HomeMy WebLinkAbout4/5/2000 - STAFF REPORTS (16) DATE: April 5, 2000
TO: City Council
FROM: City Clerk
REFERENDUM ORDINANCE 1579-GARDEN SPRINGS
RECOMMENDATION:
That the Council consider action on the referendum petition filed concerning
Ordinance 1579, adopted on February 2, 2000, relative to the Garden Springs
project.
BACKGROUND:
On March 3, 2000, the proponents of Ordinance 1579 referendum filed their
petition, entitled:
"REFERENDUM AGAINST AN ORDINANCE PASSED BY THE PALM
SPRINGS CITY COUNCIL ORDINANCE NO. 1579, AN ORDINANCE OF
THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING THE ZONING
MAP BY APPROVING A CHANGE OF ZONE FROM R-2 (LIMITED
MULTIPLE FAMILY RESIDENTIAL ZONE) TO PLANNED
DEVELOPMENT DISTRICT 255 AT THE SOUTHEAST CORNER OF
INDIAN CANYON DRIVE AND SAN RAFAEL DRIVE, SECTION 2."
A random sampling technique permitted by the California Elections Code was used
to determine the validity of the signatures. The sample produced a 76% validity,
which when extrapolated, equals 2360 from the total number of signatures
submitted exceeding the 110% of the requirement for valid signatures. The cost
for the signature verification is $500.
The City Attorney has been analyzing legal issues concerning the validity of this
measure and issues raised by the Developer's attorney. The City Attorney's
recommendations are contained in the attached memorandum.
The Council has the following options:
a) Reconsider and repeal Ordinance 1579, or
b) Call a special municipal election to be held on established election date of
July 11, 2000, or
c) Follow the City Attorney's recommendation to find the measure invalid and
approve the indemnity agreement offered by the Developer, CBM.
The costs for the election are estimated to be approximately $57-60.000, and may
be somewhat higher depending on Spanish translation costs. There are no funds
currently budgeted for this special election.
PATRICIA A. SANDERS �✓�
City Clerk City Manager
1. Attachments
MAR-28-2000 WE U4:U3 PM
f AX NO. F. 02
*t %
2724 Gateway Drive
MISCNELLE TOWNSEND Riverside, CA 92507-0918
registrar of Voters (909) 486-7200
FAX (909) 486-7272
REGISTRAR OF VOTERS
COUNTY OF RIVERSIDE
CERTIFICATE OF REGISTRAR OF VOTERS
County of Riverside )
ss.
State of California )
I, MISCHELLE TOWNSEND, Registrar of Voters of the County of Riverside, State of California, hereby
certify that on March 6, 2000, The Referendum petition entitled PETITION FOR REPEAL OF ORDINANCE
1579 was delivered to my office by the City Clerk of Palm Springs, Patricia A, Sanders for signature
verification.
I further certify that the signatures on said petition were counted and examined by means of a random
sampling technique pursuant to Section, 9115 and 9240 of the California Elections Code, and that the
results of said examination are as follows.
That the total number of signatures submitted for said petition is 3,106,
The number of signatures random sampled Is 500.
Random sample results are as follows:
The total number of sufficient signatures on said petition is 380, or 76,0% of 500 signatures
verified.
The total number of insufficient signatures on said petition is 120, or 24.0 % of 500 signatures
verified,
I further certify that, pursuant to Section 9237 of the California Elections Code, the number of valid
signatures required to qualify said Referendum petition is 2,104 (10°% of 21,034, the number of voters in
said City as of the February 24, 2000 report of registration to the Secretary of State pursuant to Elections
Code Section 2187); and that, because the estimated number of valid signatures on said petition (2,360,
when extrapolated) exceeds 110% of the number required for validity, the petition is hereby declared
qualified on the basis of the random sampling results.
DATED: March 28, 2000
-(��.-��P�
Pauline Chamberlin
Chief Deputy Registrar of Voters
MEMORANDUM
To: Honorable Mayor and Members
of the Palm Springs City Council
From: David J. Aleshire, City Attorney
Date: March 28, 2000
Re: Legality of Proposed Initiative Measure
A. Statement of Issue.
As the Council is aware, the Riverside County Registrar of Voters has certified that
the referendum petition challenging the rezoning of the Garden Springs low-income housing
project site contains sufficient valid signatures for placement on the ballot. On March 9,
2000, an attorney for developer CBM Group submitted a letter to this office which set forth
legal arguments concerning why the referendum is illegal and unenforceable. (A copy of this
letter is attached.) The letter also contends that any delay in processing and constructing the
project will jeopardize CBM's federal tax credits for the project, with likely monetary
damages exceeding $6 million. CBM has agreed to defend and indemnify the City in any
lawsuit arising out of a decision not to place the initiative on the ballot. The Council has
asked this office for a recommendation on a proper course of action under the applicable law
and facts.
B. Summary of Conclusions.
Although the issue is not free from doubt, we believe that the arguments presented in
the letter from CBM, along with additional arguments which could be made, would more
likely than not persuade a court that the subject referendum is illegal. Given this conclusion,
along with the fact that CBM has agreed to defend and indemnify the City in any ensuing
lawsuit, we recommend that the City Council not place the referendum on the ballot.
C. Discussion.
Detailed legal arguments relating to the invalidity of the referendums are set forth in
the attached letter from CBM and will not be repeated in this memo. CBM's primary
arguments are that (1) the ordinance establishing the Planned Development District zoning
was adopted solely as a vehicle for providing the state-mandated incentives required for the
Garden Springs project, and as such was an administrative act not subject to referendum; (2)
the referendum would violate Government Code § 65008, which prohibits discrimination
against low-income housing projects, and would thus impermissibly regulate matters which
have been preempted by the state; (3) under existing case law, the referendum is arbitrary and
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discriminatory and therefore exceeds the city's police powers; and (4) the referendum would
conflict with the City's General Plan.
An additional legal authority not cited in CBM's letter which supports the
recommended action is Building Industry Association of San Diego Inc v City of
Oceanside (1994) 27 Cal.App.4"' 744. There, the court invalidated an initiative which,
although it was not aimed at one particular low-income housing project, provided strong
disincentives to developers seeking the developer incentives required by the Government
Code and was clearly intended to discriminate against low-income housing projects. The
court held:
The three cited Govermnent Code sections [which were cited
in CBM's letter], taken together, clearly show an important
state policy to promote the construction of low-income housing
and to remove impediments to the same. Proposition A is such
an impediment, and cannot survive such a conflict.
The argument in favor of placing the referendum on the ballot would be based upon
the fact that there are several cases holding that rezoning is a legislative act, and that the
Council therefore acted in its legislative capacity when it voted to rezone the property to
PDD. Taken no further, this argument has some appeal. However, given the strong state
policy to promote the construction of low-income housing, as well as the statutory
requirements for providing specific developer incentives, we believe that the legal arguments
against the validity of referendum would more likely than not prevail in court. As such, our
recommendation is that the Council not place the referendum on the ballot.
While our recommendation is primarily based upon analysis of the legal issues, it is
also influenced by the likely litigation posture resulting from the Council's determination.
Should the Council decide not to place the referendum on the ballot, CBM will agree to
defend and indemnify the City in any lawsuit brought by the petition proponents seeking
placement of the measure on the ballot. This would also eliminate any threat of litigation for
damages brought by CBM since we have asked for a waiver of such claims in the written
indemnity agreement, which is presented for Council review and approval.
If, on the other hand, the City places the matter on the ballot it will, at a minimum, be
out the legal expense of defending the decision to place the matter on the ballot which could
cost $50,000. Moreover, should the City lose, which we consider likely, the City will also
face (1) CBM's claim for recovery of attorneys' fees, (2) the legal fees of defending the
damages action, and (3) the claim by CBM for damages on the order of$6 million dollars.
All in all, even if successful, we see the unreimbursed expense to the City of this course of
action in the $150,000 to $300,000 range.
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matter. We will be happy to answer any questions the Council may have concerning this
Respectfully submitted,
RUTAN & TUCKER LLP
David J. Aleshire
City Attorney
DJA JI
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RUTAN &TUCKER LLP
Attorneys at Law
611 Anton Boulevard, 14th Floor
Costa Mesa California 92626-1998
Mauling Address: Post Office Box 1950,Costa Mesa,California 9262$-1950
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ATTORNEYS AT LAW
fAUt T.9EL21'R 777 h'.TAnQUFa C7NYONWAY,S17n$328
PALM SPRINGS,(24UPORNIA 92262
it.CVRTWY TRLefIONR 76"0-5977
BMtILY P6RRI IeMIPmrL FACSIMILE 76OJ20-9907
OIANE C RLM1SI)PI
March 9, 2000
David Aleshire,Esq.
Rutan&1 ticker
fill Anton Boulevard
Costa Mesa, California 92628
IZe: Garden Springs Apartments
Dear Mr. Aleshire;
AS you know, this office represents the C13M Group, the proponent of the above
referenced project. I was recently advised by my client that a petition as been submitted seeking a
referendum for the purpose of repealing the Planned Development District("PAD")adopted by the
City Council approving Garden Springs Apartments. Because of the submission of this petition,my
client has been advised that all processing of its plans has been suspended pending review of the
petition to determine if it contains the requisite number of signatures to place the referendum on the
ballot. We believe that the petition which has been submitted is invalid,regardless of the number
of signatures it contains,because it seeks to overturn an action which is not subject to referendum
for several reasons. For these reasons,which I will set forth below,we are requesting that the City
Council find that the petition is invalid, and that city staff be immediately directed to continue
processing my client's plans for construction of this affordable housing project_
1. The,petition is invalid because an initiative may not regulate matters which have been
preempted by the State.
Cities have the ability to pass laws and ordinances,whether by council action or by
initiative or referendum,governing local affairs but only to the extent that those laws do not conflict
with laws of the State. Charter cities also remain subject to and controlled by applicable general
state laws on matters of statewide concern regardless of the provisions of the City's charter. [Bruce
v. City of Alameda (1985) 166 Cal.App.3d 18, 21.1 If the state statutes have preempted the field,
ordinances governing municipal affairs will not supersede those general laws of the state.
[RedevelopmentAgency v. Ciry If Berkeley(1978) 80 Cal.App.3d 159, 169.1
170"?
