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Last week, in the middle of the night, she pulled all of her tubes off her nose and soon we were having a conversation about whether she would need to go into surgery in order to implant a feeding contraption.
None of this would have happened if Regional's Trauma center had not been gutted, and HCA actually focused on providing patient care.
Please support deferring this item to enable proper conversations with community members and in-depth staff analysis.
Regards,
Rosie Zepeda, MS Ed.
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November 5, 2024
(“SB”) 1953 (codified as California Health and Safety Code §§ 130000 et seq.). Failure to meet this deadline will result in Good Samaritan closing.
The Project will not only bring Good Samaritan into conformance with SB 1953, but also will modernize the hospital to allow patient rooms to fit modern medical equipment, comply with the Americans with Disabilities Act, and upgrade the central utility plan to meet current medical demands. The Project will be constructed in three phases to ensure no disruption in providing critical services. The most critical of the phases is Phase 1, which is necessary to meet SB 1953 and includes demolishing the existing bed tower to construct a new Structural Performance Category (SPC) 5-rated hospital wing. Because Phase 1 of the Project is expected to take approximately 5.8 years, there is no time to delay. (Good Samaritan Project Draft Environmental Impact Report (“Draft EIR”), pp. ES-1–ES-2.)
2. Good Samaritan And The City Conducted Community Outreach Councilmember Ortiz suggested that the Project required more community outreach. The City has offered multiple opportunities for the public to comment on the Project, including two meetings in 2022 and a public scoping meeting. In addition, the public had an opportunity to comment on the Notice of Preparation and the Draft EIR, which the City circulated for 46 days specifically to solicit public feedback. Tellingly, the City received only seven comments on the Draft EIR, with none from Good Samaritan’s immediate neighbors.
Other than delaying the Project, which is an effective denial due to the deadline imposed by SB 1953, it is unclear why Councilmember Ortiz wants more community outreach. Almost no commenter at the Planning Commission hearing expressed concerns about the Project and the Planning Commission itself expressed none. Thus, it is unlikely that additional community outreach would materially alter the Project, particularly when Good Samaritan’s design already reflects community feedback as seen in the proposed transportation improvements and thoughtful landscaping.
3. The Planning Commission’s General Plan Inconsistency Findings Are Not Based On Substantial Evidence
At its hearing on October 23, 2024, the Planning Commission recommended that the City Council deny the Project based on alleged inconsistencies with General Plan policies. As discussed below, the Planning Commission’s inconsistency findings are not based on substantial evidence or any attributes of the Project, and instead improperly rely on the identity of the Project’s owner.
General Plan consistency is not judged on a policy-by-policy basis. (See General Plan, p. 1-4 [policies “must be considered together when making planning decisions”].) Instead, a project is consistent with the General Plan, if, considering all its aspects, the project will further the objectives and policies of the General Plan and not obstruct their attainment. (Pfeiffer v. City November 5, 2024
of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1563.) Perfect conformity with the General Plan is not required. (San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498, 514.) Courts have recognized that “it is nearly, if not absolutely, impossible for a project to be in perfect conformity with each and every policy set forth in the applicable plan . . . . It is enough that the proposed project will be compatible with the objectives, policies, general land uses and programs specified in the applicable plan.” (Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1510–1511.) Conformity determinations must be based on the actually proposed project and not conjecture or speculation about how the project may unfold. (Cf. Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1119 [emphasizing that a project is not evaluated based on “unapproved activities that opponents assert will be necessary”].) It is an abuse of discretion for the decision-making body to rely on findings not supported by substantial evidence for its inconsistency determination. (Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 717.)
a. The Project is Consistent with the General Plan
Here the Planning Commission fixated on the Project’s alleged noncompliance with Policies ES-6.1 and ES-6.3 and failed to consider the General Plan as a whole. (As discussed in Section 3.b, below, the Project is consistent with these two policies.) When the General Plan is considered as a whole, the Project is consistent with it, including the applicable land use designation and numerous objectives and policies.
The Property has a General Plan land use designation of Neighborhood/Community Commercial (“NCC”). The NCC land use designation allows for commercial uses serving communities in neighboring areas, including general offices and hospitals. (General Plan, p. 5-
10.) The Project, which proposes to maintain and expand the existing hospital uses, would continue to serve the neighboring communities and City at large by providing critical medical care for the City’s residents. The Project’s hospital uses are also expressly called out as permitted under the General Plan’s land use description.
