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HomeMy WebLinkAboutL-City-NMHOA appeal re minor plan amendment-case 5.0303-PD-153 on 7-24-24-Response to City Counsel Staff Report dated 9-12-2024-c1TELEPHONE (760) 320-7161 TELECOPIER (760) 323-1758 E-MAIL cjt@ssslaw.com JAMES M. SCHLECHT (1927-2015) JOHN C. SHEVLIN (1943-2021) IN REPLY REFER TO: 13216.1 JON A. SHOENBERGER DANIEL T. JOHNSON DAVID A. DARRIN ULRICH R. McNULTY CHRISTOFFER J. THOMSEN 801 EAST TAHQUITZ CANYON WAY, SUITE 100 PALM SPRINGS, CALIFORNIA 92262 MAILING ADDRESS P. O. BOX 2744 PALM SPRINGS, CALIFORNIA 92263-2744 September 12, 2024 SENT VIA E-MAIL AND HAND DELIVERED Palm Springs City Council and City Attorney c/o Jeffrey Ballinger, City Attorney 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 RE: Appeal of Planning Commission Approval of “Minor” Plan Amendment Case 5.0303-pd-153 on July 24, 2024 Response to City Council Staff Report dated 9/12/2024 by New Mesquite Homeowners Association, Landowner re APNs: 502-560-033, 034 & 039, and 502-562-074 & 075 Dear Council and City Attorney Ballinger: As you know, this office represents New Mesquite Homeowners Association (“NMHOA”) in connection with its Appeal of the Planning Commission decision on July 24, 2024 to approve a “minor” plan amendment to Planned Development District (PDD 153), based on the application and/or request of the Oswit Land Trust (“OLT”). This letter is prepared in furtherance of NMHOA’s Appeal and in response to the City Council Staff Report dated September 12, 2024 (the “Staff Report”). The Staff Report includes substantial factual inaccuracies with respect to ownership of the land included within PDD 153, which seem to form the basis for the recommendation that the City Council reject the Appeal, and likely formed the basis for the Planning Commission Staff Report dated July 24, 2024, which previously recommended that the Planning Commission approve the application of OLT for a “minor” plan amendment to Planned Development District (PDD 153), and led to the Planning Commission’s improper decision, which decision is the subject of this Appeal. The Staff Report indicates that the applicant (i.e., OLT) submitted an Application indicating OLT was the “property owner” of eleven (11) Assessor’s Parcel Numbers (APNs) associated with the affected proposed “minor” modification proposal (See Staff Report and copy of OLT Application attached hereto as Exhibit 1), along with two Grant Deed documents and a Sublease (Grant Deed documents and Sublease are attached to the Staff Report as Attachment E), and based on these documents the Staff Report appears to conclude that OLT provided ownership for a majority of the property and “required confirmation that there is a lease agreement to process the Minor PDD Modification and therefore, could submit applications for the PDD Modification” and that OLT provided “sufficient information confirming the right to file an application for the Minor SCHLECHT, SHEVLIN & SHOENBERGER A LAW CORPORATION LAWYERS Palm Springs City Council and City Attorney September 12, 2024 Page 2 Amendment”. Based on OLT’s apparent representations as the “property owner” of all the land on the OLT Application and the documents that they provided, I can see why the Staff might have some confusion as to actual ownership interests in the land located within PDD 153, but hopefully this letter and the documents referenced herein will help clear up any confusion so that the Staff, Planning Commission, City Attorney, and City Council are fully informed as to the factually correct ownership interests as to the various parcels of land that are included within PDD 153. This letter will provide a more complete outline of the actual ownership interests in the land located within PDD 153, and in doing so will make clear why the recommendations in the Staff Reports and the Planning Commission decision were made in error, and the City Council should reverse the decision of the Planning Commission. For ease of reference and understanding, I have prepared and attach hereto as Exhibit 2 an annotated Map that covers the lands that are shown as the “site” in the Staff Report and the OLT Application (See Vicinity Map attached as Attachment A to the Staff Report, and Site Map attached to the OLT Application). The Map is annotated to show the locations of each of the eleven (11) APNs listed on the OLT Application, and also includes references to Parcels 1 through 11 which match up with legal descriptions contained in various title documents which I will describe more fully herein. The actual ownership interests as to the eleven (11) APNs listed on the OLT Application are as follows: •APN 502-310-049 -OLT has no ownership interest as to this parcel;1 •APN 502-560-018 -OLT owns this parcel in fee, and Mesquite Country Club Condominium Association (“MCCCA”) holds a leasehold interest;2 •APN 502-560-033 -NMHOA owns this parcel in fee, and OLT holds a subleasehold interest;3 1This parcel is Indian Land owned by the Heirs of John Damon Andreas, Allotment No. PS-50C, under the jurisdiction of the Bureau of Indian Affairs (“BIA”), and subject to a long term lease, Lease No. PSL-324, approved by the BIA on 10/22/1993. 