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In the area of affordable housing,the legislature has stated that"There continues to
exist throughout the state a seriously inadequate supply of safe and sanitary dwelling
accommodations for persons and families of low income. This condition is contrary To the public
interest..." [Health& Safety Code§33250.1 The legislature has also stated that providing adequate
housing for all income levels is a"priority of the highest order"and"requires the cooperation of all
levels of government." [Gov. Code §65580.1 Given these statements of legislative intent, courts
have concluded that locally unrestricted development of low cost housing is a matter of vital state
concern and that the provisions of Government Code §65008 have preempted the field,snaking it
applicable to all cities,including charter cities. [Bruce v. Ciry ofrllameda, supra,at 22.]
Government Code §65008 provides:
"No City,county,city and county,or other local governmental agency shall,in the eaactmeut
or administration of ordinances pursuant to this title, prohibit or discriminate against a
residential development or emergency shelter because the development or shelter is intended
for occupancy by persons and families of low and moderate income."
Contrary to the provisions of this section ofthe Government Code,the petition which
has been filed requests that the City place on the ballot a measure which is specifically designed to
defeat a project intended for occupancy by persons and families of low and moderate income, Given
that the State has preempted the field with regard to this issue,and given that the referendum would
coutlict with the Sure,$ statutory scheme with regard to affordable housing, the referendum if
approved,would be void ab initio,and therefore not a proper subject for referendum.
There are numerous other sections of the California Code dealing with affordable
housing that are likewise impermissibly violated by the proposed initiative. If the referendum were
to go into effect,the PAP approved for Garden Springs Aparuneats would be overturned,thereby
eliminating the density bonus provided to the project, as well as the adjustments in development
standards approved as part of the PDD. However, under the provisions of Government Code
§65915,the State legislature has provided that:
"When a developer ofhousing proposes a housing development within the jurisdiction ofthe
local government,the city,county,or city and county,sl}aU provide the developer incentives
for the production of lower income housing units when the development meets the
requirement set forth in subdivision(b)and(c)." [.Emphasis added]
To fall within this section,the developer must agree to construct at least 20%of total
units for lower income households. In this case,AU units are to be constructed for lower income
households,and therefore the project has met this threshold criteria. In such a case,it is mandator
under State law that the City provide either (1) a density bonus of at least 25%plus one other
concession(such as reduction in site development standards),or(2)other incentives of equivalent
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financial value.
The referendum in question,by overturning the PDD,would deny this developer the
incentives that the City must gr tin 6v law, namely, the density bonus and the reduction in site
development standards. This is particularly egregious in this case given the fact That the developer
elected not to use the entire 25%density bonus that he is entitled to by law. (The project includes
60 units,while a 25%density bonus would have given the project 65 units.) Given that the state has
preempted The field with regard to affordable housing development,the City may not pass an statute
or ordinance, whether by Council action or referendum, which is in violation of State law in this
area. The referendum in this case is a blatant attempt to locally overturn Government Code§65915
and is Therefore impermissible and void ab inirio even if approved by the voters.
2. The petition impermissibly seeks to do, by referendum,what the City Council could not do
by their own act.
As noted above,the provisions of the Government Code make it mandatory for the
City to provide this project with a density bonus and one other concession,in This case,reduction in
site development standards. Had the City denied These incentives to Garden Springs,it would have
violated Government Code§65915, Recognizing this obligation,The City Council acted accordingly
and approved The PDD for the project. The referendum proposed by the petition now attempts to
overturn that act in violation of Government Code§65915, Since the City Council could not,on its
own action,legally deny these concessions, the citizenry likewise cannot do so in violation of the
law via the referendum process because the City's authority under the police power is no greaterthan
it would otherwise be simply because the action taken is accomplished by referendum or initiative.
LArnel Development Co- v. City of Costa Mesa(1981) 126 Cal.App.3d 330,337 citing Campen V.
Greiner (1971) 15 Cal.App.3d 836, 843,Mueller v. Brown(1963)221 Cal.App.2d 319,324-325.1
3. The referendum is nor valid because it improperly seeks to overturn an administrative, not
a legislative, act of the City Council and a referendum is only proper to overturn a
legislative act.
An administrative act is not subject to referendum. [Wheelright v. County ofMarin
(1970)2 Ca1.3d 448,457; Lincoln Property Co- No. 41, Inc. v. Law (1975) 45 Ca1.App.3d 230,
233-234, Rshman v. City of Palo Alto (1978) 86 Ca1.App.3d 506, 509.1 "Although the powers
reserved by the people of initiative and referendum are To be liberally construed to uphold those
powers whenever it is reasonable to do so,The people may invoke the power ofrefereadum only with
respect to matters That are legislative." LRshman v. CO of Palo Alto, supra at 509.)
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The action which the referendum seeks to Overturn is the granting of the PDD. The
PDD was granted in this case solely as a vehicle for providing the State mandated incentives (i.e.
density bonus and reduction of site development standards). It is clear that bad these incentives not
been part of the project application,the project would have been evaluated under the right of zone
and the City's action would have been an administrative application of the zoning ordinance,and
therefore not subject to referendum. The only question,therefore, is whether the adoption of the
Pl)p is a legislative act. Given that the adoption of the PDD in this situation was sole for the
purpose of providing Stare mandated incentives to this particular pro'ect the PDD involved no
exercise of discretion on the part of The City Council_ An action by the City Council is
administrative in nature "if it merely pursues a plan already adopted by the legislative body itself,
or some power superior to it" (Fishman v. City ofPalo AlrO, supra,citing Lincoln Property Cu_ A10.
41, Inc. v. Law(1975)45 Cal.App.3d 230,234.] The PDD did nothing more than implement the
mandated policy of the State,a power superior to the City in this matter, and therefore, under the
foregoing standard,the granting of the PDD was an administrative act not subject to referendum.
As noted above,courts have deTemtined that the state laws related to development
of affordable housing are based upon pervasive statewide concerns and as such, the state has
preempted the field with regard to this matter. This fact also makes the City's action in approving
the PDD a clearly administrative act not subject to referendum because the use of The initiative and
referendum process is barred"in a situation in which the state's system of regulation over a matter
of statewide concern is so pervasive as to convert the local legislative body into an administrative
agent ofthe state."[Friends ofAdountDiablo v. County ofConrra Costa(1977)72 Ca1.App.3d 1006,
lolo,Housing Authority v. .Superior Court(1950)35 Ca1.2d 550,Associated Home Builders etc.,
Inc. v. City of Livermore (1976) 18 Cal.3d 582, 596 fn 14] Again, because the PDD did nothing
more than implement the mandated policy of the state with regard to affordable housing, the City,
in adopting the PDD,was acting as an administrative agent of the state and its action is not subject
to referendum.
Characterizing the approval of the PDD as a "zoning decision" does not alter the
conclusion that this action was an administrative act. "[C7ases holding land use modif cations w
be legislative acts subject to referenda involved substantial land use changes." [Fishman v. City of
Palo Alto,sapta at 510.1 The determination of whether an action is legislative or administrative must
be made on a case by case basis,and when the act does not involve a substantial alteration of the
zoning district, it is not a legislative act subject to referendum. [,1d. at 512 J In this case,the PDD
did noT involve substantial changes to The underlying zoning district,rather,it implemented minor
modifications required by state law. Under such a circumstance,The adoption of the PDD is most
closely akin to the granting of a variance,and is therefore administrative and not legislative,and
Subject To refte rn um.
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4. The petition is invalid because it seeks to adopt a referendum which, if passed is
impermissibly in conflict with the City's General Plan.
Under the Housing Element of the City's General Plan,it states that"The overall goal
guiding the City's housing policies and programs is to ensure that all residents of the City have
decent, safe, sanitary and affordable housing regardless of income." To achieve this goal, the
Housing Element states that "incentives, both financial and non-financial, §baLl be provided to
developers to lower project costs in exchange for dedication of a portion of The project as affordable
units." (Emphasis added.) Among the specific goals set forth in the Housing Element are 'The
removal or mitigation of constraints to the provision of affordable housing, both government and
non-govemmental" and "To develop, in accordance with density, building and environmental
standards, new affordable housing to expand housing opportunities for all residents of the City."
Mousing Element,Section V,Goals#4A and E,j The proposed referendum,if passed,would be in
direct conflict with these goals stated in the City's General Plan. Such a conflict with The City's
General Plan cannot be permitted,particularly in a situation such as this,when the City specifically
commissioned aspecial study to determine the need for affordable housing=4to determine whether
There was any over-concentration of affordable units in any portion ofthe City. That study fauna that
There was an identified need for affordable housing and that There was no aver-concentration of such
housing in any particular area of the City.
For a more detailed discussion of howtite Garden Springs Apartment project furthers
the City's General Plan, 1 refer you to my letter to my client dated September 10, 1999, a copy of
which is attached for your convenience(a copy of this letter is also part of the project file with the
City Planning Department). Because the referendum would result in the denial of the Garden
Springs Apartment project,the referendum,if passed would create a law in conflict wiTh the General
Plan and that law is therefore,invalid ab initio. [Building Industry Association v. City of Oceanside
(1994)27 Cal.AppAth 744.1
5_ The petition is invalid because it seeks to adopt a referendum which, itpassed is arbitrary
and discriminatory and therefore exceeds the City's police powers.
A land use law is arbitrary if it is adopted without consideration of appropriate
planting or land use criteria[Arnel Development Co, v. City of Costa Mesa(1981) 126 Cal.App.3d
330.1 In this situation,The City has had a series of meetings analyzing the project which have taken
more than a year to complete. The City also commissioned a special housing study to evaluate need
for the project's affordable housing units and to evaluate whether there existed any over-
concentration of affordable units. Throughout this lengthy process,the City found that the project
conformed to the General Plan and the City's other zoning ordinances, as modified by the state
mandated housing laws.
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Under Government Code §65589.5,"a local agency shall not disapprove a housing
development project affordable to low and moderate income households or condition approval in
a manner which renders the project infeasible for development for the use of low and moderate
income households unless it finds,based upon substantial evidence,.,"That certain conditions exist.