Further, as described in the Draft EIR, the Project is consistent with numerous General Plan policies. (E.g., Draft EIR, pp. 4.10-9–4.11-10.) Exhibit 1, attached hereto, provides a more robust analysis of the Project’s consistency with the General Plan. b. The Project is Consistent with General Plan Goal ES-6 and Its Supporting Policies
General Plan Goal ES-6 encourages facilities that “[p]rovide for the health care needs of all members of the San José community.” (General Plan, p. 4-42.) The Project, which will allow Good Samaritan to continue providing for the health care needs of all members of the San Jose community after 2030 supports this goal.
November 5, 2024
Goal ES-6 is supported by 14 policies, six of which were raised during the Planning Commission hearing. Although the Planning Commission mainly relied on General Plan policies ES-6.1 and ES-6.3 to justify its recommendation, in written comments submitted just prior to the Planning Commission hearing and during oral comments at that meeting, representatives from certain organizations also suggested that the Project did not comply with Policies ES-6.6, ES-6.7, ES-6.10, and ES-6.12. For completeness, we address each policy below.
i. Policy ES-6.1
Policy ES-6.1 states: “Facilitate the development of new and promote the preservation and enhancement of existing health care facilities that meet all the needs of the entire San Jose community.”
Consistent with Policy ES-6.1, the Project both facilitates the development of new and promotes the preservation and enhancement of an existing health care facility—the Good Samaritan Hospital. The Project provides necessary seismic upgrades, modernizes the hospital to better serve the community, and increases healthcare services with new and medical office buildings. Without the Project, Good Samaritan will shutter in 2030, which is inconsistent with Policy ES-6.1.
The Planning Commissioners and commenters focused on the last few words of Policy ES-6.1 regarding “all the needs of the entire San Jose community.” They claimed that because Good Samaritan’s parent, HCA Healthcare, choose to transition an inpatient psychiatric facility in Los Gatos to an outpatient facility that could serve more patients and sell Regional Medical Center to the County of Santa Clara, HCA Healthcare (not the Project) was not meeting all the needs of the entire San José community.
First, for a jurisdiction as large as the City, no one healthcare facility can meet the needs of the entire community. But if the Project is denied and Good Samaritan closes, then the community members around Good Samaritan would lack easy access to acute care facilities.
Second, and more importantly, HCA Healthcare’s decisions regarding the Unrelated Facilities have nothing to do with whether the Project will help to meet the needs of the San José community and therefore is not substantial evidence about the Project that could support an inconsistency determination. (Cf. Hilltop Group, Inc. v. County of San Diego (2024) 99 Cal.App.5th 890, 925 [substantial evidence does not include “lay observations unrelated to similar projects in the past”].) As discussed above, the Project would serve the needs of the community by allowing Good Samaritan to offer critical acute care after January 1, 2030, as well as by enabling Good Samaritan to modernize its care.
November 5, 2024
ii. Policy ES-6.3
Policy ES-6.3 states: “Recognizing that health care is a regional issue that crosses jurisdictional boundaries, work with the County, non-profits, and other governmental and nongovernmental organizations to ensure that adequate, affordable health care facilities are available for all San José residents.”
Consistent with Policy ES-6.3, the Project helps the City ensure that adequate, affordable health care facilities are available for all City residents. The Project allows Good Samaritan to continue to operate an acute care hospital in the City that provides free or discounted care to uninsured patients who earn up to 400 percent of the federal poverty level (often called “Charity Care”), consistent with California law. In 2023 alone, Good Samaritan provided $127 million in Charity Care. Project denial would result in closure of Good Samaritan, leaving not only City residents, but also residents of neighboring cities, such as Los Gatos, without adequate health care facilities, which would have detrimental effects on the well-being of the region.
The Planning Commission and commenters did not provide any reason to find the Project inconsistent with Policy ES-6.3. Specifically, the Planning Commission rested its inconsistency finding on the Unrelated Facilities, which have nothing to do with the Project. The Project is a massive investment in the community to ensure that Good Samaritan remains available for all and nothing in the record suggests Good Samaritan would undermine that investment. iii. Policy ES-6.6
Policy ES-6.6 states: “Encourage the location of health care facilities and hospitals in areas that are underserved and lack adequate health care facilities.” Consistent with Policy ES-6.6, the Project ensures that the area around Good Samaritan remains served by a good health care facility and does not become an area that is underserved and lacks adequate facilities. Without the Project, Good Samaritan will be forced to close, leaving a large swath of City residents without adequate health care facilities.