2This parcel is subject to a long term lease recorded June 29, 1984 as Instrument No. 141500 in Official Records of Riverside County, with OLT as the landlord thereunder and MCCCA as the Tenant thereunder (“MCCCA Lease”). A copy of the MCCCA Lease is attached hereto as Exhibit 3. 3NMHOA acquired the fee interest pursuant to that certain Deed to Restricted Indian Land dated 10/3/2012, approved by the BIA on 11/9/2012, and recorded with the Riverside County Recorder on 11/26/2012, as Instrument No. 2012-0568118, and that certain Deed to Restricted Indian Land dated 10/9/2012, approved by the BIA on 11/9/2012, and recorded with the Riverside County Recorder on 11/26/2012, as Instrument No. 2012-0568118. Copies of these Deeds to Restricted Indian Land are attached hereto as Exhibit 4. This parcel is subject to a long term master lease, Business Lease No. PSL-219, dated 8/14/1977, approved by the BIA on 3/8/1978, recorded 3/21/1978 as Instrument No. 52350 in Official Records of Riverside County (“PSL-219"), and a long term sublease thereunder, Sublease, dated 10/14/1983, which Sublease was consented to and approved by the Indian Lessors on or about 11/9/1983, approved by the BIA, on 11/9/1983, and filed for record with the Riverside County Recorder on SCHLECHT, SHEVLIN & SHOENBERGER A LAW CORPORATION LAWYERS Palm Springs City Council and City Attorney September 12, 2024 Page 3 •APN 502-560-034 -NMHOA owns this parcel in fee, and OLT holds a subleasehold interest;3 •APN 502-560-039 -NMHOA owns this parcel in fee, and OLT holds a subleasehold interest;3 •APN 502-562-074 -NMHOA owns this parcel in fee, and OLT may arguably hold certain limited easement rights for installation, operation, and maintenance of a golf course;4 •APN 502-562-075 -NMHOA owns this parcel in fee, and OLT may arguably hold certain limited easement rights for installation, operation, and maintenance of a golf course;4 •APN 502-570-007 -The BIA holds the fee interest in this parcel in trust for the Estate of Jean Yvonne Miguel Nelson, Hale Industries, Inc., holds a leasehold interest in this parcel, Sunshine Villas Homeowners’ Association holds a leasehold interest in this parcel, and OLT holds a subleasehold interest in this parcel;5 •APN 502-570-008 -OLT owns this parcel in fee, and Mesquite Country Club Condominium Association (“MCCCA”) holds a leasehold interest;2 •APN 502-580-003 -OLT owns this parcel in fee, and Mesquite Country Club 1/13/1984, as Instrument No. 8390 (herein the “New Mesquite Sublease”). A copy of PSL-219, including amendments thereto, is attached hereto as Exhibit 5. A copy of the New Mesquite Sublease is attached hereto as Exhibit 6. A copy of the Assignment and Assumption of New Mesquite Sublease and Easement recorded 7/22/2022 as Instrument No. 0326400 in Official Records of Riverside County, which shows how OLT acquired its subleasehold interest under the New Mesquite Sublease, is attached hereto as Exhibit 7. 4 This parcel is subject to that certain Easement Agreement dated November 10, 1983, which agreement was approved by the Bureau of Indian Affairs on November 10, 1983, and filed for record with the Riverside County Recorder on January 13, 1984 as Instrument No. 8391 (herein “New Mesquite Easement”). I note OLT may “arguably” hold certain rights under the New Mesquite Easement because the New Mesquite Easement provides that the right to use this parcel terminates upon “abandonment of the use of the Subject Property as a golf course”. A copy of the New Mesquite Easement is attached hereto as Exhibit 8. A copy of the Assignment and Assumption of New Mesquite Sublease and Easement recorded 7/22/2022 as Instrument No. 0326400 in Official Records of Riverside County, which shows how OLT acquired its rights under the New Mesquite Easement, is attached hereto as Exhibit 7. 5 This parcel is subject to a long term master lease, Business Lease No. PSL-220, dated September 2, 1977, approved by the BIA on 9/27/1977 (“PSL-220"), and a long term sublease thereunder, Sublease, dated January 11, 1984, which Sublease was consented to and approved by the Indian Lessors on or about January 12, 1984, approved by the Bureau of Indian Affairs, on January 12, 1984, and filed for record with the Riverside County Recorder on January 13, 1984, as Instrument No. 8396 (herein the “Sunshine Villas Sublease”). Hale Industries, Inc., is the Lessee under the master lease and a sublessor under the Sunshine Villas Sublease. Sunshine Villas Homeowners' Association is a sublessor under the Sunshine Villas Sublease. OLT is sublessee under the Sunshine Villas Sublease. A copy of PSL-220, including amendments thereto, is attached hereto