Ofthe six enumerated conditions(all of which are quoted on page 3 of my September 10, 1999 letter
which is attached), the only one which could have arguably been applicable is condition#4. This
would require a finding that the project would increase the concentration of lower income
households in a peighborhood That already has a disproportionately high number of lower income
households (as alleged by project-opponents) and there is no feasible method of approving The
development at a different site without rendering the development unaffordable to low and moderate
income households. When The City completed its recent housing study,That study clearly states That
"The data do not indicate a geographic concentration of affordable housing in Palm Springs."
["Market Analysis for Affordable housing"dated October 29, 1999,at page 67.1
Raving completed an exhaustive analysis of the project,the City Council concluded
that approval of the PDD was appropriate,in compliance with and furtherance of the City's General
Plan and required under applicable state law. The referendum now at issue seeks To overturn that
PDD without any consideration of the City's general plan,without any fiuther analysis which would
refute the City,s extensive analysis over The last year,and in total disregard for state statutes which
would be violated, as described above.
Furthermore, the referendum does not include any findings, supported by any
evidence (let alone substantive evidence), That one of the enumerated conditions found in
Govcrnmem Code §65589.5 exist. In the absence of such any such findings,Gov. Code §65589.5
does not permit the City to disapprove This project, and therefore, the proposed referendum, if
passed, would constitute an arbitrary and capricious act which exceeds the City's police powers
[Arnel,Development Co. v. Ciry of Costa Mesa(1981) 126 C4App.34 3301 and violates numerous
sections of the Government Code dealing with affordable housing,
To avoid being in excess of the City's police powers, an ordinance must bear a
substantial and reasonable relationship to the public welfare. (Arnel.Development Co. v. City of
Costa Mesa, supra at 336.) In This case,as was the case in Arnel, the proposed referendum is not
rationally related to The general regional public welfare,but,at best,to conserving the interests of
the adjoining property owners and residents of the immediate area. Passage of the referendum will
negatively impact the City's ability To respond to the regional need for affordable housing,as it is
required to do under the law, and will deny low and moderate income families The opportunity for
safe, affordable and adequate housing in violation of state law. Balancing the breadth of ibis
negative impact in light of the state-wide importance given to the development of affordable
housing,against the narrow competing interests of adjoining property owners who are sponsoring
The petition, clearly shows that the proposed referendum is not reasonably related To The public
welfare and,as was the case in Amel, is therefore in excess of the City's police powers and will be
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void ab Mina,
In fact, the proposed referendum is solely for the purpose of defeating a specific
affordable housing project notwithstanding that such defeat is contrary To the extensive analysis done
by the City,which analysis required the proj ect's approval. Such an action is discriminatory against
a particular parcel of property. The referendum is further discriminatory in that it attempts to
overturn the project approval because the project is intended for occupancy by low and moderate
income households. This intent is amply evident from the testimony at the various hearings,and in
fact, the sole effect of the referendum will be to defeat an.affordable housing project. The
referendum is therefore impermissibly discriminatory and as such,exceeds the City's police power
and is also a violation of Government Code §65008 which prohibits discrimination against
affordable housing projects_
Petition's Effiv on Garden Springs Apartments.
As you are aware,the Carden Springs Apartment project is,in part, funded through
the use of tax credit allocations available pursuant to the Internal Revenue Code("IRC") §42, The
IRC requirements forte use of those credits requires that this project be built and obtain a certificate
of occupancy no later than December 31.2000 and an extension of the talc credits is not available
under the IRC. Under the best of circumstances, this will be a difficult deadline to meet, in part
because of extensive delays in processing the project application that CBM has experienced. The
City refused To act on the application imtil it had completed an affordable housing study. That study
was not completes}until October, 1999 even though this 12Mect bad been Pendingbefore efore the City
for nearly a year. I would note that the study done in 1999 was unnecessary given that the City had
a valid Housing Element which is the governing document to show need for such housing. The
study did agree with the Housing Element's analysis of need and therefore gave the City no evidence
upon which To base a denial of the project. That fact notwithstanding, even after The project
application was deemed complete,the project was further delayed before being brought to the City
Council and Planning Commission for formal approval.
These delays, coupled with the suspension of the PDD because of the proposed
referendum,will have the effect of defeating this project,whether the referendum is passed or not,
because the project will be delayed so long that it will be impossible to meet the deadlines set forth
in The IRC. The loss of those Tax Credits will result in immediate damage to my client in excess of
$6,000,000, plus the lost revenue which would have been realized in the future from the project's
ownership and operation. The loss of those Tax Credits will also result in the loss of an outstanding
affordable housing projeciwhichwould respond to the known needs ofThe low and moderate income
families in our area.
/7*3
Mar-30-00 12:08pin From-RUTAN & TUCKER LLP +7146469035 T-819 P.09/09 F-351
SELZER, EALY, HEMPHILL & RLASDEL
March 9, 2000
Page 8
While I believe that my client will ultimately prevail on the substantive matters that
will defeat the proposed referendum,this will be a pyrrhic victory indeed if the proj ect is lost simply
because of the delays caused by an invalid attempt to defeat state law through the referendum
process. We therefore respectfully request that the City Council find that The petition is invalid
because it does not state a proper subject for referendum and is in violation of state law as set forth
herein. We further request that,in the interim,the City Council direct the planning staff to continue
reviewing and processing the project plans so that we will not experience a potentially fatal delay
while we await the City's determination as to the invalidity of the proposed referendum.
Sincerely,
EmilyeHemphill
Selzer, ll&Blasdel, LLP
FPH/les
cc: William Kleindienst
Dallas Flicek
Jeanne Reller-Spurgin
Ron Qden
Deyna Hodges
Jim Copeland
Cory Bettencoun
11
LVuu 10L yL.JU rAA Ulu 444 ' IOU n 111 0: n
BELL, MCANDREWS, HILTACHK & DAVIDIAN, LLI'
Attorneys and Counselors at Law Cd��'y J .
z, l
455 CAPITOL MALL,SUITE 801
SACRAMENTO CA 95814
(916) 442-7757
FAX(916) 442-7759
CHARLES H.BELL,JR. 1441 FOURTH STREET
COLLEEN C. McANDREWS SANTA MONICA CA 90401
THOMAS W.HILTACHK (310)458-1405
BEN A. IAN
GUA
JOSEPH PH A.c;IIARDARRAMA �pWW,,``//��,,//������
ALLISON R. HAYWAM
OF COUNSEL
FAX TRANSMITTAL
DATE: April 4, 2000 TIME: 1:00 p.m.
FROM: Thomas W. Hiltachk tomh@bmhlaw.com
TO: The Honorable William Kleindienst and
Members of the City Council
FAX #: 760-323-8207
Number of pages(including this cover sheet): 3
Please deliver IMMEDIATELY to the above-named individual. 1f there are any problems with
receipt of this transmission or quality of the copy received,please Call me at (916) 442-7757.
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U4/U4/. UUU 1LIh 1G.o( PA& HlU 44,4 ( (oa B !,I S li W.Jwc
DELI,, MCANDREWS, IiILTACRK & DAVIDIAN, LLP
ATTORNEYS AND COUNSELORS AT LAW
463 CAHITOL MALL. GVITo SOI
SACK MEYTO, (:ALIFOANIA 9.95"
(91E) 442-79S7
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GHARLCS H. BELL !R, 1441 FOURTH STREET
COLLCL'N C MCANMRm Wt: SANTA MONICA. CA 90401
THOMAS W HIt TACHIK (310) 4SS-1405
BEN DAVIDIAN rA. (310) aG0 zBee
JOS.rc" A. GUARDARRAMA www.BMHIaW.DDm
ALLISON a HAYWARD
OF COUNSEL April 4, 2000
VIA FACSIMILE AND U.S. MAIL
The llonorable William Kleindienst and
Members of the City Council
3200 East Tahquitz Canyon Way
Palm Springs, CA 92263
Re: Referendum of Ordinance N o. 1579
Dear Mayor and Councilmembers:
This firm represents a committee of Palm Springs residents and voters as well as
the proponents of the referendum petition referenced above. I have reviewed the
memorandum of your city attorney and strongly urge you to reject his conclusions and
recommendations.
The Elections Code is quite clear on the council's duties with respect to a duly
qualified referendum petition, Flections Code section 9237 states in pertinent part:
If a petition protesting the adoption of an ordinance and circulated by any qualified
registered voter of the city, is submitted to the elections official of the legislative
body of the city... within 30 days of the adoption of the ordinance, and is signed by
not less than 10 percent of the voters of the city according to the county elections
official's last report of registration... the effective date of the ordinance shall be
suspended and the legislative body shall reconsider the ordinance. (emphasis
added).
The council's choices are specifically set out in Elections Code section 9241,
namely repeal the ordinance or submit it to the voters. The city can not refuse to place a
duly qualified referendum on the ballot unless it repeals the ordinance.
The city attorney recommends that you choose a lawsuit filed by the citizens over
7777,01
U4/V4/rUVV IUL 1L Of rAA tl1V 44c IfOU a a M a w�ovo
CONFIDENTIAL ATTORNEY-CLIF.N'12RIVI .F.GE
Letter to The Honorable William Kleindienst and
Members of the City Council
April 42 2000
Page 2
one filed by a private developer. Resides violating the express provisions of the Elections
Code, this "choice" is based on the faulty conclusion that the referendum petition is
somehow "illegal" The main problem with the city attorney's analysis (as well as the
counsel fbr the developer) is that they fail to distinguish between a referendum and an
initiative. This referendum is a challenge to the council's legislative action of re-zoning
property. The result (if successful) will be to retain the status quo, which does not
conflict with the General Plan or state law.
Finally, the city attorney's conclusion that the private developer would likely
recover attorney's fees if successful is wrong. The developer would be asserting its
financial interest in the re-zone, not the public's interest. An award of attorney's fees to
the developer is highly doubtful. On the other band, if the referendum proponent is
forced to litigate the interests of the citizens in preserving the power of referendum, it is
very likely that an award of attorney's fees would be granted, if successful.
This letter shall serve as notice that such litigation will ensue if the Council
chooses to ignore the will of the voters and the express provisions of the Elections Code_
Very trul ours,
Ailtachk
T mas
TWH:Ijs
cc: David Aleshire, Fsq_
7777,01
April 5, 2000
George and Judith Mohacsy palm Springs City Council Meeting
200 E. Racquet Club Rd. , #50 Case No. 5,0805 and Referendum
Palm Springs, CA 92262
To the Honorable City Council,
T would first like to call you)."alteration to the fact teat tltiys hearing is iu.violation of tho Brown
Act. Yesterday,April 4, 2000, the City C1eth(Patricia Sa'nder's)was asked to provide a copy of
the Irulemnity Agreement offered by the developer. Her reply was the follawinrg:
"I was just faxed the Indemnity Agreement,but it was too fuzzy to put on the [nternet."