Commenters urged the Planning Commission to find the Project inconsistent with this policy because “HCA has a pattern of divesting in these specific underserved areas in San José,” citing to the Unrelated Facilities that have nothing to do with the merits of the Project. With the Project, Good Samaritan is proposing to invest heavily to allow Good Samaritan to not just continue but to improve its operations. Further, as noted above, although the area where Good Samaritan exists is not currently underserved, without the Project, it would become underserved.
November 5, 2024
iv. Policy ES-6.7
Policy ES-6.7 states: “Discourage health care facilities or hospitals in areas where their operations can have adverse impacts on surrounding uses or where surrounding uses can have adverse impacts on health care facility patients, workers, or visitors.” Consistent with Policy ES-6.7, the Project is located on a site that has had a hospital for decades. To better serve patients, workers, and visitors, the Project is located adjacent to a freeway, which reduces cut-through traffic compared to facilities located in the center of residential neighborhoods. The Good Samaritan campus also provides a buffer between the freeway and residential uses. The Project would improve Good Samaritan’s circulation, aesthetics, and landscaping to further reduce impacts on the immediately surrounding community. The uses surrounding Good Samaritan mainly consist of other medical services, offices, and residential uses, none of which emit toxics or would otherwise cause adverse impacts on the hospital, patients, workers, or visitors.
Commenters claimed HCA Healthcare is inconsistent with Policy ES-6.7 because its actions at the Unrelated Facilities “have clearly impacted patients, workers, and the surrounding communities,” and suggested that HCA Healthcare may cut services at Good Samaritan. This argument highlights why the Project is consistent with Policy ES-6.7—the Project allows Good Samaritan to continue offering acute care services for its patients, and the community would be adversely affected if the Project is denied, and Good Samaritan must close. Moreover, nothing in the record suggests that after investing heavily in Good Samaritan, HCA Healthcare would then cut services there.
v. Policy ES-6.10
Policy ES-6.10 states: “Encourage potential hospital facilities to consider the impacts of a new facility on existing hospitals’ service areas, demands, and capacities.” Consistent with Policy ES-6.10, Good Samaritan considered the impacts of its proposed Project on the existing hospitals’ service areas, demands, and capacities. The Project is carefully phased to ensure no loss of services during construction. In addition, the Project will give Good Samaritan the space it requires for the machines now used to treat people and an upgraded facility plant that can support modern medical technology.
Commenters claimed that the Project is inconsistent with Policy ES-6.10 because of HCA Healthcare’s decisions related to Regional Medical Center, which according to the commenters, harmed residents on the east side of the City. Even if true that HCA Healthcare’s sale of Regional Medical Center to Santa Clara County had an adverse impact on that hospital, that sale has nothing to do with the Project. For the reasons discussed above, the Project is consistent with Policy ES-6.10.
November 5, 2024
vi. Policy ES-6.12
Policy ES-6.12 states: “Consider strategies and incentives to attract hospitals and other health care and medical service facilities to areas of San José where a demand for those services is demonstrated in analyses prepared by county, state, or professional consultants.” Consistent with Policy ES-6.12, the Project allows Good Samaritan to continue to serve City residents and prevents a currently served area of the City from becoming underserved. The City’s approval of the Project could help attract hospitals and other health care and medical facilities to the City by showing that the City supports its health care providers.
Commenters claim that HCA Healthcare’s actions at the Unrelated Facilities were inconsistent with Policy ES-6.12. The Unrelated Facilities, however, are not the project at issue and no one claimed that the Project itself is inconsistent with Policy ES-6.12. c. The Planning Commission’s Inconsistency Determination is Unsupported by Substantial Evidence
In sum, the Project is consistent with Goal ES-6 and its supporting policies. Had the Planning Commission considered the Project rather than the Unrelated Facilities, it would have reached the same conclusion. Because the Planning Commission’s recommendation is based on factors unrelated to the Project, including unsubstantiated conjecture about HCA Healthcare’s motives and business practices, it is unsupported by substantial evidence. (Cf. Hilltop Group, Inc., supra, 99 Cal.App.5th at p. 921 (substantial evidence “is not argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous”].)