as Exhibit 9. A copy of the Sunshine Villas Sublease is attached hereto as Exhibit 10. A copy of the Assignment and Assumption of Sunshine Villas Sublease and Consent to Assignment recorded 7/22/2022 as Instrument No. 0326401 in Official Records of Riverside County, which shows how OLT acquired its subleasehold interest under the Sunshine Villas Sublease, is attached hereto as Exhibit 11. SCHLECHT, SHEVLIN & SHOENBERGER A LAW CORPORATION LAWYERS Palm Springs City Council and City Attorney September 12, 2024 Page 4 Condominium Association (“MCCCA”) holds a leasehold interest;2 •APN 502-590-004 -OLT has no ownership interest as to this parcel;6 As noted above, the ownership interests in the land located within PDD 153 are much more complicated than the OLT Application and the Staff Reports suggest, and OLT is clearly not the “property owner” of several of the parcels of land located within PDD 153. OLT has no ownership interests in two (2) of the eleven (11) parcels listed on the OLT Application, OLT holds certain subleasehold interests in four (4) of the eleven (11) parcels, OLT may arguably hold certain limited easement rights for installation, operation, and maintenance of a golf course in two (2) of the eleven (11) parcels. OLT does hold fee ownership in three (3) of the eleven (11) parcels, but even as to those three (3) parcels, OLT’s fee ownership interest is subject to the leasehold interests of MCCCA, so OLT does not hold unencumbered full property ownership interests in any of the eleven (11) parcels listed on the OLT Application. OLT may arguably hold certain rights under the New Mesquite Easement to use APNs 502-562-074 and 502-562-075 as a golf course; however it holds no rights to use these APNs as a “preserve” and because the New Mesquite Easement provides that the right to use this parcel terminates upon "abandonment of the use of the Subject Property as a golf course" it may no longer hold any rights at all as to this parcel. OLT holds certain subleasehold rights under the New Mesquite Sublease to use APNs 502-560-033, 034 & 039 as a golf course; however it holds no rights to use these APNs as a "preserve" and any change is use and/or change in plans must be approved by NMHOA pursuant to the terms of the New Mesquite Sublease (including but not limited to the terms of the master lease PSL-219 as described and incorporated therein). OLT holds certain subleasehold rights under the Sunshine Villas Sublease to use APN502-570-007 as a golf course; however it holds no rights to use this APN as a "preserve" and any change is use and/or change in plans must be approved by the BIA and consented to by the Estate of Jean Yvonne Miguel Nelson pursuant to the terms of the Sunshine Villas Sublease (including but not limited to the terms of the master lease PSL-220 as described and incorporated therein). While OLT does hold fee ownership in three (3) of the eleven (11) parcels, even as to those three (3) parcels, APNs 502-560-018, 502-570-008, and 502-580-003, OLT’s fee ownership interest is subject to the leasehold interests of MCCCA, which means OLT may need the consent of MCCCA to apply for a change of use these APNs. 6 This parcel is Indian Land owned by Diana Bow and Lucille Ann Bow, Allotment No. PS-30C, under the jurisdiction of the Bureau of Indian Affairs (“BIA”), and subject to a long term lease, Lease No. PSL-324, approved by the BIA on 10/22/1993. SCHLECHT, SHEVLIN & SHOENBERGER A LAW CORPORATION LAWYERS Palm Springs City Council and City Attorney September 12, 2024 Page 5 NMHOA respectfully requests that the Appeal be granted and the Planning Commission’s improper decision be overturned. It is our understanding that part of the “minor” plan amendment would change not only the landscaping but also the use of the property from golf course to preserve. The change of use from golf course to preserve would appear to materially change the original intent of PDD 153, and thus should not be considered a minor modification. Before any changes to PDD 153 are made, a complete application and public hearing should be held to deal with the entirety of the land covered by the original approved Planned Development District (PDD 153) with public hearing notice going to all neighboring property owners in accordance with Palm Springs Zoning Code (PSZC) Section 94.03.00. Based on the various ownership interests involved, it would make the most sense if the disposition of the entirety of the original PDD 153 boundary be included in any application. But even to the extent that the City might entertain an application to amend a portion of PDD 153, at the very least, the City should verify the property owner is a party to said application and/or at least consents to said application before the City proceeds. If you have any questions with regard to this letter, please feel free to contact me. Very truly yours, CHRISTOFFER J. THOMSEN for Schlecht, Shevlin & Shoenberger, ALC