Nor could she supply the hard Copy that was asked.tor. In accordance with, and in the 'spirit of
the Brown Act, rot only roust the lrvariiig be ageudized,but documents crucial to the outcome of
the hearing must be supplied 72 hours in advatice,of die,selledulv'I meeting. The Indenwity
Agreement was not available 41 that tiruefrairte. At the very least, this meeting should tie
rescheduled,atad t1le appropriate docluil its made available For public review.
its to the three options before you,I urge:the Council to approve either option l (to reconsider
and repeal Orditimice 1579)or option 2(to call a special runaieipal eh%ciott.to be held ore
established election date of July 11, 2000)—preferab)y option 1,
At the December$, 1999 Platming Commission hearing, I subitlitted both cvrittert and oral
eorntueuts on the proposed Cxardoa Sprints Apai tinent project, which have again been subnutted
as pail of the written re wd today. My concerns regarding public safety grad the inadequacy of
the CEQA revievv still stand. If you have read through ell of the conditions placed on the project,
you will!rave noted not one of theca offers a tangible zuechanism to ensure the satiety of the
surrounding residonts. Merely saying design I'eatlares w ll be integrated into the project is a far
cry Donn actually solving a problem, As wo all kttorv, crinto is rue esisti.ng prob)ern in the area. It'
those so called design features really worls.ed, we wouldn't have thc,so problems —would we"
AS for the itiadequacy of the,CEQA review, my corrmrearts of December 8°i detail cry
fundaataehtal ooueerns, Lhlfoituttatr.ly,those eoncenls have not really been addressed tT.unagh the
Plaaming Direotor attempted to do so at the hearing, while I do not share his axpertisc, it is not
difficult to disecrn when one is being glossed ever.
He that as u nlay, to provide a brief emwl)1e,cow of the hiadequate.Mitigated Negative
Daelwation, ',Tffic ra Study!wasn't oven prepared. It is hard to believe the-planning staff,though
I'n1 sure quite able,can guess a,m, and p.n1. peak hour trips generated by the project, Doesn't the
City have some quantitative tlu•eshold to help in doteruuning whether a groject's traihc impacts
are Significant or not? It is understandable since project generated traffic impacts were not
ttualyzed,'that no cumulative traffic itnpacts were disclosed or discussed. And, considering staff
discusses the inuuinent RedcveloptnCnt program adjacent
'to the site, and the need for a bus
turnout,bike path, and the widoning of the site's three adjacent streets,how was the need for r1119
iufrastructlue detannined witho't mowing both pruj ect-generated traffic and the area's
cumulative impacts?
This is just orae of many examples of the inadequacy of the Mitigated Negative Dealaratiorr.
To conclude,I would just like to say that if the honorable City Council, our elertecl otTrci:als, do
not choose either the first Or second options,that decision would make very clear tine coutc+anpt
the Council has for the concepts of public disclosure and public participation— both of vy}aicia axe
supposed to be protected through the Brown Act and through compliance with the CEQA Statutes
wild Guidelines. I hope it would not be difficult for you, :should p ou select Option 3.to
understand cvl y the pu.blre does not trust the governznez t t,o act iu their best hltorest Thank, vou.
George and Judith Mohacsy
200 E. Racquet Club Rd. , #50
Palm Springs, CA 92262
April 4, 2000
City Council u
City of Palm Springs, City Hall
Palm Springs, CA 92262 �'3:E1vQED
RE: Garden Springs Apartments [Case No. 5.0805 (PD 255)} and Referendum COY G����
Dear Members of the Palm Springs City Council ,
In as much as we consider your response to our comments at the Planning
Commission Meeting on December 8, 1999 to have been inadequate, and in light of
your impending review of the related qualified Referendum, we are requesting your
written res e to our comments and a copy of the Minutes for the April 5, 2000
City C eting regarding Case No. 5.0805 (PD 255) , the Garden Springs
Apr n Group, Inc. and regarding the Referendum which refers to the
om ro se. Thank you in advance for your time and cooperation.
r
Mich agency (local, state or federal) established the criteria for affordable
housing and how fs the criteria to be enforced? "I'hroubhout the ciocutuent,
Section 42 of the 06 Code is referenced which leads m,e to assume there is
some federal in ol'vement- but w'ith'wliick agency?
2. The funding source for this project is rie- er explicitly stated. If it is a subsidy
from a public agency (local, state or Ced.eral?) to the hM group, and a
density bonus (as ivel,l. as a reclurtion in parking spaces and re.auixed
setbacks) is tied directly to project approval, hoiv`V 1I, the Objective of
providing affordable housing units be maintained?
3. Clarify the statement on page 5 of tl.,.e Sta.ff'Report which, states a total of 'I J 59
very low and low income units currently exist in die City, of which 895 are
"family" units, The Affordable Housing Market Analysis conducted for this
project concludes 1,609 units are needed between 2001 and 2005. A total of
678 of these 1,609 units are needed for very low incoule and low incornc
to uiilies.
A•ty interpretation niay not be correct, but it appears if 678 units are needed
for very low incotrie and low income families, and there are currently 895 of
these type of units, why is there a need, to construct more'
4. The Staff'Report notes the City of Palm Springs Consolidated l�lazt -
etn ahasizes a five year strategy • ,. ,t-,.'
l 5 gv g�ared to preserve affordable housing fb" "' � m.; ,-
City residents with special needs. fn this case, special.needs is defined as
either large families with children, the elderly, and the physically and
developmentally disabled. Staff concludes the harden Springs Apartment
project is in line with this strategy. Ho`,•cver, the proposed project only
GForge and Judith .Uohaosy
200 E. RaugLL2t Club Rd. , a50
Patin SPi Ing•.S, CA 922.h2
targets fan flies in the very low income or to", income category, not the
elderly, anti the physically and developmentally disabled. It is misleading to
say this project meet a multitude of ltiou.si.ng needs.
5. The Staff.Report consistently references a map to be. provided at the Planning
Commission heartag, which., shows the dispersal of affordable housii).g twits
in the city'. More importantly, the map is to be used.to indicate no
geographic concentration of affordable housing exlsts in any particular area
Of Palm Springs. Co.nsideri.rrg this is a vital piece of.inlroo-nation mI which the
Planning Commission is rendeia.ng a decision, the trap is a public document
for public review. P.rovid.ing it at this late stage does not allow for adequate
public review.
6. The Staff Report contittuatlly refers to the need for very low income and low
income family housing units in the City. However, page 6 of the Staff Report
discusses the loss ara.d.:n.ot.�,-zep.lacezne�tt of atforciable housbig, Lul'Jts wi.thitt iihe
Redevelopment Project Area immediately north and ivest of this site. The
implication is that the Garden Springs Aparhrtents are t c placeu ant units for
those to be removed as pant of the Cit}%s intended rehabilitation program,
This begs the question if khe.re really.is a need For ad.ditiotial affordable
housing units in the City ? Or, is the City mismanaging its existing housing
resources? Or, is this an effort to misdirect public subsidies for affordable
liousing and the required. Redeveloprnenl hou.si.rrg set-aside funds?
'. Under Rcde'velopm.ent lave' (Sectian 33334.3 - the Lcm-' and Nlodcratc Incorne
Housing Pond) the following is required:
20% of the tax increment money generated within a Redevelopment
Project Area is to be sekaside for-lcm, anti moderate mcome lxxlsing.
Replacement housing within. the City, is required, for any lost units
within 6.e Project Area.
Since it is not clear if there is currently faX increment money being generated
in the Red e velo pment'Project Area, I assume this, is not the source of money
for the proposed project. To reitet•ate m)- contrnent above, h,ow exactly is the
developer able. to afford the capital costs of building a low income housing
project? Obviously a subsidy of some sort is involved, b-at riomrhere is it
explained or tine terms publicly disclosed.
:end, what rare the City's plans for roplaCitlg the housilIg it anticipates will be
lost in the Redevelopilrent Project Area?
A the proposed project being viewed b'y the City as "t�fore the face"
mitigation for the anticipated loss of affordable units? Is thereat p arpose of
George and Judith \tohacsp
200 E. Racquet Club Rd- , a50
palm Springs, CA 92262.
the project to 1Ytlfill legal obligations (meaning the required set-aside)? If this
is the case, legally the City needs to make the record clear as to ta%hy it is
approving this project.
S. Many residents have expressed their concern that approximately 50% of the
existing affordable housing units are concentrated in the general proximity of
the project site. Conversely, staff indicates the Market.Analysis for
A-fordable lousing concludes no ronceutrati.on of affordable units in the.
City exists. Plehrse help me to u.nderstar d which interpretation is accurate.
and ,%,hy.
9. The statement in the Staff:Report which discusses the Ci.ty's aggressive
prograrn to upgrade existing housing opportunities within the Desert
Highland Commuidty, not'th alvi west of the site, is in direct conflict with the
following sentence w.luch discuses the Loss of a ntunber of relatively
affordable housing touts as a result of the t'ehabi_titation program. The
conclusion of this paragraph is that the Garden Springs Apartrxtent project is
actually beneficial in the sense it can absorb some of the lost housing uruts.
Does this not imply some type of concentration of affordable housing units in
tl.re immediate area? It is also interesting that building more affordable
housing units is not a conrlpo.nent of the rehabilitation program, especially in
light of staf?s Continual insistence of the current l.ar:k of affordable family
un.lts. Could o.ne .reason for this be that affordable units do not generate
much tax increment revenue and., thus, are not considered a desirable use by
the .Redevelopment AgencY? 1 can see ,v1iy the Cite is pushing tivs project
since it also Considers low incoo-Le housing an undesirable use.
10. Is the property actually beiu re7,oned fi-om R-2 to Pla.n_tted Development
District? Or is the M designation, still the underlying zollbig?
