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7/5/2017 - STAFF REPORTS - D.1.
pplM dp Z W V N w w ,s « �Owro,«na' ' if it City Council Staff Report DATE: JULY 5, 2017 UNFINISHED BUSINESS SUBJECT: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, COMPLYING WITH WRIT OF MANDATE, REQUIRING ELIMINATION OF THE EVENT AREA FROM PLANNED DEVELOPMENT DISTRICT PD-374, THE 750 LOFTS" PROJECT LOCATED AT 750 N. PALM CANYON DRIVE, CONFIRMING CONFORMITY WITH THE CITY'S MUNICIPAL CODE WITH REGARD TO PARKING, AND OTHERWISE AFFIRMING APPROVAL OF PD-374, INTROCUDTION OF A RELATED ORDINANCE AFFIRMING APPROVAL OF PLANNED DEVELOPMENT DISTRICT 374, AND A RELATED RESOLUTION AFFIRMING APPROVAL OF A MAJOR ARCHITECTURAL APPLICATION AND CONDITIONAL USE PERMITS FROM: David Ready, City Manager BY: Edward Kotkin, City Attorney SUMMARY: The Writ of Mandate issued in relation to this project's consideration by the Superior Court required that the City adequately address all parking issues, including event space parking, as required by the Palm Springs Municipal Code. In harmony with the writ, the Court's judgment in this matter granted the writ only as to the issue of parking, noting the City's failure to consider the event space in calculating required parking, and denying the writ on all other grounds. The effect of the Resolution drafted and recommended to the Council for adoption is implementation of the Court's direction, per the writ and in accord with the judgment, in the context of an affirmation of the original approval of the project in September 2015. As the original staff report for June 21, 2017 noted, and the supplemental staff report for that same meeting expanded upon, the Council has other options. The Council has absolute discretion in this case, but must take some action on July 5. 2017. The return to the Court's Writ is due on July 6, 2017. ITEM NO, D.I City Council Staff Report July 5, 2017 - Page 2 750 Lofts Project, Compliance with Writ RECOMMENDATION: Take one of the following actions: 1. Approve the 750 Lofts" project as follows. a. Adopt "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, COMPLYING WITH WRIT OF MANDATE, REQUIRING ELIMINATION OF THE EVENT AREA FROM PLANNED DEVELOPMENT DISTRICT PD-374, THE 750 LOFTS" PROJECT LOCATED AT 750 N. PALM CANYON DRIVE, CONFIRMING CONFORMITY WITH THE PALM SPRINGS MUNICIPAL CODE WITH REGARD TO PARKING, AND OTHERWISE AFFIRMING APPROVAL OF PD-374." b. Waive the reading of text in its entirety, read by title only, and introduce for first reading Ordinance No. , AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AFFIRMING APPROVAL OF PLANNED DEVELOPMENT DISTRICT 374 (CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ). c. Adopt "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AFFIRMING APPROVAL OF A MAJOR ARCHITECTURAL APPLICATION AND CONDITIONAL USE PERMITS (CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ)." 2. Reject the 750 Lofts" project as follows. Affirm the May 3 rescission of the PDD (Ordinance 1886), and the MAJ and CUPs (Resolution 23899). Rescind Resolution 23898 adopting the mitigated negative declaration ("MND") for this project, and Resolution 23900 approving the general plan amendment ("GPA") for this project. 3. Determine that the Council lacks sufficient information to decide whether to approve or deny the 750 Lofts" project at this time, and send the project, or a portion thereof, to the Historic Site Preservation Board and/or Planning Commission for further consideration with direction from the Council. 4. Express an intent to approve the 750 Lofts" project including the event space, but resolving all parking issues under the Palm Springs Municipal Code via a modification as to the scope and nature of the project as newly approved, e.g., a decision to approve the project with fewer hotel rooms, fewer seats in the restaurant and lounges, etc. 5. Express an intent to approve the 750 Lofts" project inclusive of the event space as per alternative #4, but with the addition or removal of specific conditions of approval. 6. Express an intent to approve the 750 Lofts" project excluding the event space, but with the addition or removal of specific conditions of approval. �2 City Council Staff Report July 5, 2017 - Page 3 750 Lofts Project, Compliance with Writ DISCUSSION. The Council now makes its decision as to the manner in which it wants to comply with the Court's Writ of Mandate related to this project. Each of these alternatives will place this item on the City Council agenda once more. That said, action now is essential so that the City does not violate the Court's Writ, which required that past approvals be set aside until the City "adequately addressed all parking issues, including event space parking, as required by the City's Municipal Code." In taking whatever action is desired by the Council, the City of Palm Springs will be doing