4. The Planning Commission Acted Unlawfully When it Based its Project Recommendation On Unrelated HCA Healthcare Actions And Not The Project’s Merits
The Planning Commission’s decision to recommend that the City Council to deny the Project was not based on the merits of the Project, which were barely discussed at the hearing.
Instead, the Planning Commission’s recommendation was improperly based on animus towards the owner of the Project, HCA Healthcare, making its decision arbitrary and discriminatory.
A Planning Commission is prohibited from acting in an arbitrary and unreasonable manner, including out of animus towards a particular applicant. (Maintain Our Desert Env’t v.
Town of Apple Valley (2004) 124 Cal.App.4th 430, 447; San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 673; see Arnel Dev. Co. v. City of Costa Mesa (1981) 126 Cal.App.3d 330, 336 [“[the] principle limiting judicial inquiry into the legislative body’s police power objectives does not bar scrutiny . . . of November 5, 2024
discrimination against a particular parcel of property”].) “A public agency may not engage in conduct based upon personal, group or political animus without implicating constitutional concerns.” (Maintain Our Desert Env’t, supra, 124 Cal.App.4th at p. 447, citing the following:
Galland v. City of Clovis (2001) 24 Cal.4th 1003, 1034–1036; Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1013 [“a city does not have carte blanche to exclude a retail merchant that it, or some of its residents, do not like”]; Roman Cath. etc. Corp. v. City of Piedmont (1955) 45 Cal.2d 325, 330–334 [zoning scheme that discriminates between otherwise identical public and private schools is arbitrary and unconstitutional].) Moreover, neighborhood opposition is not “itself a ‘rational basis’ for a local government body to forbid” a project because “[i]f public opinion by itself could justify the denial of constitutional rights, then those rights would be meaningless.” (Ross v. City of Yorba Linda (1991) 1 Cal.App.4th 954, 964.) At the hearing, one Planning Commissioner noted that the Project was very similar to another hospital project proposed by Kaiser and recently recommended for approval. Other Planning Commissioners agreed that the Project and Kaiser’s project were similar, except for the fact that Kaiser had community support while the some in the community and the majority of Planning Commissioners disliked HCA Healthcare’s actions at the Unrelated Facilities. This comparison shows that the Planning Commission acted out of unlawful animus towards the Project’s owner, improperly treating Kaiser and Good Samaritan differently solely based on the identity of a corporate parent.
The Planning Commission acted arbitrarily and unlawfully when it based its decision to recommend Project denial solely on the identity of HCA Healthcare and its purported actions with respect to the Unrelated Facilities. Just as a “a city does not have carte blanche to exclude a retail merchant that it, or some of its residents, do not like” (Friends of Davis, supra, 83 Cal.App.4th at p. 1013), the City also does not have carte blanche to exclude a hospital provider that it, or some of its residents, do not like. But that is exactly what the Planning Commission did when it decided to recommend Project denial because it disliked some of HCA Healthcare’s past business decisions.
In short, the Planning Commission’s decision, which will result in the closure of a regional hospital, “is not rationally related to the general regional public welfare.” (See Arnel Dev. Co., supra, 126 Cal.App.3d at p. 337 [rezoning to prohibit affordable multifamily housing not in the region’s interest].) Like the housing crisis at issue in Arnel, California is having a hospital crisis, with “one out of every five” in “risk [of] closure amid mounting financial challenges.” (Cathie Anderson, Dozens of California hospitals at risk of closure, industry leaders warn amid call for state aid, The Sacramento Bee (Apr. 14, 2023).1) In such a situation, “[w]hen considering how best to protect consumers . . . a big part of the equation should be the health consequences of leaving residents without emergency or acute-care services.” (Id.) Yet not one Planning Commissioner discussed this very real possibility should the Project be unduly delayed or denied.
1 Available at https://www.sacbee.com/news/local/health-and-medicine/article274242050.html November 5, 2024
5. Conclusion
Good Samaritan asks the Committee to schedule the Project for a hearing before the City Council without delay. Delay could result in Good Samaritan being unable to timely replace its non-compliant bed tower, resulting in the loss of a regional acute care facility. Such a result is not in the public interest, and we urge you not to let it happen.
Sincerely,
Cox, Castle & Nicholson LLP
Linda C. Klein
EJS
Attachment: Exhibit 1, General Plan Consistency Chart
Cc: Margo Bradish, Esq.
Catherine O’Mara
Nate Gilmer
Kristina Kleist