehicle entrance/exit design for the proposed fuel center is unsuitable and unprecedented for the region
3.The parcel size is too small to allow for any acceptable fuel center design
4.Approval of the proposed fuel center would result in the retail parking lot area becoming unacceptably dangerous for pedestrians
5.The benefits of the proposed fuel center may not outweigh the negative consequences, and the overall concept of the proposal is contrary to elements of the philosophy of the “Blueprint” as developed by SACOG as well as the City’s 2035 General Plan.
Claim #1 is based upon my examination of the designs of the seven nearest existing Safeway fuel centers (maps attached).
The entrance to the Del Paso Road fuel center is directly off a 3-lane road, Del Paso Road.
The entrance to the Manzanita Avenue fuel center is directly off a 3-lane road, Manzanita Ave.
The entrance to the Madison Avenue fuel center is directly off a 3-lane road, Madison Ave.
The entrance to the Folsom Blvd. fuel center is directly off a 2-lane road, Folsom Blvd.
The entrance to the Sunrise Ave. fuel center is directly off a 3-lane road, Sunrise Ave, or a 2- lane road, Cirby Way.
The entrance to the Elk Grove Florin Road fuel center is directly off a 3-lane road, Elk Grove Florin Road.
The entrance to the Douglas Blvd. fuel center is directly off two 3-lane roads, Douglas Blvd and Sierra College Blvd.
With regard to the proposed Crocker Village fuel center, the closest 3-lane road is Highway 99.
This means that the entrance to this fuel center is off a 3-lane road (Highway 99) onto a 2-lane road (Sutterville Road), onto a 1-lane road (Crocker Drive), onto another 1-lane road (10th Avenue), onto another 1-lane road (Buchanan Avenue). This is why I claim the design is unprecedented.
If a wait line were to develop at any of the existing Safeway fuel centers I cite above, traffic could still pass in another lane. However, if a wait line were to develop at the proposed fuel center, traffic would be blocked. This is why I claim the location is inappropriate.
If Safeway could identify an existing fuel center location, in an area of similar population and population density, whose design characteristics closely match those of the proposed fuel center, this could serve as a good comparison to determine suitability.
Claim #2 is also based upon my examination of the designs of the seven nearest existing Safeway fuel centers.
For the Del Paso Road, Folsom Blvd., and Sunrise Avenue fuel center locations, It is not required for vehicles to enter the main retail parking lot in order enter and exit the fuel station.
For the Manzanita Avenue, Madison Avenue, Elk Grove Florin Road, and Douglas Blvd. fuel center locations, the entrance and exit to the fuel center is closed off and completely separate from the main retail parking lot.
All seven of these existing fuel center designs functionally eliminate (or reduce to a minimal level) the chances of fuel center customers and retail shoppers on foot competing for space.
With regard to the proposed Crocker Village fuel center, the design requires fuel center vehicles to either enter or exit the fuel station by driving though much of the main retail parking lot. This is nothing like the design of the seven nearest fuel centers. This is why I claim the design is unprecedented.
Approval of this fuel center would result in fuel center customers driving through the retail parking lot leading to increased competition for space with retail customers on foot. Also, it is foreseeable that should vehicles be permitted to enter the proposed fuel station from the parking lot side, and if a wait line were to form, fuel center customers waiting in line for fuel would block access to some parking spaces, potentially blocking parked vehicles from backing out. For these reasons I claim the design is unsuitable.
Claim #3 is also based upon my examination of the designs of the seven nearest existing Safeway fuel centers.
The seven nearest Safeway fuel centers and associated grocery and retail stores have larger parking lots with more spaces and sit on larger parcels of land. I believe these seven fuel centers are appropriately designed since the lot size allows for a safe and functional design to be possible. The proposed Crocker Village fuel center sits on a parcel that is too small to possibly allow for any design that is both appropriately safe for retail shoppers on foot and free-flowing and minimally congested for drivers.
