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September 8, 2022
Scott McKhann, Chair and
Members of the Planning Commission
City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
Re: Saddleback Memorial Medical Center Land Use Entitlement and Development Agreement Applications for Real Property at 654 Camino de Los Mares – State Law Preemption and CEQA Compliance (September 21, 2022 Planning Commission Meeting)
Dear Chair McKhann and Members of the Planning Commission:
We represent Saddleback Memorial Medical Center (“Saddleback”) with regard to all matters pertaining to applications for General Plan Amendment GPA 22-097; Zoning Amendment ZA22-098; Vesting Tentative Parcel Map TPM22-099; Architectural Permit AP22- 101; Site Plan Permit SPP22-103; Conditional Use Permit CUP22-100; and a Development Agreement for the above referenced property (“Property”) for development of a 250 unit senior citizen housing complex and medical office building (“the Project”). The purposes of this letter are to advise you of a) the requirements of state law that preempt various provisions of the City of San Clemente Zoning Code (San Clemente Muni. Code, tit. 17) (“Zoning Code”) otherwise applicable to the Project; and b) compliance of the Project with the California Environmental Quality Act (Pub. Res. Code § 21000, et seq.) (“CEQA”).
I. Government Code Section 65915 Preemption.
As discussed below, various provisions of Government Code Section 65915 preempt a number of requirements of the Zoning Code. As further discussed below, the preemption applies to densities and other development standards that would otherwise apply to the Project.
Government Code Section 65915, subdivision (b)(1) provides, in pertinent part, that “A city . . . shall grant one density bonus and, if requested by the applicant . . . incentives or concessions, as described in subdivision (d), waivers or reductions of development standards, as described in subdivision (e), and parking ratios, as described in subdivision (p), if an applicant . . . seeks and agrees to construct a housing development . . . that will contain at least any one of the following: (B) Five percent of the total units of a housing development for rental or sale to very low income households, as defined in Section 50105 of the Health and Safety Code. [or] (C) A senior citizen housing development, as defined in Section 51.3 and 51.12 of the Civil Code . . ..” The Project qualifies for a density bonus and incentives and concessions, etc. by virtue of the
ATTORNEYS AT LAW
18101 Von Karman Avenue
Suite 1800
Irvine, CA 92612
T 949.833.7800
F 949.833.7878
Gregory W. Sanders
D 949.477.7669
[email protected]
Refer To File # 504163-0001
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facts that it will a) contain thirteen (13) units for rental or sale to lower income households as defined in Health and Safety Code Section 50105 which constitutes five (5) percent of the total number of Project dwelling units; and b) qualify as a senior citizen housing development, as defined in Sections 51.3 and 51.12 of the Civil Code (all of the units, with the possible exception of one (1) manager’s unit, will be rented or sold to qualifying senior citizens and senior citizen households).
Under Government Code Section 65915, subdivision (d)(2)(A), an applicant “shall receive . . . one incentive or concession for projects that include . . . at least 5 percent for very low income households . . ..” As such, the Project qualifies for one (1) incentive or concession. An “incentive or concession” is defined to include “a reduction in site development standards or a modification of zoning code requirements or architectural design requirements . . ..” (Gov. Code §65915, subd. (k)(1).) A development standard is defined to include “a site or construction condition, including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-space requirement, or a parking ratio that applies to a residential development . . ..” (Gov. Code § 65915, subd. (o)(1), italics added.) As part of the land use entitlement application package, Saddleback has submitted application ZA22-098 to change the zoning for the Property from RMF to CC 4. As set forth in Table 17.36.030J of the Zoning Code, the “Height Limitation” development standard in the CC 4 zone is 45’0” Top of Roof; 37’0” Plate; 3 stories (all expressed as one development standard) (“Height Limitation Standard”).
Saddleback has chosen to use its one (1) incentive or concession with respect to the Height Limitation Standard. Thus, in accordance with the preemption requirements discussed in this paragraph, the Project is relieved from compliance with the Height Limitation Standard.
Further, Government Code Section 65915, subdivision (e)(1), provides that “in no case may a city . . . apply any development standard that will have the effect of physically precluding the construction of a development meeting the criteria of subdivision (b) at the densities or with the concessions or incentives permitted by this section.” The Project qualifies for this preemption because a) five (5) percent of its units will be rented or sold to very low income households; and b) it constitutes a development for senior citizens, as discussed above. Further as discussed above, the City is required to grant the Project “waivers or reductions of development standards, as described in subdivision (e), and parking ratios, as described in subdivision (p) . . ..” (Gov.
Code § 65915, subd. (b)(1).) Thus, separate and apart from the one (1) incentive or concession that the Project is entitled to, the City is preempted by state law from applying any development standard that would preclude construction of the Project. We note that Government Code Section 65951, subdivision (e)(1) also provides that “if a court finds that the refusal [by a city] to grant a waiver or reduction of development standards is in violation of this section, the court shall award the plaintiff reasonable attorney’s fees and costs of suit.” II. Project CEQA Compliance.
The Property was included with a number of other potential affordable housing sites analyzed in a Program Environmental Impact Report (“Program EIR”) recently adopted by the City in compliance with CEQA Guidelines Section 15168 in connection with adoption of an update to the City’s General Plan Housing Element. The City has decided to prepare an addendum to the Program EIR for the Project in order to satisfy the requirements of CEQA.
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In a letter to members of the San Clemente City Council and Planning Commission (meeting jointly for a study session on the Project on August 31, 2022) the Sea Pointe Estates Homeowners Association Board of Directors alleged that CEQA requires a public review (presumably the same review afforded environmental impact reports, etc., by the CEQA Guidelines) of the CEQA documents related to the Project which, as discussed above, consists of an addendum. CEQA Guidelines Section 15164, subdivision (c), provides that “An addendum need not be circulated for public review . . ..” The public will have ample opportunity to review and comment on the addendum prior to and at the Planning Commission meeting at which the Project will be considered for approval.
We will be present with the Saddleback team to answer any questions you have regarding the issues addressed in this letter and address any other issues that arise.
Respectfully submitted,
Gregory W. Sanders
Nossaman LLP
GWS:jg
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