I a. It seems a bit naY've to expect a property manager amit company to ensure
post-construction mi.ttg"Won for noise generated by tenants in the parking
area. Within the Mitigated Negative Declaration, statements are made related
to the need for code enforcement and property Maintenance, However,no
ntitigauon is provided other titan rnon.itorbig by an entity (meaning fhe
applicant'who is also the property mana.gen)er)t corrnpanyj the City has no
control, over. How will yoit ensure the cootplaints of adjacent resident's will
bQ attended to? Orxs strgt;estion .is to require the applicant to fund a
George and Juai*h Mohacs),
'200 E. Parquet CM Pa. a50
Palm Springs, CA 92'.,62
Corrtrrrunity cr.i.mewatch organization gjhotttd a certain n.uco.ber' of contptairits
be filed with the Police Departnien.t.
This issue- rllean.ing the a.chtal implementation of the proposed mitigation
measures - should have already been. addressed in the Mitigation 174oni.tor.-ing
Program required by Assembly Bill 3:150. As you well know, the MNIP is a
public docurnent, arIct 1 for one have neither seers it and therefore obviously
have a.lot had a chance to comment an it.
12. VVithout question, the fwiciamental. problem with staffs fiival
Study/rMitigated Negative Declat'adon is their continual reliance on what
CEQ,4 tfrms "after the fact wili,-ation." As I'm sure: they are aware, the
courts have consistently' ruled against public agencies who attempt to pass
this off a's adequate niitigaflon. In Sun.rish'mn v (:1984)
202 Cal. App, 3d 296, a.n -nd.ividua'I citizen challenged the Mendocino CO4nt-,
Board of Supervisors' decision to approve construction of a sewage ireatrnj=nt
plant to serve an existing developmmIi cc,nsistizlg of s srrutll motel, restau,t'ant,
and filling station., to which a larger motel, a restaurant, and apartments
? Ould, i,-, adders.
The county had prepared an Initial SludY supporting a Negative Declaration
for the proposed project. I'll(-, Initial shtdy/Negative Declaration cond.itic?a..eci
certain mitigation measures to be developed a.nd rmplementecl at a later date.
One of the reasons the. Irutial Shrd, /Negative Declaration cortcluded there
would be no potential for significant effects was because it required the
applicant to prepare a future hydrologic study which would recommend
appropriate mitigation measures to offset pote.ntial irrrpa.ets.
Tile Court of Appeal held that the ]nil ial Study/Vegativo D.)c laradon
violated CFQA, The court stated that, before approving the project, the
Counh' must first resolve the unc:ertainhes regarding the projeci s potential
sigruficaru envirorwien.tal, effects. The Court concluded that the success of the
nlitigati.oll determined by a later study was uncertain; therefore, the county
Could not have reasonably concluded that the project would not haw the
potental to .have significant envi:ronnien.tal effects. Also, the court found that
the county S deferral of the analysis of significant effects to a study [lie
applicant was preparing in the fun-urc was an in,aplvopriate delegation of its
CFQ-�\ cluties, Although the cou.nt�7llacl included a permitcondition
requiring subsequ.ertt county approval of a sludge cti.sposal plan, the Court
fowid it inadequate btcacise there was evidence that an environmentalh
sound disposal plan night not be achievable. The court also noted that both
the county public works department and the Coastal Commission had
recommended project dental until the potential problems could be solved,
George and Judith Mnhacs>'
200 E. Racquet Club Rd. . x50
paten Springs. CA 92262
The court held that the Initial Shady/Negative Declaration was ultimately
invalid because of a tack of substantial evidence supporting the county's
firid.in.g of no potential for significant impact. The court stated that the county
lead "evaded its reaponsi.bility to engage in comprehensive environmental
review." An Initial Study/Negative Declaration that relies on a future study
to determine if there are potentially significant effects is considered a failure
to comply with CEQA.
13. .It is assumed the implementation of security measures in accordance with
CITED (Crime Prevention Through Environmental Design) will ensure the
safety of both project.residents and ndjacent.reaidents. Dense landscaping in
and, of itself'is not a recogii..ized component of CPTJED. It is the strategic use
of landsca.pi.n , its placeulent and plant selection, wl.-lich determines its
effectiveness and appropriateness.
Who is to reliee-,v and approve (he landscape plans and ensure compliance as
well as ongaiaig maintenance? As far a,s I ani aware, Iandscape plans have
not yet been submitted, aiid therefore, have. not been made available for
public review. As this is an essential component in reducing security impacts
to less than significant levels, biefore the p.coject can,be approved, the public
must have a chance to review and coili.n:lent on the specific OPTED measures.
Either new mitigation must be proposed and tlae Nfitigated Negative
Declaration recirculated for public review, or an EIR should Lg-, prepared.
14. The Condition that vining should be trained to the wall and designed to
drape over the top of the wall (as a way to mitigate the "land use transition
zone') does nothing more tlian encroach upon a nei.ghbor's property, \,ot
only does this not raitigate an ijupac:t, It actually creates one.
13" How will dispersion of low income housing be monitored in the future': 1
assume the City is not aioni.toring the dispersion now as the hiring of a
consultant was necessary to find an answer.
16. Since no geotecluiicai or soils study'was conducted for this project, and the
site is underlain by alluvium, how can the City ensure there is no potential for
liquefaction or subsidence? Is this another example of a stuciv being pr.•epare.d
at a u.ture date?
17. Does the City of Palm Springs not require the i.inplenientatio.0 of Best
N4anagenientPractices c{urirtg cotistructiori? You. talk about an onsite
retention of sortie sort, yet fail to mention what exactly that is and what its
purpose is.
acorge and Judith Aluhacsy
2.011 G. Racquer. rich Rd- . '50
Palm Springs, CA 92262
13. How is the City going to ensure compliance 'witb its Nahoml Pollutal:lt
Discharge and Elimination Syste.ul (.NMES) permit as this project is
completed and the adjacent Redevelopment program undergoes
1mpl.enaentation? Cumulative water impacts are never adciressed.
19. Was a Traffic Study .not prepared because staff did not v.,ant to address tkle
issue of potential euintdative traffic impacts? Considering staff discusses the
imminent RedeveJopmer7t prograni adjacent, to [tie site, and the need for a bus
turnout, Like path, and 'the wideiung of the site's three adjacent streets, how
was the.need for this infi'astnicture determined without knowing both
project-generated traffic and the area's cumulative impacts?
20, Who is pavirrg for the street-widerlizrg an d Mils hu'n.-out? 5%That is the
tiMeframe for construction and. how exactly ivill it mitigate the project's
traffic impacts? Widening of the streets is neither a.mitigation measure (there
is Only an implication this will occiu•) nor a Condition of Approval, Who then
will ensure this improvement actually is constructed in a tiniely inanner?
21. What is the source of potable water?
?2. What is the current capacity of the stone drain systeri?
23. How i.na.ny cubic yards of grading is there for the project? And where will the
soil be dumped?
24. '.Nlitigatioc, (for waterinrpacts) states a tocit5eci drainage study may be
necessary even though staff coriciticies tilere are no impacts to water
reSOLI1'Ce5• Again, this is another exa.nlplc that a conclusion, was reached
Wit hout substantiat evidence, and that no public review teas afforded which
directly contravenes CEQA's public, d'isclOSllre itnper^ative. I can. only guess
that staff is uncertain of its decision since no Mitigation measures a.re
necessary when.a determination of No Impact is reached,
25. In the Air Quality section, there is a reference to employees, although no
Specific number is,provided, This has never lx-�=n mentioned before. How
many eulployees will there l,e? Also, reference to an assisted living.facility
was made for the first time, What exactly .is this facility?
26, It is difficult to understand staffs interpretation of a General Plan policy
which seems to effectively negate the need for a project to comply' with
Regiorta.l, Stale and Federal regulations. Without an Air Quality Analysis
having been prepared, how can it be deternun..ed will•, any certainty there are
George and JUdlth bJohacsy
200 C, Racquet Clot, Rd. , C50
Palm SPrings, rA 92262
no short-terns. construction .impacts, or long;-terns project i..rlipacts' Holy G in
t.he residents be assuxed the following thresholds are not being exceeded'?
The following sigzdfieance thresholds for construction etniesions Have been.
established by the SCAQMD. Projects In the South Coast Air Basin with
construction-related. ei-n lssions that exceed any of these entissiorr thresholds
could be considered to be.sigltiFicant:
2.5 tons per quarter or 75 pounds Per clay of ROC (reactiie organic
compounds)
2.5 gong per, quarter or 100 pounds per day of Nox (ni tropen. oxide)
24.75 tons per gtutrter or 550 pounds per da)7 of CO (carbon)
0.75 tons per quarter or )50 pounds per day of PJAIio (particulate Lna.t�er A
10 parts pe:r uiill:i.ort)
6.75 tons per quarter or 150 pou.ncis per day of Sox(sulhu' oxide)
Also, with respect to operational.emissions, specific criteria for determirdltg
whether the potential air quality i.rltpacts of a project are significant are set forth
in tire SCAQMD .Handbook - tvhiclt, accw•ding to staff, the project woul(l co111piv
with. The criter.a include ern.issions th.ra_sholds, rou:tpliattce with state and
standards and corrforutihl With the State .lwplementation flan
federal airqualitY
(.SIP) or consistency with the current Air Qualih �'la,.tagentent P1a.n. (AQ�II').
The daily oP=rational e.izt.issions "significa7tce" tl.r:esholds are:
Regional Lrn.issions Tluesholds
55 pounds per day of IOC
55 pounds per day of NO.x
550 po(I tds pe37 day of CC)
1.50 pounds per day of PNl.lo
150 pounds per, day of SOx
Projects in the Sotrt(r Coast Air Basin with operaiio.n related emissions that
exceed any of the entissio.n thresholds sh.ouid considered to be .si}n ficant
Local Fvii.9sion Stand.ayds
George and dudit.h 4I011acsy
200 P. Racquet Club Rd. , 350
Palm Sprin7S, CA 92262
California State I-.hour CO standard of 20.0 ppm
California State 8-hour CO standard of. 9,0 ppn?.
7.Ile si.gitiJicance of localized project impacts depends on�vhetlier ambient C.0
levels in the vicinity of the project are above or below state and federal CO
standards, If anibient levels are below the standards, a project is considered to
have significant impacts if project ezaiissions result ill a.n exceedance of orle'31'
more of these standards. If ambient levels already exceed a state or federal
standard, then project emissions are considered significant if they increase
a.utbi.ent concentrations by a measurable amount, The SCAQMD defines a
measurable anioujit as 7..0 ppm or more for the 1-hour CO concenb ation by or
0.4_'; ppm or more for the 8-hour CO concentrations.