Claim #4 is something I cannot back up by fact. I bring it up because I reasonably foresee that the consequences of approval of this fuel center would indeed pit driver against pedestrian in the parking lot during congested times. This is likely a worst-case-scenario, but sometimes the worst-case-scenario is the one that ends up taking place. In the event this occurs, I would argue that this would result in unacceptably dangerous conditions for pedestrians.
Claim #5. Some background: The developer benefited from receipt of a financial grant from SACOG. In the Community Design grant application1 for the Sacramento City College/Curtis Park Village2 Pedestrian/Bicycle Overcrossing project dated August 17, 2011, a letter of support is attached dated July 29, 2011 on behalf of the developer. In the letter, Phillip J.
Harvey of Petrovich Development Company wrote to Mr. Gregory Chew of SACOG:
“As you are aware, the Curtis Park Village project is a high density, mixed-use, infill development project which has embraced the doctrine of the “Blueprint” developed by SACOG.”
1.source:
https://www.sacog.org/sites/main/files/file-attachments/06_sacramento__citycollege- curtis_park_pedbike_overcrossing.pdf?1442335347
2. NOTE: “Curtis Park Village” was the original name of the development project. In 2015, the project was renamed “Crocker Village” by the developer citing: “This project was never in Curtis Park, and it was a mistake naming it.”3 and “What’s frustrating for me is that it’s not my fight. It’s turned into scorched earth — mutual destruction between the developer and the community.”4
3,4.sources:
https://www.bizjournals.com/sacramento/news/2015/12/09/petrovich-renames-curtis-pk-vill- adds-dollar-store.html
https://www.bizjournals.com/sacramento/news/2015/12/14/a-scorched-earth-fight-over-curtis- park-village.html
Here are couple excerpts from the SACOG Blueprint5:
“In 2002, the Sacramento region faced a prospective future of worsening congestion—a projected increase of over 50 percent by the year 2025—and increasingly worse air pollution based on current land-use patterns, transportation funding levels, and transportation investment priorities. As its core goal, the Blueprint aimed to support local governments with high-quality data and modeling tools so that decisions regarding future growth and its effects on quality of life issues, such as traffic congestion and air pollution could be made with the best information available.”
“Community design can help encourage people to walk, ride bicycles, ride the bus, ride light rail, take the train, or carpool. Streets can be designed to include dedicated bike lanes or special lanes for bus rapid transit. The more people walk, bicycle, or ride the bus, the less they need to drive alone in their cars. Less driving alone means less congestion and less air pollution.”
5.source:
https://www.sacog.org/sites/main/files/file-attachments/blueprint2010.pdf?1626730492 I agree with the developer that there would be benefits to having a fuel center installed at this location, however it is also imperative to weigh those benefits against legitimate concerns and potential negative consequences. I also agree with the developer that many elements of the overall Crocker Village development project are indeed consistent with the Blueprint - but not the fuel center. Given that the developers claim they have embraced this Blueprint, I would assume they are familiar with the contents. My question to the developer with regard to the proposed fuel center would be: Do you continue to embrace the Blueprint? Do you believe there are any elements of the fuel center concept that are at odds with the Blueprint? If so, what are they, and how do the benefits outweigh those?
In conclusion, it could be argued that people are going to buy the same amount of gas and drive their cars for the same amount of time regardless of whether a fuel center at Crocker Village is installed or not. Although City staff are recommending approval of the fuel center, City Council has the responsibility to also look at the bigger picture including compatibility with the City’s 2035 General Plan.
SACOG’s Blueprint as well as City’s 2035 General Plan are calling for ways to promote less traffic, less congestion, and less air pollution. Of all the possible ways to develop a parcel in Crocker Village, I find it difficult to think of anything more contrary to these concepts than approval of an additional unnecessary fuel center.