what the Court ordered, and legal counsel for the developer can prepare a Return to the Writ consistent with the action. The City's return must be filed with the Clerk of the Superior Court on July 6, 2017. The proposed Resolution that has been before the Council before, now complemented by an Ordinance and a second Resolution encompass the City's fullest conceivable response to the Writ that affirms the approvals of the 750 Lofts project. If the Council wants to approve the project with the only modification being the removal of the event space, this matter will only return to the Council's agenda for second reading of the Ordinance. The proposed Ordinance and the second Resolution specific to affirmation of the approval of the major architectural application and conditional use permits reflect the City's determination to eliminate potential challenges against the City's action if the Council wants to approve the project without further hearings, and exclusive of any changes except removal of the event space. If the Council decides to pursue any of the other alternatives outlined above (alternatives 2 through and including 6, or a combination thereof), there will be a more substantive second step to the City's response to the Writ. Alternative #2 completes a rescission of all land use entitlements originally approved by the City Council in September 2015. Such a rescission, unlike the summary minute action taken on May 3, 2017, should be based upon factual findings in denial of the entitlements as now reconsidered and rejected by the Council. In the event that the Council wishes to pursue this alternative, staff requests time to prepare a Resolution stating the Council's determinations, upon reconsideration, in support of the new denial of the project. With the Council's assistance, these findings will be as specific as possible, and include, without limitation, a Council determination of whether the event space is a part of the project, and whether the project as denied provides adequate parking in relation to the project's full scope as considered by the Council. If the Council opts to pursue alternative #3 and the developer decides to continue to pursue the entitlement of this project, the HPSB and/or the Planning Commission will be considering this project again, and there can be no certainty that it will return to the City Council. This alternative effectively places this project back to "square one." In the event that the Council wishes to pursue this alternative, staff requests time to prepare at least a resolution consistent with the Council's direction, so that the HSPB and/or Planning Commission has a clear statement of what the Council wants. The only limitation upon 03 City Council Staff Report July 5, 2017 - Page 4 750 Lofts Project, Compliance with Writ what the HSPB and/or Planning Commission does/do is that any project approval, with the project ultimately revised per Board and/or Commission input and Council decision, must adequately addresses all parking issues, including event space parking, as required by the Palm Springs Municipal Code. Pursuit of alternative #4, #5, or#6 will require extensive staff work. In the event that the Council wishes to pursue any of these alternatives, staff requests time to prepare a staff report, and as necessary and appropriate, an Ordinance, and Resolution(s) consistent with the Council's direction. The only limitation upon what the Council does is that any project approval, with the project revised per Council direction, must adequately addresses all parking issues, including event space parking, as required by the Palm Springs Municipal Code. This Council is reminded that the list of alternatives in the recommendation is illustrative, not exhaustive. The issue with the 750 Lofts, LLC legal entity has been resolved since publication of the supplemental staff report. The Council is reminded that per the developer's attorney and consistent with the company's newly filed statement of information, the only member, and only manager of 750 Lofts, LLC is David Jankilevitsch. Also per the developer's lawyer, Mr. Jankilevitsch is also the only investor in the company. Finally, upon inquiry, the developer's attorney has indicated that neither John Wessman nor Richard Meaney has ever invested in this project. During the public hearing on June 21, 2017, discussion among Councilmembers suggested that the Council would like to see a transcript from the hearing on the Writ. Legal counsel for the community group that sued the City transmitted that transcript to the Councilmembers the following day, and that transcript is provided to the Council and the public with this staff report. Communications with a councilmember have prompted staff to provide additional information related to HSPB and Planning Commission consideration of this matter, and regarding the Las Palmas Business Historic District Conceptual Design Guidelines. HSPB/Planning Commission Actions The Historic Site Preservation Board (HSPB) reviewed the project on January 13, 2015, and voted to approve a Certificate of Approval for project by a vote of 6 to 1, subject to the following conditions: 1. The overall project height should be reduced to approximately 34 feet (a reduction of approximately four feet from the original submittal). 