Even though staff imp.li.es am bietit levels exceed some standard and it is
somehow, therefore, unfair to conduct' anti• fu.c Cher ami.ysis, project emissions can
still be considered significant if they increase ambient concentratons by a
treasurable amount. Does the project excced tliese amounts?
27, Are the two gates at the project entrances automated? Instead of reciuc'hig
traffic into the complex, they could conceivably cause cars to back-up Oil San
Rafael and SiIijois as people wait for the gate to open.
?8. It is interesting that staff htcs allowed the applicant to delenalitie the numbei
Of parking spaces which need to be Provr,deLL It is not surprising then a
waiver of 9 spaces is the resull',
29. The htidal. Studio/Mitigated Negative Declaration describes the area as being
sparsely covered wi.tlt native vegetation, Who is qualified to determine if this
is an endemic species or a volunteer wee.cl? 4Vhi.le staff fi'om the Planning
Division conducted this survey,was the person(s) a biologist or qual.i.fieci to
utake t1Us deterrrtination? The. species of na hive vegetation was never
men.tio'ned, What is' it? Is it either a U-neatened, enda.n.i eyed, or candidate
species as defined either: by the California Department of Fis.b and Game
(CDFG) or the United States Fish and Wildlife Service? Is it Jisted on CDl G's
Natural Diversity Database?
30. What are the current ambient noise levels for the Project site'?
33. What trtgt ers c:oczlpatiLiil.i.hl of housing within the Municipal Airport I'.A.R.
Part .1.50 Noise Compatibility, Study? 1-io,v will you ensure the lhabitability nt
the units given the Potential increase in anise levels?
George and Judith Mohacsy
200 E. RacyUet Club Rd. , -50
Palm Springg, C9 98262
32. Staff.indicates in the Initial Study that the Noise Compatibility Study is ztot
applicable to the project. Yet, the Mitigated Negative Declaratiork states the
piojoct will be co:astructed in Compliance with the Noise Study. Why does
the project have to comply if the Noise Study is rlot applicable?
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT('Agreement")is made as of 2000 by
and between GARDEN SPRINGS APARTMENTS, a California limited partnership ("GSA"),
having its principal place of business at 1010 Racquet Club Drive, Suite 103, Auburn, CA 95603,
and THE CITY OF PALM SPRINGS ('City"),a public body, corporate and politic, 3200 Tahquitz
Canyon Way, Palm Springs, CA 92262.
RECITALS
A. WHEREAS, GSA is the proposed developer of the Garden Springs Apartments
('Project"),a 60 unit apartment complex to be located at the south east comer of Indian Canyon and
San Rafael in Palm Springs; and
B. WHEREAS, GSA has agreed that all units in the Project will be occupied by low and
moderate income households for a period of not less than 55 years pursuant to the requirements of
Internal Revenue Code Section 42,and,therefore,pursuant to California Government Code Section
65915, the City is obligated to grant to GSA a density bonus of not less than 25% and at least one
other incentive, such as an adjustment in site development requirements; and
C. WHEREAS,GSA submitted to the City an application for Planned Development District,
Case Number 5.0805-PD 255 ("PDD"), which PDD requests a density bonus of less than 16% and
an adjustment in certain site development requirements; and
D. WHEREAS,pursuant to its obligation under California Government Code Section65915,
on January 19, 2000,the City approved the PDD; and
E. WHEREAS, a group of Palm Springs residents opposed to the Project because it is an
affordable housing project have submitted a petition (Petition") for a referendum which would
repeal the City's approval of the PDD ("Referendum"); and
F. WHEREAS, the City has determined that the Petition fails to state a proper subject for
a referendum in that it impermissibly attempts to overturn an adjudicative action of the City; is
contrary to state laws, including but not limited to state statutes regarding affordable housing, an
area in which the state has occupied the field; and is contrary to the City's General Plan; and
G. WHEREAS,finding that the Petition fails to state a proper subject for a referendum,the
City finds that the Petition is invalid, and the City further finds that it is in the best interests of the
public and the City to avoid placing an invalid referendum on the ballot; and
H. WHEREAS,both the City and GSA acknowledge that if the City determines not to place
the Referendum on the ballot as demanded by the Petition, the City is exposed to suit from the
proponents of the Petition; and
;a
EPWCEM GROUANDEMNITV AGflnMNT REV.3/31/W 1 J. b ,A
T �
I. WHEREAS,pursuant to the conditions of approval for the PDD, GSA has an obligation
to indemnify and defend the City from any claims, costs, or liabilities arising because of the City's
approval of the Project and the PDD.
NOW,THEREFORE,for good and valuable consideration,the receipt and legal sufficiency
of which is hereby acknowledged, GSA hereby agrees, covenants, represents and warrants for the
benefit of the City as follows:
1. Indemnity. In the event that the City finds that the Petition fails to state a proper subject
for a referendum and therefore decides not to place the Referendum, and if the City is therefore
subject to suit seeking to overturn that decision or seeking other relief as the result of that decision,
then GSA hereby agrees to pay,guaranty,protect,defend and hold City harmless and indemnify City
from and against any and all suits, actions, proceedings, claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable attorneys' fees actually incurred by the City
pursuant to this Agreement as well as any attorneys' fees which may be imposed against the City in
the event that the Referendum proponents prevail in a lawsuit) (collectively the "Costs"), resulting
from, due to, or caused by the City's decision not to place the Referendum on the ballot. Except as
expressly provided herein, GSA hereby agrees that its obligations hereunder shall be continuing,
absolute and unconditional under any and all circumstances and are not subject to any reduction,
limitation, impairment,termination, defense, set-off, counterclaim in recoupment whatsoever.
2. Indemnification Procedure.
a. In the event that the City receives service of any claim or lawsuit("Claim")arising
directly or indirectly from the City's decision not to place the Referendum on the ballot,then the City
shall within three(3)business day,provide to GSA a copy of any such Claim. Within five(5)days
of receipt of notice of such Claim, GSA shall advise the City of the identity of the counsel GSA
intends to engage for said defense("GSA Counsel"),which counsel shall be reasonably acceptable
to the City. The City shall have the right to engage separate counsel("City Attorney")to the extent
necessary to assure the City that its rights are adequately protected in the defense of any Claim,
provided however, that GSA shall be obligated to bear the cost of at most only one such law firm
to act as separate counsel. GSA shall pay all fees and costs billed by the GSA Counsel. In addition
to payment of all fees and costs billed by the GSA Counsel, upon demand, GSA shall also pay, or
in the sole discretion of the City, reimburse the City for the payment of any Costs incurred by the
City in connection withthe defense of any Claim,including without limitation,reasonably attorneys'
fees actually billed by the City Attorney in connection with the defense of any Claim.
b. It is generally anticipated that GSA Counsel shall have the lead with respect to
evaluating,responding and conducting the litigation,but ultimately the City retains the right to make
independent decisions and shall not be bound by the advice or actions of GSA. The City retains the
right to settle or abandon the action, provided that at least five (5) days notice of such proposed
action is given to GSA and farther provided that should such action be taken by City against the
wishes of GSA,GSA shall have no further obligation to reimburse the City's legal expenses nor shall
EPWCGM GROCP EM II AGMEE TREV:MI/"" 2
GSA have any further indemnity obligation, although GSA shall have no right to recover sums
already paid on the City's behalf. Moreover, in such event, GSA's waiver of claims pursuant to
Paragraph 3 herein shall be revoked. In the event the matter is prosecuted to judgment in the trial
court,and the judgment is against GSA and the City,the City shall have no obligation to appeal, and
should the City decline to do so, GSA's indemnity obligation shall remain in full force and effect,
and the waiver of claims pursuant to Section 3 herein shall remain in full force and effect. The
foregoing notwithstanding,nothing contained herein shall be interpreted as limiting GSA's right,as
real party in interest, to appeal any adverse judgment even though the City may decline to do so.
c. All Costs shall be immediately reimbursable to the City when and as incurred and,
in the event of any litigation, claim or other proceedings,without any requirement of waiting for the
ultimate outcome of such litigation, claim or other proceedings. GSA shall pay to the City any and
all Costs within thirty(30)days after its receipt of written notice from the City itemizing the amounts
thereof incurred to the date of such notice. In addition to any other remedy available for the failure
of GSA periodically to pay such Costs, such Costs, if not paid within said thirty (30) day period,
shall bear interest at the rate of 10%per annum from the date incurred until the date they are paid
in full by GSA to the City.
In the course of any litigation or proceeding which is the subject of GSA's indemnity
obligation under the terms of this Agreement,if the City is awarded attorneys' fees and costs, then
such award shall first be used to pay any then unreimbursed Costs,and the remaining balance of any
such award of attorneys' fees and costs to the City shall be and is hereby assigned to GSA to
reimburse GSA for the cost of defending any Claim on behalf of the City and itself.
3. Waiver of Claims. GSA has contended that it must complete the Project by December
31,2000 in order to qualify for certain federal tax credits and that it will suffer monetary damages
if it does not complete the Project by that time. In consideration for the City's agreements and
actions under this Agreement, GSA.hereby waives and releases any claims or causes of action
against the City,whether known or unknown,based upon the contention that anv act or onrission of
the City occurring prior to the effective date of this Agreement caused or contributed to any delay
in completing the Project. In furtherance of GSA's intention to waive such claims, GSA expressly
waives any rights or benefits conferred by the provisions of Civil Code §1542,which provides as
follows: "A general release does not extend to the claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release,which if known by him must
have materially affected his settlement with the debtor." GSA acknowledges and represents it
has consulted with legal counsel before executing this Agreement and that it understands its
meaning,including the effect of Civil Code§1542,and expressly consents that this Agreement shall
be given full force and effect according to each and every express term and provision.