Rob Millar
24TH ST
(attachments)
David P. Lanferman
Direct Dial: (650) 320-1507
E-mail: [email protected]
December 20, 2021
R u t a n & T u c k e r , L L P | 4 5 5 M a r k e t S t r e e t , S u i t e 1 8 7 0 S a n F r a n c i s c o , C A 9 4 1 0 5 | 6 5 0 -263 -7 9 0 0 | F a x 6 5 0 -263 - 7 9 0 1 O r a n g e C o u n t y | P a l o A l t o | S a n F r a n c i s c o | w w w . r u t a n . c o m 2783/032881-0002
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VIA E-MAIL AND
FIRST CLASS MAIL
Tom Pace, Director,
Department of Community Development
CITY OF SACRAMENTO
300 Richards Boulevard, 3rd Floor
Sacramento, CA 95811
E-Mail: [email protected]
Mindy Cuppy, City Clerk
CITY OF SACRAMENTO
915 I Street
New City Hall
Sacramento, CA 95814
E-Mail: [email protected]
Leslie Walker, Senior Deputy City
Attorney
CITY OF SACRAMENTO
915 I Street, 4th Floor
Sacramento, CA 95814-2608
E-Mail: [email protected]
Re: City Council Agenda — January 4, 2022
Crocker Village Conditional Use Permit P14-036
Dear Ms. Cuppy:
We respectfully take this opportunity to respond to the November 29, 2021, letter from Mr.
Soluri demanding that the City Council hearing on this matter be postponed until January 4, 2022, and questioning the City ’s Revised CEQA Addendum prepared in connection with the City Council’s anticipated rehearing of this matter.
To the extent that Mr. Soluri’s letter appears to vaguely challenge the propriety of the City preparing an addendum (the “Revised Addendum”) to the City’s previous environmental review documents and questions the adequacy of the City ’s Revised Addendum, we write to support the Staff’s well-founded approach and to provide legal authority demonstrating that there is no merit to any of the issues raised by Mr. Soluri .
As City Staff properly recognized, the California Environmental Quality Act ( “CEQA”) explicitly calls for preparation o f an addendum to a previously approved EIR in circumstances such as these — contrary to the arguments in Mr. Soluri ’s letter. See, CEQA Guidelines § 15164(a) [“the lead agency ... shall prepare an addendum....”]; Save Our Heritage Organisation v. City of San Diego (2018) 28 Cal. App. 5th 656, 666 ( “SOHO”) [affirming the city ’s use of an addendum to a prior EIR, rather than requiring new “supplemental environmental review, ” for revisions to a project to restore pedestrian and park uses to a large urban park]; Citizens Against
Mindy Cuppy, City Clerk
Leslie Walker, Senior Deputy City
Attorney
Tom Pace, Director,
December 20, 2021
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Airport Pollution v. City of San Jose (2014) 227 Cal.App.4th 788, 797, 802 [city properly relied on multiple addenda to a 20-year old EIR]. )
Here, the City Council properly certified a comprehensive EIR for the Crocker Village Project in 2010, which has never been challenged. The Project approvals and the certified environmental review provided for a wide range of possible retail and commercial land u se, and provided for a possible gas station use as a conditionally -permitted land use. To the very minor extent that the current CUP application may be deemed to involve any “change” to the Project by inclusion of a proposed gas station, use of an addendum to confirm the continuing applicability of the p reviously certified EIR is clearly authorized and entirely appropriate , since there is no substantial evidence of any environmentally -significant change in the Project, or any significant new information requiring “major revision ” to the prior EIR . (See, CEQA, Pub. Res. Code § 21166; CEQA Guidelines, 14 Cal. Code Regs. § 15162; § 15164 [directing use of an addendum]; Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 949 (“Friends”) [affirming authority to rely on an addendum to a previous CEQA “mitigated negative declaration” for review of revised project].) The Soluri letter also argues – without legal authority on point – that various subsequently- enacted “updates to CEQA” should somehow preclude the City ’s ability to use an addendum to the certified EIR for consideration of the CUP application. This Soluri argument, however, overlooks the fact that the City is properly applying the existing law (i.e., CEQA Pub. Res. Code § 21166; CEQA Guidelines, 14 Cal. Code Regs. § 15162; § 15164) which directs the use of an addendum to the EIR, and which prohibits the City from requiring any supplemental or subsequent CEQA review unless ther e is substantial evidence showing exceptional .circumstances requiring “major revisions” to the certified EIR. The Soluri letter fails to make any such showing, and the vague references to “updates to CEQA ” are not the type of exceptional circumstances al lowing supplemental review.