2. The elevation along Indian Canyon Drive should be reduced to two stories and twenty (20) feet closest to the street, and allowed to step back to higher elevations further within the site; 04 City Council Staff Report July 5, 2017 - Page 5 750 Lofts Project, Compliance with Writ 3. No additional rooftop structures should be permitted other than those illustrated in the submitted plans (no umbrellas, etc.); and 4. The parking study should be reviewed by the City Engineer for adequacy of off-street parking such that the project no adversely impact the historic district. The applicant filed an appeal of the HSPB action, requesting that conditions #1 and #2 be removed. The City Council heard the appeal on February 4, 2015, and voted to uphold the appeal and remove conditions #1, #2, and #3. Consequently, only Condition #4 was preserved (see condition #PLN 15 in the final conditions of approval). The Planning Commission reviewed the project over the course of several meetings, and took action on the project on August 12, 2015. At that meeting, the Planning Commission voted to recommend approval of the project to the City Council by a vote of 6 to 0, subject to the conditions of approval proposed by staff. The commission recommended the following added condition: "The applicant to work with Public Works & Engineering Department to designate an on-street parking space adjacent to the site for limited-term loading and unloading." The condition was incorporated as condition #PLN 26; no other conditions of approval were added by the Planning Commission. Las Palmas Business Historic District Conceptual Design Guidelines Planning staff provided an analysis to the HSPB of the project relative to the Conceptual Design Guidelines as part of the staff report that was reviewed on January 13, 2015. The analysis is summarized below: 1. Maintain the height of other structures in the surrounding area. The height of the building is harmonious with the adjacent Howard Lapham- designed building at 666 N. Palm Canyon (Rackstrom-Reid Building), but is in contrast with the small one-story buildings such as those at 700 N. Palm Canyon and 756 N. Palm Canyon. 2. Maintain the general alignment of facades at the sidewalk edge. The proposed project maintains the fagade alignment. 3. Maintain the pattern of fagade proportions. The proposed project is large in volume, but its fagade has been broken down into multiple parts, thereby giving it a compatible relationship to the scale of existing structures in the vicinity. �5 City Council Staff Report July 5, 2017 - Page 6 750 Lofts Project, Compliance with Writ 4. Maintain the relationship between upper and lower floors of other structures in the surrounding area. The proposed project conforms to this standard by having commercial uses (restaurant, cocktail lounge) on the ground floor and the hotel rooms on the upper level. 5. Maintain the spacing pattern of upper story windows. The fagade is broken down into a series of vertical panels, screens and window surfaces, and has a sympathetic relationship to the buildings adjacent to it. 6. Use building materials that are similar in texture and finish to those found historically. The proposed project utilizes stucco, glass, and concrete as the primary materials, which are similar to materials used historically. 7. Use components of the fagade that are similar in size and shape to those found historically. The components of the fagade of the proposed structure are similar in size and shape to the adjacent Rackstrom-Reid Building and Kocher-Sampson Building, but contrast with Spanish Colonial buildings in the district. 8. Maintain the pattern of roof types. The proposed flat roof is similar to other flat-roofed buildings in the district. 9. Maintain the existing site design pattern. The proposed project is consistent with this guideline in that it maintains the building edge along Palm Canyon and introduces retail/restaurant uses on Indian Canyon that will help encourage pedestrian activity. 10. Although contemporary designs are encouraged, replicas of historic designs may be considered if they meet these conditions. The design is contemporary, and is therefore in conformance to the guideline. ALTERNATIVES: Stated above. 