EPWCEMGRGUPI EM TYAG0. ENMNTREV:MUM 3
4. Miscellaneous.
a. Remedies for Default. In the event that either party breaches its obligations
hereunder, then the non-breaching party shall be entitled to pursue, in addition to any remedies
specifically set forth herein, any and all other remedies available at law or in equity for such breach.
b. Reliance. GSA acknowledges that without GSA entering into this Agreement,the
City would have placed the Referendum on the ballot. Accordingly, GSA intentionally and
unconditionally enters into the covenants and agreements as set forth above and understands that,
in reliance upon and in consideration of such covenants and agreements,the City has determined not
to place the Referendum on the ballot,an action the City would not have taken but for such reliance.
c. Successive Actions. A separate right of action hereunder shall arise each time the
City acquires knowledge of any matter indemnified or guaranteed by GSA under this Agreement.
Separate and successive actions may be brought hereunder to enforce any of the provisions hereof
at any time and from time to time. No action hereunder shall preclude any subsequent action, and
GSA hereby waives and covenants not to assert any defense in the nature of splitting of causes of
action or merger of judgments.
d. Notice. All notices under this Agreement shall be in writing and delivered to each
party at the address set forth above or, in the event of a change in any address or fax number, then
to such other address or fax number as to which notice of the change is given. Copies of all notices
sent to the parties hereunder shall also be sent to the parties' respective attorneys as directed in
writing by the parties.
e. Amendment and Waiver. This Agreement may be amended only by an instrument
in writing signed by both of the parties hereto, and no provision of this Agreement and no right or
obligation of either party under this Agreement may be waived except by an instrument in writing
signed by the waiving party.
California. £ Governing Law. This Agreement shall be governed by the laws of the State of
g. Section Headings. Section headings are for convenient reference only and shall
not affect the meaning or have any bearing on the interpretation of any provision of this Agreement.
h. Attorneys' Fees. In the event that either party breaches its obligations hereunder,
then the non-breaching party shall be entitled to recover any fees and costs, including without
limitation, reasonably attorneys' fees, incurred by the non-breaching parry to enforce its rights
hereunder.
EPWCEM GROUP/ EMM 'AGREENffi REV 3f I/W 4
IN WITNESS WHF 0F,tbie Agreement has been executed and is effective as of
the date first written above.
GARDEN SPRINGS APARTMENTS, a
California limited parntemhip
By:
Edward Mackay, General Pate
THE CITY OF PALM SPRINGS
By:
City Manager
Attest:
City Clerk
APPROVED AS TO FORM:
Rutan k Tuektr,Attorneys for
The City of Palm SpTings
mmCGRDUmmu a,vAsmm=uv,aeUn 5
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT("Agreement")is made as of 12000 by
and between GARDEN SPRINGS APARTMENTS, a California limited partnership ("GSA"),
having its principal place of business at 1010 Racquet Club Drive, Suite 103, Auburn, CA 95603,
and THE CITY OF PALM SPRINGS ("City"),a public body, corporate and politic, 3200 Tahquitz
Canyon Way, Palm Springs, CA 92262.
RECITALS
A. WHEREAS, GSA is the proposed developer of the Garden Springs Apartments
('Project"),a 60 unit apartment complex to be located at the south east corner of Indian Canyon and
San Rafael in Palm Springs; and
B. WHEREAS, GSA has agreed that all units in the Project will be occupied by low and
moderate income households for a period of not less than 55 years pursuant to the requirements of
Internal Revenue Code Section 42,and,therefore,pursuant to California Government Code Section
65915, the City is obligated to grant to GSA a density bonus of not less than 25% and at least one
other incentive, such as an adjustment in site development requirements; and
C. WHEREAS,GSA submitted to the City an application for Planned Development District,
Case Number 5.0805-PD 255 (PDD"),which PDD requests a density bonus of less than 16% and
an adjustment in certain site development requirements; and
D. WHEREAS,pursuant to its obligationunder California Government Code Section 65915,
on January 19, 2000, the City approved the PDD; and
E. WHEREAS, a group of Palm Springs residents opposed to the Project because it is an
affordable housing project have submitted a petition ('Petition") for a referendum which would
repeal the City's approval of the PDD ('Referendum");and
F. WHEREAS, the City has determined that the Petition fails to state a proper subject for
a referendum in that it impermissibly attempts to overturn an adjudicative action of the City; is
contrary to state laws, including but not limited to state statutes regarding affordable housing, an
area in which the state has occupied the field; and is contrary to the City's General Plan; and
G. WHEREAS,finding that the Petition fails to state a proper subject for a referendum,the
City finds that the Petition is invalid, and the City further finds that it is in the best interests of the
public and the City to avoid placing an invalid referendum on the ballot; and
H. WHEREAS,both the City and GSA acknowledge that if the City determines not to place
the Referendum on the ballot as demanded by the Petition, the City is exposed to suit from the
proponents of the Petition; and
F1'WC9M GROUP/Q:DEhW17Y AGRE�fEM REV a/l I/00 I
I. WHEREAS,pursuant to the conditions of approval for the PDD, GSA has an obligation
to indemnify and defend the City from any claims, costs,or liabilities arising because of the City's
approval of the Project and the PDD.
NOW,THEREFORE,for good and valuable consideration,the receipt and legal sufficiency
of which is hereby acknowledged, GSA hereby agrees, covenants, represents and warrants for the
benefit of the City as follows:
1. Indemnity. In the event that the City finds that the Petition fails to state a proper subject
for a referendum and therefore decides not to place the Referendum, and if the City is therefore
subject to suit seeking to overturn that decision or seeking other relief as the result of that decision,
then GSA hereby agrees to pay,guaranty,protect,defend and hold City harmless and indemnify City
from and against any and all suits, actions, proceedings, claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable attorneys' fees actually incurred by the City
pursuant to this Agreement as well as any attorneys' fees which may be imposed against the City in
the event that the Referendum proponents prevail in a lawsuit) (collectively the"Costs"),resulting
from,due to, or caused by the City's decision not to place the Referendum on the ballot. Except as
expressly provided herein, GSA hereby agrees that its obligations hereunder shall be continuing,
absolute and unconditional under any and all circumstances and are not subject to any reduction,
limitation, impairment,termination, defense, set-off, counterclaim in recoupment whatsoever.
2. Indemnification Procedure.
a. In the event that the City receives service of any claim or lawsuit("Claim")arising
directly or indirectly from the City's decision not to place the Referendum on the ballot,then the City
shall within three(3)business day,provide to GSA a copy of any such Claim. Within five(5)days
of receipt of notice of such Claim, GSA shall advise the City of the identity of the counsel GSA
intends to engage for said defense("GSA Counsel"),which counsel shall be reasonably acceptable
to-the City. The City shall have the right to engage separate counsel("City Attorney")to the extent
necessary to assure the City that its rights are adequately protected in the defense of any Claim,
provided however, that GSA shall be obligated to bear the cost of at most only one such law firm
to act as separate counsel. GSA shall pay all fees and costs billed by the GSA Counsel. In addition
to payment of all fees and costs billed by the GSA Counsel,upon demand, GSA shall also pay, or
in the sole discretion of the City, reimburse the City for the payment of any Costs incurred by the
City in connection withthe defense of any Claim,including without limitation,reasonably attorneys'
fees actually billed by the City Attorney in connection with the defense of any Claim.
b. It is generally anticipated that GSA Counsel shall have the lead with respect to
evaluating,responding and conducting the litigation,but ultimately the City retains the rightto make
independent decisions and shall not be bound by the advice or actions of GSA. The City retains the
right to settle or abandon the action, provided that at least five (5) days notice of such proposed
action is given to GSA and further provided that should such action be taken by City against the
wishes of GSA,GSA shall have no further obligation to reimburse the City's legal expenses nor shall
EPIT/CBM GROMMDEM IWAGREE1.=REV:M11W 2
GSA have any further indemnity obligation, although GSA shall have no right to recover sums
already paid on the City's behalf. Moreover, in such event, GSA's waiver of claims pursuant to
Paragraph 3 herein shall be revoked. In the event the matter is prosecuted to judgment in the trial
court,and the judgment is against GSA and the City,the City shall have no obligation to appeal,and
should the City decline to do so, GSA's indemnity obligation shall remain in full force and effect,
and the waiver of claims pursuant to Section 3 herein shall remain in full force and effect. The
foregoing notwithstanding,nothing contained herein shall be interpreted as limiting GSA's right,as
real party in interest, to appeal any adverse judgment even though the City may decline to do so.
c. All Costs shall be immediately reimbursable to the City when and as incurred and,
in the event of any litigation, claim or other proceedings,without any requirement of waiting for the
ultimate outcome of such litigation,claim or other proceedings. GSA shall pay to the City any and
all Costs within thirty(30)days after its receipt of written notice from the City itemizing the amounts
thereof incurred to the date of such notice. In addition to any other remedy available for the failure
of GSA periodically to pay such Costs, such Costs, if not paid within said thirty (30) day period,
shall bear interest at the rate of 10%per annum from the date incurred until the date they are paid
in full by GSA to the City.
In the course of any litigation or proceeding which is the subject of GSA's indemnity
obligation under the terms of this Agreement, if the City is awarded attorneys' fees and costs,then
such award shall first be used to pay any then unreimbursed Costs,and the remaining balance of any
such award of attorneys' fees and costs to the City shall be and is hereby assigned to GSA to
reimburse GSA for the cost of defending any Claim on behalf of the City and itself.
3. Waiver of Claims. GSA has contended that it must complete the Project by December
31, 2000 in order to qualify for certain federal tax credits and that it will suffer monetary damages
if it does not complete the Project by that time. In consideration for the City's agreements and
actions under this Agreement, GSA hereby waives and releases any claims or causes of action
against the City,whether known or unknown,based upon the contention that any act or omission of
the City occurring prior to the effective date of this Agreement caused or contributed to any delay
in completing the Project. In furtherance of GSA's intention to waive such claims, GSA expressly
waives any rights or benefits conferred by the provisions of Civil Code §1542,which provides as
follows: "A general release does not extend to the claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release,which if known by him must
have materially affected his settlement with the debtor." GSA acknowledges and represents it
has consulted with legal counsel before executing this Agreement and that it understands its
meaning,including the effect of Civil Code§1542,and expressly consents that this Agreement shall
be given full force and effect according to each and every express term and provision.