The Soluri letter fails to demonstrate any grounds for detailed supplemental review. Its few quotes from some cases in distinct situations vaguely urging consideration of new statutes or ordinances on rehearing of this application are irrelevant to the validity of the Revised Addendum, and are not on point to this case. The applicable rule on the facts of this case requires the Council to consider only the laws in effect at the time of the prior hearing. (E.g., Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App. 3d 183; Ross v. City of Yorba Linda (1991) 1 Cal.App.4th 954 [city may not apply newly-enacted local ordinances or policies that would frustrate a land use application on remand following a previous denial of the application].. There is no question that the City Council must apply the local laws as they existed at the time of the prior hearing on the application; so the cases cited in the Soluri letter do not support any objections to the City ’s Revised Addendum, or to the Council’s favorable consideration of this application.
Mindy Cuppy, City Clerk
Leslie Walker, Senior Deputy City
Attorney
Tom Pace, Director,
December 20, 2021
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CEQA generally prohibits “supplemental review” after an EIR has been certified.
To the extent that Mr. Soluri ’s letter appears to be demanding that the City prepare some detailed new “supplemental review” of the previously certified -- and unchallenged – 2010 Project EIR, such demands are contrary to CEQA and the appellate cases applying – and limiting -- CEQA in similar situations. The Soluri letter does not cite any apt case law supporting his demand.
To the contrary, CEQA, particularly Public Resources Code Section 21166, is designed to limit the circumstances under which subsequent or supplemental environmental impact reports (“EIRs”) may be prepared, balancing the importance of the interests of finality and efficiency against repetitive environmental review. As the Supreme Court explained in Friends of the College of San Mateo Gardens , supra, 1 Cal.5th 937, 949: “[S]ection 21166 comes into play precisely because in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired, and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process.” Public Resources Code section 21166, and the CEQA Guidelines, make clear that a further EIR is not allowed, much less required, unless there is evidence demonstrating specific exceptional circumstances requiring “major revisions ” to the previous EIR because of “new significant environmental effects or a substantial increase in the severity of previously identified significant effects.” (14 Cal. Code Regs. § 15162(a)(1).) . “Section 21166 ‘restrict[s] the powers of agencies ‘by prohibiting [them] from requiring a subsequent or supplemental environmental impact report” unless the stated conditions are met. ’” (SOHO, supra, 28 Cal. App. 5th at 667 [emph. added].) “Section 21166 effectively creates a presumption against further [ ‘supplemental’] environmental review after a project has been previously subjected to environmental review. (Moss v. County of Humbolt (2008) 162 Cal.App.4th 1041, 1049 ; see § 21167.2 ; Friends, supra , 1 Cal.5th at p. 956 [EIRs are entitled to a presumption of finality once adopted].)” (Ibid. p. 666.) The alleged “changes” to the project, changed circumstances, and new information referred to in section 21166 warrant a subsequent EIR only if “they involve new significant environmental effects, substantially more severe significant environmental effects, or newly feasible or different mitigation measures which would substantially reduce one or more significant environmental effects. (Guidelines, § 15162, subd. (a).)” (SOHO, supra, 28 Cal.App.5th at 666.) To the limited extent that the current application might be considered to include any “changes” to the approved Project, none of them are of such magnitude as to warrant preparation of a subsequent EIR. Rather, they are similar to, or far less environmentally-significant, than the kinds of minor changes that courts have found do not trigger preparation of a subsequent EIR. For example, in Concerned Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4th 1301, 1318, a
Mindy Cuppy, City Clerk
Leslie Walker, Senior Deputy City
Attorney
Tom Pace, Director,
December 20, 2021
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“change” to the approved project shifted 100 residential units from one location within a transit center to another location – but was still deemed not to require preparation of a supplemental EIR where the previously-approved project contemplated the change and there was no evidence that previously-studied impacts on the environment would be significantly increased. (Id.) The Revised Addendum accurately demonstrates, with appropriate references to substantial evidence in the record, that none of the limited exceptions to Pub. Res. Code § 21166 are raised by the current CUP application. (See, Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1136 –1142 [explaining why even some new technical studies and minor project changes did not trigger the need for additional detailed environmental study].)