06 City Council Staff Report July 5, 2017 - Page 7 750 Lofts Project, Compliance with Writ ENVIRONMENTAL ASSESSMENT: Unless the Council revisits it, the environmental assessment prepared and approved in conjunction with the 750 Lofts Project is the controlling environmental assessment for purposes of this matter. The only defect in this assessment, per the Court's ruling issued in relation to the Writ, was analysis of parking related to the event area. If it wishes to do so regardless of the Court's conclusions, the Council can rescind the City's entire prior approval of that assessment. FISCAL IMPACT: No significant change to City revenue or expenditures is expected as a result of adopting the proposed Resolution. Edward Z. Kotkin, Marcus L. Fuller, NPA, P.E., P.L.S., City Attorney Assistant City Manager David H. Ready, Esq., Ph. FI n Fagg, AICP City Manager Director of Planning Services ATTACHMENTS: A. Resolution Complying with Writ B. Ordinance Affirming PDD Approval C. Resolution Affirming MAJ and CUP Approval D. Transcript of Hearing RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, COMPLYING WITH WRIT OF MANDATE, REQUIRING ELIMINATION OF THE EVENT AREA FROM PLANNED DEVELOPMENT DISTRICT PD-374, THE 750 LOFTS" PROJECT LOCATED AT 750 N. PALM CANYON DRIVE, CONFIRMING CONFORMITY WITH THE CITY'S MUNICIPAL CODE WITH REGARD TO PARKING, AND OTHERWISE AFFIRMING APPROVAL OF PD-374 THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, FINDS: A. In 2014, 750 Lofts, LLC a California limited liability company applied for approval of Planned Development District PD-374, General Plan Amendment, Conditional Use Permit and Major Architectural Application (the "Entitlements") in order to construct a 39 room hotel on 1.13 acres of property located at 750 N. Palm Canyon Drive, Palm Springs (the "Property"). B. The Property, while itself not a historic structure, is located within the Las Palmas Business Historic District. On October 12, 2014, the Historic Site Preservation Board ("HSPB") reviewed the General Plan Amendment ("GPA"), Conditional Use Permit ("CUP"), and Planned Development District ("PDD") for the original project application which, at that time, included a hotel with forty-six (46) rooms, sixty-two (62) parking spaces and a maximum height of fifty feet (50'), with lower heights at the street frontages. The HSPB approved the Project subject to certain conditions, one of which required that the Major Architectural Application ("MAX) come back to the HSPB for review. C. The Project, including the MAJ, was brought back to the HSPB on January 13, 2015, and at that time, the HSPB approved the Project subject to conditions requiring reductions in building height, limitations on rooftop structures, and a requirement that the parking study be reviewed by the City Engineer for adequacy of off street parking such that the Project would not adversely impact the historic district. D. The Project was revised in an effort to respond to the HSPB conditions, resulting in a hotel of only thirty-nine (39) rooms, thereby reducing room count by seven (7), and reducing some building heights E. An initial study was prepared for the Project pursuant to the California Environmental Quality Act ("CEQA"), and was circulated for a twenty (20) day period from February 6, 2015 to February 25, 2015. With the revisions to the Project prompted by the HSPB review, the initial study was revised and re-circulated for public comment from June 29, 2015 to July 20, 2015. (}R -1- F. On June 24, 2015, July 22, 2015, and August 12, 2015 the Planning Commission conducted a public hearing and reviewed the project. At its August 12, 2015 meeting, the Planning Commission recommended that the Project be approved subject to the conditions of approval. G. On September 16, 2015, the City Council held a public hearing and, after taking public testimony, approved the Project, including the GPA, PDD, CUPs, MAJ and Mitigated Negative Declaration and deleted HSPB conditions 1, 2 and 3. H. On October 23, 2015, Advocates for Better Community Development filed a Petition for Writ of Mandate (the "Petition"), seeking to compel the City to rescind its approval of the Entitlements. I. In adjudicating the Petition, the Court heard three (3) basic arguments: (a) that the City Council abused its discretion when it deleted the HSPB conditions without sending the Project back to the HSPB, (b) that the City violated its municipal code for approving the Project without considering the parking requirements for the "event space", and (c) that the approval of the Project was "spot zoning." J. The Court denied the Petition as to the claim that the City Council abused its discretion in deleting the HSPB conditions and it found nothing in the municipal code that requires the Council to refer the revised Project back to the HSPB. K. The Court also denied the Petition as to the claim of spot zoning, finding that no spot zoning occurred as no "island" was created, and the Court further found that even if it had been spot zoning, such zoning was in the public interest as it provided tourist