UIVCBM GROUP/MDEMMTYAGRE[ME\'T REV.3/311W 3
4. Miscellaneous.
a. Remedies for Default. In the event that either party breaches its obligations
hereunder, then the non-breaching party shall be entitled to pursue, in addition to any remedies
specifically set forth herein,any and all other remedies available at law or in equity for such breach.
b. Reliance. GSA acknowledges that without GSA entering into this Agreement,the
City would have placed the Referendum on the ballot. Accordingly, GSA intentionally and
unconditionally enters into the covenants and agreements as set forth above and understands that,
in reliance upon and in consideration of such covenants and agreements,the City has determined not
to place the Referendum on the ballot,an action the City would not have taken but for such reliance.
c. Successive Actions. A separate right of action hereunder shall arise each time the
City acquires knowledge of any matter indemnified or guaranteed by GSA under this Agreement.
Separate and successive actions may be brought hereunder to enforce any of the provisions hereof
at any time and from time to time. No action hereunder shall preclude any subsequent action, and
GSA hereby waives and covenants not to assert any defense in the nature of splitting of causes of
action or merger of judgments.
d. Notice. All notices under this Agreement shall be in writing and delivered to each
party at the address set forth above or, in the event of a change in any address or fax number, then
to such other address or fax number as to which notice of the change is given. Copies of all notices
sent to the parties hereunder shall also be sent to the parties' respective attorneys as directed in
writing by the parties.
e. Amendment and Waiver. This Agreement may be amended only by an instrument
in writing signed by both of the parties hereto, and no provision of this Agreement and no right or
obligation of either party under this Agreement may be waived except by an instrument in writing
signed by the waiving party.
f. Governing Law. This Agreement shall be governed by the laws of the State of
California.
g. Section Headings. Section headings are for convenient reference only and shall
not affect the meaning or have any bearing on the interpretation of any provision of this Agreement.
h. Attorneys' Fees. In the event that either party breaches its obligations hereunder,
then the non-breaching party shall be entitled to recover any fees and costs, including without
limitation, reasonably attorneys' fees, incurred by the non-breaching party to enforce its rights
hereunder.
UWCBM GROUP/MOEMMTY'AGR ENMM'REV 35110 4
IN WITNESS %7MREOF,this Agreement has been executed and is effective as of
the date first writtt n above,
GARDEN SPRINGS APARTtvMNTS, a.
California limited partnership
BY:
Edward Mackay, General Farmer
THE CITY OF PALM SPRINOS
By:
City Manager
Attest:
City Clerk
APPROVED AS TO FOW:
Rutan& Tucker,Attorneys for
The City of Palm Springs
vFviceKcnnurmme.amrr ,natataxrwv:enrm 5
RESOLUTION NO NOT USED
OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS,
CALIFORNIA, CALLING AND GIVING NOTICE OF HOLDING OF
A SPECIAL MUNICIPAL ELECTION TO BE HELD ON JULY 11,
2000 FOR THE PURPOSE OF SUBMITTING TO THE QUALIFIED
VOTERS OF SAID CITY, A REFERENDUM MEASURE
CONCERNING ORDINANCE 1579, GARDEN SPRINGS.
- ---- - --- - --
WHEREAS a Referendum petition against Ordinance 1579, amending the Zoning Map by
approving a change of zone from R-2 (Limited Multiple Family Residential Zone) to
Planned Development District 255 at the southeast corner of Indian Canyon Drive and San
Rafael Drive, Section 2, as adopted by the City Council on February 2, 2000; and
WHEREAS the City Clerk has verified the signatures contained therein, and has certified
that the petition qualifies under provisions of the California Elections Code, to enable the
City Council to repeal the said Ordinance, or to submit same to a special election of the
electorate of the City of Palm Springs; and
WHEREAS, the City Council has determined to place said matter before the qualified
voters of the City of Palm Springs; and
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Palm Springs, as
follows:
Section 1. That there shall be and there is hereby ordered a special municipal
election, to be consolidated with the established general election date to be
held July 11, 2000, for the purpose of submitting to the qualified electors of
said City, the following measure, to wit:
MEASURE
Shall Ordinance 1579 amending the zoning map by a change of zone from
R-2 (limited multiple family residential zone) to Planned Development
District 255 at the southeast corner of Indian Canyon Drive and San Rafael
Drive, Section 2 be adopted?
Section 3. That the proposed measure submitted to the voters is attached as Exhibit
A.
Section 4. That the City Clerk is hereby directed to transmit a copy of the measure set
forth in Section 1 above to the City Attorney, who shall prepare an impartial
analysis of the measure in accordance with Section 9280 of the California
Elections Code.
Section 5. That such measure shall be designated on the ballot by a letter printed on
the left margin of the square containing a description of the measure, as
provided by Section 13116 of the Elections Code.
In the event the measure receives a greater number of YES votes than NO
votes, the measure shall be deemed supported by the voters.
In the event a measure receives a greater number of NO votes than YES
votes, the measure shall be deemed unsupported by the voters. 11D
Page 2
Resolution
Section 6. The ballots to be used at said election shall be, both as to form and matter
contained therein, such as may be required by law to be used thereat.
Section 7. The City Clerk of said City is hereby authorized, instructed and directed to
procure and furnish, through the Registrar of Voters for the County of
Riverside of other resource as necessary, any and all official ballots,
notices, printed material and all supplies, equipment and paraphernalia that
may be necessary in order to properly and lawfully conduct said election.
Section 8. The polls for said election shall be open at seven o'clock a.m, on the day of
said election and shall remain open continuously from said time until eight
o'clock p.m. of the same day when said polls shall be closed, except as
provided in Section 14401 of the Elections Code of the State of California.
Section 9. In all particulars not recited in this Resolution, said election shall be held
and conducted as provided by law for holding consolidated municipal
elections in said City.
Section 10. Notice of time and place of holding said election is hereby given and the
City Clerk is hereby authorized, instructed and directed to give such further
or additional notice of said election, in time, form and manner as required
by law.
Section 11. That the City Clerk shall reimburse said County, or other resource, for
services performed when the work is completed and upon presentation to
the City of a properly approved bill.
Section 12. Pursuant to Section 10263 of the Elections Code of the State of California,
the canvass of the Special Municipal Election to be held in said City is
hereby ordered to be made by the City Clerk, and the Registrar of Voters of
said County.
Section 13. The City Clerk of said City shall cause to be complete the canvass of said
election and shall certify the results to the City Council on August 8, 2000.
ADOPTED this_day of 2000.
AYES:
NOES:
ABSENT:
ATTEST:
CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVISED &APPROVED: __
ORDINANCE NO. 1579
AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA
AMENDING THE ZONING MAP BY APPROVING A CHANGE OF ZONE
FROM R-2 (LIMITED MULTIPLE FAMILY RESIDENTIAL ZONE) TO
PLANNED DEVELOPMENTDISTRICT255 ATTHE SOUTHEAST CORNER OF
INDIAN CANYON DRIVE AND SAN RAFAEL DRIVE, SECTION 2.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA DOES ORDAIN AS
FOLLOWS:
SECTION 1. Pursuant to Section 9407.00B-6 of the Palm Springs Zoning Ordinance, the official
zoning map of the City of Palm Springs referred to herein, is hereby amended as follows:
Change of Zone from R-2 to Planned Development District No. 255.
The parcel of property legally shown on Exhibit A is approved for a change of zone from R-2,
specifically the 3.63 acre project site for a Planned Development District for the development of a 60
unit very low and low income residential apartment project located at the southeast comer ofIndian
Canyon Drive and San Rafael Drive, Section 2.
SECTION 2. EFFECTIVE DATE. This Ordinance shall be in full force and effect thirty(30) days
after passage.
SECTION 3. PUBLICATION. The City Clerk is hereby ordered to and directed to certify to the
passage of this Ordinance, and to cause the same or summary thereof or a display advertisement,duly
prepared according to law, to be published in accordance with law.
ADOPTED this 2nd day of February , 2000.
AYES: Members Hodges, Oden, Reller-Spurgin and Mayor Kleindienst
NOES: None
ABSENT: None
ABSTAIN: Member Jones
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
7
City Clerk 'Mayor
REVIEWED &APPROVED AS TO FO
I HEREBY CERTIFY THAT the foregoing Ordinance 1579 was duly adopted
by the City Council of the City of Palm Springs, California, in a '
meeting held on the 2nd day of February, 2000; and that same was duly
published in the DESERT SUN, a newspaper of general circulation on
February 9, 2000.
PATRICIA A. SANDERS
City Clerk
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RESOLUTION NO. NOT USED
OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA,
AUTHORIZING CERTAIN OF ITS MEMBERS TO FILE WRITTEN ARGUMENTS
REGARDING CITY MEASURE.
WHEREAS a Special Municipal Election is to be held in the City of Palm Springs,
California, July 11, 2000, at which there will be submitted to the qualified electors of said
City, the following measure(s):
[ ] Shall the Ordinance amending the Zoning Map by approving a
change of zone from R-2 (Limited Multiple Family Residential Zone) to Planned
Development District 255 at the southeast corner of Indian Canyon Drive and San
Rafael Drive, Section 2, be adopted?
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Palm Springs,
that the City Council, being the legislative body of said City, hereby authorizes:
member(s) of said body, to file written arguments in for/against the City measure set forth
in the recitals hereof in accordance with Article 4, Chapter 3, Division 9 of the Elections
Code of the State of California, and to change said arguments until and including the date
fixed by the City Clerk after which no arguments for or against said City measure may be
submitted to the City Clerk.
ADOPTED this_day of 2000.
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED '7 6r
APPROVED:
RESOLUTION NO. 19769
OF THE CITY COUNCIL OF THE CITY OF PALM
SPRINGS, CALIFORNIA, DETERMINING THE PETITION
FILED REGARDING ORDINANCE 1579 AS INVALID AND
APPROVING AN INDEMNITY AGREEMENT PROVIDED
BY CBM GROUP TO DEFEND ANY LITIGATION
REGARDING SAME.
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Palm
Springs, California as follows:
Section 1. In accordance with the advice of the City Attorney,
determines that the petition filed against Ordinance 1579 is
invalid and fails to state a proper subject for referendum.
Section 2. Approves the indemnity agreement between the City of Palm
Springs and CBM Group, pursuant to PDD Condition #1A,
regarding the referendum filed against Ordinance 1579.
ADOPTED this 5" day of April, 2000.
AYES: Members Hodges, Oden, Reller-Spurgin and Mayor Kleindienst
NOES: None
ABSENT: None
ABSTAIN: Member Jones
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED & APPROVED AS TO FORM
17C