Use of an Addendum to the prior EIR is authorized and appropriate.
The Soluri letter erroneously implies that City Staff ’s preparation of the Revised Addendum to the approved Project EIR is somehow improper, but cites no legal authority for such an argument – and is flatly wrong. Use of an addendum to a previously certified EIR, such as that prepared by City Staff in thi s case, is expressly authorized and directed by Section 15164 of the CEQA Guidelines, which provides: “(a) The lead agency or a responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in [Guidelines section] 15162 calling for preparation of a subsequent EIR have occurred. [¶] … [¶] (c) An addendum need not be circulated for public review but can be included in or attached to the final EI R … . [¶] (d) The decision -making body shall consider the addendum with the final EIR … prior to making a decision on the project. [¶] (e) A brief explanation of the decision not to prepare a subsequent EIR pursuant to [Guidelines section] 15162 should be included in an addendum to an EIR, the lead agency ’s required findings on the project, or elsewhere in the record. The explanation must be supported by substantial evidence.” The California Resources Agency’s discussion of Guidelines Section 15164 states it was “designed to provide clear authority for an addendum as a way of making minor corrections in EIRs … w ithout recirculating the EIR … ” and further explains the Guideline was adopted ... to encourage other agencies to use the device [an addendum] as a way of making minor corrections in EIRs without recirculating the EIR.” (SOHO, p. 666.) The Soluri letter errs by mischaracterizing and criticizing the City ’s current Revised Addendum as though it is being presented as merely an addendum to the addendum prepared in 2015. That is an erroneous distortion of the current Revised Addendum, however, which clearly and repeatedly states that it is a “Revised Addendum to a certified Environmental Impact Report
Mindy Cuppy, City Clerk
Leslie Walker, Senior Deputy City
Attorney
Tom Pace, Director,
December 20, 2021
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(EIR”)” for the Project originally known as Curtis Park Village, and the EIR certified for that project in April 2010 (Resolution No. 2010-174).
That certified EIR was never challenged, and it therefo re remains appropriate to use an Addendum to that EIR to address minor revisions to the Project (CEQA Guidelines § 15164.) Purported “updates to CEQA” do NOT require new supplemental CEQA review.
There is no merit to the Soluri letter’s attack on the comprehensive and current Revised Addendum, nor to the argument that the City “consultants must ... perform supplemental review of the 2010 Curtis Park Village EIR ... and base that review on new facts, available information and applicable law presently applicable [sic]....” To the contrary, the Revised Addendum is fully consistent with the “applicable law” under CEQA.
First, the argument in the Soluri letter misstates, or ignores, the express text of Pub. Res.
Code Section 21166 [the applicable state statute -- “law as it exists”] describing the three limited exceptions to the prohibition against supplemental CEQA review. The evidence and analysis in the City ’s Revised Addendum makes clear that none of the three limited exceptions in PRC § 21166 are applicable. The City in preparing the Revised Addendum did properly apply “the law in existence” at this time, i.e., Pub. Res. Code Section 21166 and CEQA Guidelines §§ 151262 and 15164 – which continue to prohibit any detailed subsequent or supplemental review, with three limited exceptions which do not apply.