accommodations and revitalized Indian Avenue. L. The Court, however, granted the Petition as to the issue of parking, and on April 6, 2017, issued a "Peremptory Writ of Mandate" (the "Writ") to the City. The Writ requires neither more nor less than that the City set aside its approvals of the Entitlements until such time as the City adequately addresses all parking issues, including event space parking, as required by the City's Municipal Code. M. On May 3, 2017, the Council took affirmative action rescinding Ordinance No. 1886 (the past approval of the PDD), Resolution No. 23899 (the past approval of the MAJ), and directing staff to schedule a public hearing in this matter. N. Staff first issued and gave proper notice of this public hearing to take place on May 17, 2017, then re-noticed this public hearing for June 7, 2017, and then continued, after being opened and properly adjourned until June 21, 2017. O. At the public hearing in this matter, the City Council considered a report and a supplemental report from its staff, inclusive of the entire City Council staff report considered on September 16, 2015 inclusive of all attachments, and a true and correct copy of the Writ; in addition, the Council received any and all written or oral testimony offered, and deliberated upon its intended action with respect to the Entitlements. Q9 -2- P. The public hearing concluded on June 21, 2017, and the City Council instructed staff to present this case to them for a final decision upon the precise manner in which it would comply with the Court's Writ on July 5, 2017. Q. The City Council has carefully, and independently reviewed and considered all of the evidence presented in connection with this public hearing, including but not limited to the staff report and all written and oral testimony presented and has reviewed and considered the Initial Study and Mitigated Negative Declaration as approved pursuant to Resolution No. 23898. R. Given the scope and nature of the Court's Writ, the Council has determined that this matter does not require further consideration by the HSPB or the Planning Commission, and that the Council can and should take independent action at this juncture consistent with restoration and affirmation of Ordinance No. 1886 (the Council's past approval of the PDD), Resolution No. 23899 (the Council's past approval of the MAJ and the CUP) in a manner consistent with the Writ. S. Concurrent with the Council's action in considering and approving this Resolution, the Council has introduced an Ordinance that specifically affirms the original approval of the PDD in a manner consistent with the Writ, and adopted a second Resolution that specifically affirms the Major Architectural Application and Conditional Use Permits in a manner consistent with the Writ. THE CITY COUNCIL HEREBY FURTHER FINDS AND RESOLVES: Section 1: The true and correct recitals above are incorporated by this reference herein as the factual basis for this Resolution. Section 2: The list of permitted uses and development standards reflected in the Project's conditions of approval did not contain the "event space." Regardless of the terms and conditions of approval, and independent of whether the parking study in support of the Project referenced or included the "event space," that space was not removed from the Project plans prior to Council approval of the Project, and ambiguity existed in the administrative record as to whether the Project included the event space. Section 3: With the elimination of the event area, the Project consists of a thirty-nine (39) room hotel, a one hundred thirteen (113) seat restaurant on Palm Canyon Drive, a thirty-nine (39) seat lounge on Indian Canyon, and a twenty (20) seat roof top lounge Section 4: Palm Springs Municipal Code ("PSMC") Section 93.060.00(16) requires one (1) parking space for each hotel room in any hotel having less than fifty (50) rooms. Section 5: PSMC Section 93.060.00(30) one (1) parking space for every three (3) seats in restaurants and lounges. Section 6: Given the PSMC requirements, the parking requirement for the Project includes thirty-nine (39) spaces for the hotel and fifty-eight (58) spaces for the restaurant and lounges, for a total parking requirement ninety-seven (97) spaces. 10 -3- Section 7: The Project plans as approved will provide for a total of one hundred eight (108) spaces, thirty-four (34) of which will be on-site valet spaces. The Project is conditioned to provide valet service at all times. Section 8: Condition of Approval number ADM 15 provides that any deviation from the number of restaurant or lounge seats shall require prior approval by the Director of Planning by means of an amendment to the use permit associated with each use, thereby assuring that the City retains control to enforce Project compliance with the PSMC as to parking. Section 9: An independent traffic engineer reviewed the Project's parking requirements exclusive of the event area, and found that based on the PSMC and the widely accepted and used Urban Land Institute shared parking methodology, the forecast shared parking demand for the Project can be accommodated by the one hundred eight (108) off-street parking spaces in the Project. Section 10: Since the issuance of the Writ and pending the City of Palm Springs' adoption of this Resolution, all Project approvals have been and remained effectively "set aside." As such, the City has neither processed nor issued any Project permits. To ensure certainty on the part of all parties regarding the status of all Project approvals and resolutions pending adoption of this Resolution, the City Council formally rescinded approval of the PDD and the MAJ on May 3, 2017. Section 11. The environmental assessment prepared and approved pursuant to and in accord with the California Environmental Quality Act in conjunction with the Project is the controlling environmental assessment for purposes of this Resolution. The only defect in this assessment, per the Court's ruling issued in relation to the Writ, was the City's parking analysis related to the "event space." Although the Writ set aside the City's approval of that assessment, the analysis contained therein, complemented by this Resolution's clarification that the event area/space is no longer a part of the Project, supports the recommended action. Section 12: If any section, subsection, clause or phrase of this Resolution is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Resolution. The City Council of the City of Palm Springs, hereby declares that it would have passed this Resolution and each section of subsection, sentence, clause and phrase thereof, irrespective of the clauses or phrases being declared invalid. Section 13: This Resolution shall be effective immediately upon its adoption, and the City Attorney and City Clerk are hereby directed to take all necessary action to ensure the City's timely compliance with the Writ, including without limitation the filing of a Return to the Writ, explaining the City's action(s) taken to comply with the terms of the Writ. � i -4- NOW THEREFORE, BE IT FURTHER RESOLVED that, based upon the foregoing, the City Council hereby orders that (i) an additional condition shall be placed on the Project which expressly requires that the "event area," also referenced in the Writ and from time to time in relation to the Project as "event space," is eliminated from PDD-374, and that (H) subject to that change, the approval of PDD-374 and all related approvals and resolutions, including without limitation Ordinance No. 1886 and Resolution No. 23899, adopted arising from and related to the Project are hereby reinstated and affirmed in their entirety. ADOPTED this 5th day of July, 2017. David H. Ready, City Manager ATTEST: Kathleen Hart, Interim City Clerk CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, Kathleen Hart, Interim City Clerk of the City of Palm Springs, hereby certify that Resolution No. is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on by the following vote: AYES: NOES: ABSENT: ABSTAIN: Kathleen Hart, Interim City Clerk City of Palm Springs, California -5- ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AFFIRMING APPROVAL OF PLANNED DEVELOPMENT DISTRICT 374 (CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ). City Attorney Summary This Ordinance approves a Planned Development District in lieu of a change in zone for a 1.13 acre parcel located at 750 North Palm Canyon Drive. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS FINDS AND DETERMINES AS FOLLOWS: A. In 2014, 750 Lofts, LLC a California limited liability company applied for approval of Planned Development District PD-374, General Plan Amendment, Conditional Use Permit and Major Architectural Application (alternatively the "Entitlements," and/or the "Project") in order to construct a 39 room hotel on 1.13 acres of property located at 750 N. Palm Canyon Drive, Palm Springs (the "Property"). B. The Property, while itself not a historic structure, is located within the Las Palmas Business Historic District. On October 12, 2014, the Historic Site Preservation Board ("HSPB") reviewed the General Plan Amendment ("GPA"), Conditional Use Permit ("CUP"), and Planned Development District ("PDD") for the original project application which, at that time, included a hotel with forty-six (46) rooms, sixty-two (62) parking spaces and a maximum height of fifty feet (50'), with lower heights at the street frontages. The HSPB approved the original project subject to certain conditions, one of which required that the Major Architectural Application ("MAX) come back to the HSPB for review. C. The Project, including the MAJ, was brought back to the HSPB on January 13, 2015, and at that time, the HSPB approved the