Second, the Soluri letter erroneously conflates alleged “updates to CEQA ” with “new facts” raising significant new, previously -unstudied, impacts on the environment that might warrant supplemental review.1 It notably fails to cite any legal authority holding that purported changes or “updates to CEQA ” are an exception to the rule of law as it exists prohibiting subsequent or supplemental reviews. It would be unreasonable and contrary to CEQA’s declared policy of protecting the interests of finality to require that previously-certified EIRs must undergo detailed new supplemental review just because there may have been an alleged update to the CEQA laws. The Soluri argument is not supported by any citation to case law, and is contrary to the Supreme Court ’s holding in Friends, supra, explaining that subsequent review of certified CEQA documents should be “rare.”
Third, none of the alleged updates to CEQA mentioned in the Soluri letter raise the type of new “facts” or “information” about environmental impacts that might require, or even allow for,
1 California courts have historically recognized the distinction between “facts” and “laws” in many situations. (E.g., Vu v. Prudential Property & Cas. Ins. (2001) 26 Cal.4th 1142, 1151.)
Mindy Cuppy, City Clerk
Leslie Walker, Senior Deputy City
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Tom Pace, Director,
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supplemental review. (See, e.g., Citizens for Responsible Equitable Envt ’l Dev. v. City of San Diego (2011) 196 Cal.App.4th 515, 531 [holdin g that “new information” on the effect of greenhouse gas ( “GHG”) on climate, or climate change, was known or could have been known long before City approved a 1994 FEIR, and does not require preparation of a further or supplemental EIR]; see also, Citizens Against Airport Pollution v. City of San Jose (2014) 227 Cal.App.4th 788, 807 [upholding the City ’s use of multiple CEQA addenda to a 1997 EIR and finding that information about the environmental impact of GHG emissions and climate change was known since the 1970s, well before 1997 EIR and 2003 SEIR].) The Revised Addendum properly evaluates the Project under the applicable laws.
The City’s Revised Addendum to the Project EIR certified by Council properly evaluated the CUP application under ap plicable state and local laws, including the current and applicable limits of Pub. Res. Code Section 21166. The Soluri letter acknowledges that California appellate courts have frequently held that “the ... ordinance in effect at the time of the Council ’s prior decision [denying the permit] should apply to the future development of the project, absent some state statute dictating otherwise ” [emphasis by Soluri, and quoting the 1996 decision in Clark v City of Hermosa Beach , and other cases cited in Clark]. The Soluri letter does not identify any “state statute dictating otherwise ” so the rehearing of this application is properly subject only to the laws in effect at the time of the previous proceedings. See Clark, supra; see also Ross v. City of Yorba Linda, supra, 1 Cal.App.4th at 969, where the Court of Appeal held .
The Soluri letter erroneously implies that the Revised Addendum, and the Council ’s rehearing on the CUP application, should address vaguely -referenced “new laws,” but does not identify any state statute s, other than “updates to CEQA, ” nor any local ordinances, that are supposedly applicable. To the contrary, the weight of authority (including the cases cited in the Soluri letter) holds that on re-hearing of this CUP application, the City’s ordinances and policies which were in effect at the time of the prior hearing remain applicable . In Ross v. City of Yorba Linda (1991) 1 Cal.App.4th 954, 969, for example, the Court held that the City could not lawfully apply a newly-enacted ordinance to the rehearing of a previously-denied application. The Soluri letter does not argue to the contrary.
The appellate decision in Clark (quoted by Soluri) followed the rule of other California cases broadly holding that a local ordinance in effect at the time of an earlier (reversed-on-appeal) council action should remain applicable to the reconsideration or rehearing of the same matter -- rather than a new more restrictive ordinance or statute adopted after “the final administrative decision.”
Mindy Cuppy, City Clerk
Leslie Walker, Senior Deputy City
Attorney
Tom Pace, Director,
December 20, 2021
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The Court of Appeal in Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App. 3d 183, 201-202, stated the rule of law, generally requiring application of the laws in effect at the time of the initial administrative action on a permit application, recognizing that the time of enactment of the new law relative to the permit application is a critical point of distinction:
[A]t bench, the new height ordinance was not enacted until after final administrative decision. Thus City should have applied the old ordinance and the trial court should have tested the propriety of City’s conduct under the ordinance existing at the time of the administrative appellate review by city council. The amendment having been passed after final administrative decision cannot support denial of appellant ’s application for permit nor the petition for writ of mandamus in the trial court. ( Keizer v. Adams, 2 Cal.3d 976, 980; McCombs v. Larson, 176 Cal.App.2d 105; in accord Munns v. Stenman, 152 Cal.App.2d 543; see 169 A.L.R. 585, indicating that this view is in accord with the American weight of authority ; County of San Diego v.Williams, 126 Cal.App.2d 804.)
Thus, contrary to the assertion of the Soluri letter, this rule calling for the City to apply the local ordinances “existing at the time of the administrative appellate review by the city council” is not “a narrow exception ” to a purport ed general rule otherwise allowing application of newly - enacted ordinances on rehearing. Nor does it depend solely on a showing of “bad faith” intent to frustrate a particular project. S ubsequently-enacted ordinances intended to frustrate a prior application are invalid and not applicable on rehearing, 2 but that is not the only circumstance precluding application of new law on a rehearing.
Even the case quoted in the Soluri letter (Selby Realty v. City of San Buenaventura (1973) 10 Cal.3d 110, 125, does not support such a broad mis-statement of the law , as pointed out in Gabric v. City of Rancho Palos Verdes, supra, 73 Cal.App. 3d 183, 201-202:
At footnote 11, the [ Selby] court notes: The cases holding that an appellate court will apply the rule in exi stence at the time of deciding the appeal appear to be inconsistent with another line of authority holding that if an applicant complies with all the requirements for a building permit at the time the application is made he is entitled to a permit even though the law has been changed prior to the decision on appeal. [Citations.] These two apparently conflicting lines of cases have been distinguished on the ground that the change in the ordinance is deemed inapplicable
2 E.g., Keizer v. Adams (1970) 2 Cal.3d 976; Ross v. City of Yorba Linda, supra, 1 Cal.App.4th at 969; Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App. 3d 183; Munns v. Steadman (1957) 152 Cal.App.2d 543.
Mindy Cuppy, City Clerk
Leslie Walker, Senior Deputy City
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Tom Pace, Director,
December 20, 2021
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if its enactment stemmed from an attempt to frustrate a particular developer’s plans. [Citations.]” (At p. 126.)
Of course, Selby does not hold that an attempt to frustrate a particular developer’s plans is the only criterion or reason why a subsequent change in the law should not be applied. That is simply the assessment by Selby of the distinguishing feature between the two lines of cases and is but a repetition of one consideration made in Russian Hill Improvement Assn. v. Board of Permit Appeals, supra , 66 Cal.2d
34.) There are other circumstances which should be considered.
As explained by the Court of Appeal in Gabric, above, the rule precluding application of newly-enacted ordinances to the rehearing of a land use application does not depend on a showing that the newly-enacted ordinance was adopted in a “bad faith” effort to frustrate the applicant ’s plans. For example, in the Clark case the Court did not mention “bad faith” but simply explained that a newly-enacted restrictive ordinance was inapplicable on rehearing because it would leave the applicant “without a remedy” for the City’s previous mishandling of the administrative appeal. (48 Cal.App.4 th at 1177, fn. 26.)
See also, Schneider v. California Coastal Comm. (2006) 144 Cal.App.4th 1339, 1342, where the Court of Appeal (citing Clark) remanded for a new hearing, and expressly directed that “on rehearing, Coastal Commission may not consider ” unauthorized view-protection goals – without any implication that the Commission had acted “in bad faith.”
For all of the foregoing reasons, as well as the reasons provided in the Revised Addendum itself, it is respectfully submitted that the letter from Mr. Soluri fails to demonstrate any error in the use of an addendum to the extensive EIR that was properly certified by the Council in 2010, or any inadequacies in the content of the current comprehensive Revised Addendum. It is therefore respectfully requested that the Council favorably consider and approve the Revised Addendum in connection with the rehearing of this matter. Thank you for your consideration.
RUTAN & TUCKER, LLP
David P. Lanferman
DPL