Project subject to conditions requiring reductions in building height, limitations on rooftop structures, and a requirement that the parking study be reviewed by the City Engineer for adequacy of off street parking such that the Project would not adversely impact the historic district. D. The Project was revised in an effort to respond to the HSPB conditions, resulting in a hotel of only thirty-nine (39) rooms, thereby reducing room count by seven (7), and reducing some building heights. E. An initial study was prepared for the Project pursuant to the California Environmental Quality Act ("CEQA"), and was circulated for a twenty (20) day period from February 6, 2015 to February 25, 2015. With the revisions to the Project prompted 13 Ordinance No. Page 2 by the HSPB review, the initial study was revised and re-circulated for public comment from June 29, 2015 to July 20, 2015. F. On June 24, 2015, July 22, 2015, and August 12, 2015 the Planning Commission conducted a public hearing and reviewed the project. At its August 12, 2015 meeting, the Planning Commission recommended that the Project be approved subject to the conditions of approval. G. On September 16, 2015, the City Council held a public hearing and, after taking public testimony, approved the Project, including the GPA, PDD, CUPs, MAJ and Mitigated Negative Declaration and deleted HSPB conditions 1, 2 and 3. H. On October 23, 2015, Advocates for Better Community Development filed a Petition for Writ of Mandate (the "Petition"), seeking to compel the City to rescind its approval of the Entitlements. I. In adjudicating the Petition, the Court heard three (3) basic arguments: (a) that the City Council abused its discretion when it deleted the HSPB conditions without sending the Project back to the HSPB, (b) that the City violated its municipal code for approving the Project without considering the parking requirements for the "event space", and (c) that the approval of the Project was "spot zoning." J. The Court denied the Petition as to the claim that the City Council abused its discretion in deleting the HSPB conditions and it found nothing in the municipal code that requires the Council to refer the revised Project back to the HSPB. K. The Court also denied the Petition as to the claim of spot zoning, finding that no spot zoning occurred as no "island" was created, and the Court further found that even if it had been spot zoning, such zoning was in the public interest as it provided tourist accommodations and revitalized Indian Avenue. L. The Court, however, granted the Petition as to the issue of parking, and on April 6, 2017, issued a "Peremptory Writ of Mandate" (the "Writ") to the City. The Writ requires neither more nor less than that the City set aside its approvals of the Entitlements until such time as the City adequately addresses all parking issues, including event space parking, as required by the City's Municipal Code. M. On May 3, 2017, the Council took affirmative preliminary action, making no findings, but rescinding Ordinance No. 1886 (the past approval of the PDD), Resolution No. 23899 (the past approval of the MAJ and the CUP) by minute action, and directing staff to schedule a public hearing in this matter. N. Staff first issued and gave proper notice of a public hearing to take place on May 17, 2017, then re-noticed this public hearing for June 7, 2017, and then continued, after being opened and properly adjourned until June 21, 2017. t4 Ordinance No. Page 3 0. At the public hearing in this matter, the City Council considered a report and a supplemental report from its staff, inclusive of the entire City Council staff report considered on September 16, 2015 inclusive of all attachments, and a true and correct copy of the Writ; in addition, the Council received any and all written or oral testimony offered, and deliberated upon its intended action with respect to the Entitlements. P. The public hearing concluded on June 21, 2017, and the City Council instructed staff to present this case to them for a final decision upon the precise manner in which it would comply with the Court's Writ on July 5, 2017. Q. The City Council has carefully, and independently reviewed and considered all of the evidence presented in connection with this public hearing, including but not limited to the staff report and all written and oral testimony presented and has reviewed and considered the Initial Study and Mitigated Negative Declaration as approved pursuant to Resolution No. 23898. R. Given the scope and nature of the Court's Writ, the Council has determined that this matter does not require further consideration by the HSPB or the Planning Commission, and that the Council can and should take independent action at this juncture consistent with restoration and affirmation of Ordinance No. 1886 (the Council's past approval of the PDD), Resolution No. 23899 (the Council's past approval of the MAJ and the CUP) in a manner consistent with the Writ. S. The Council hereby re-states the following findings, originally made on September 16, 2015, that pursuant to Palm Springs Zoning Code Sections 94.03.00 (Planned Development District) and 94.07.00 (Change of Zone), the City Council has considered and determined that the following conditions are met and justify approval of a planned development district in lieu of a change of zone: 1. The proposed change of zone is in conformity with the general plan map and report. The Planned Development District application allows for uses and development standards that are consistent with the proposed CBD land use designation of the General Plan. The CBD designation allows for a mix of commercial, residential, and office uses, and allows hotel uses at a density of up to 70 units per acre if a Planned Development District is prepared and approved. 2. The subject property is suitable for the uses permitted in the proposed zone, in terms of access, size of parcel, relationship to similar or related uses, and other considerations deemed relevant by the Planning Commission and City Council. The subject property is suitable for hotel and restaurant uses; similar uses are located on adjacent properties within the Uptown area. The parcel has access from two major thoroughfares (Palm Canyon, Indian Canyon) as designated by I5 Ordinance No. Page 4 the General Plan, and is consistent with the intensity of development allowed under the proposed CBD land use designation. Further, the project site is located within the boundaries of the "R" Resort Overlay Zone. The proposed development would provide additional hotel rooms, restaurant, retail, spa, and cocktail lounge uses that are supportive of the tourist nature of the Uptown area, and which are consistent with the Resort Overlay Zone. 3. The proposed change of zone is necessary and proper at this time, and is not likely to be detrimental to the adjacent property or residents. The proposed development plan will assist in the redevelopment of the subject site, and will enhance economic development efforts in the area. Furthermore, as set forth in the Initial Study/Mitigated Negative Declaration prepared for the project, the project would not have a significant effect on the environment. Therefore the project is not likely to be detrimental to the adjacent properties or residents. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS HEREBY ORDAINS: SECTION 1. The true and correct recitals above, inclusive of all definitions, are incorporated by this reference herein as the factual basis for this Ordinance. The Council adopts this Ordinance in compliance with "Peremptory Writ of Mandate" issued by the Superior Court of the State of California to the City on April 6, 2017. SECTION 2. The list of permitted uses and development standards reflected in the Project's conditions of approval did not contain the "event space." Regardless of the terms and conditions of approval, and independent of whether the parking study in support of the Project referenced or included the "event space," that space was not removed from the Project plans prior to Council approval of the Project, and ambiguity existed in the administrative record as to whether the Project included the event space. SECTION 3. With the elimination of the event area, the Project consists of a thirty-nine (39) room hotel, a one hundred thirteen (113) seat restaurant on Palm Canyon Drive, a thirty-nine (39) seat lounge on Indian Canyon, and a twenty (20) seat roof top lounge. SECTION 4. Palm Springs Municipal Code ("PSMC") Section 93.060.00(16) requires one (1) parking space for each hotel room in any hotel having less than fifty (50) rooms. SECTION 5. PSMC Section 93.060.00(30) one (1) parking space for every three (3) seats in restaurants and lounges. SECTION 6. Given the PSMC requirements, the parking requirement for the Project includes thirty-nine (39) spaces for the hotel and fifty-eight (58) spaces for the restaurant and lounges, for a total parking requirement ninety-seven (97) spaces. 16 Ordinance No. Page 5 SECTION 7. The Project plans as approved will provide for a total of one hundred eight (108) spaces, thirty-four (34) of which will be on-site valet spaces. The Project is conditioned to provide valet service at all times. SECTION 8. Condition of Approval number ADM 15 provides that any deviation from the number of restaurant or lounge seats shall require prior approval by the Director of Planning by means of an amendment to the use permit associated with each use, thereby assuring that the City retains control to enforce Project compliance with the PSMC as to parking. SECTION 9. An independent traffic engineer reviewed the Project's parking requirements exclusive of the event area, and found that based on the PSMC and the widely accepted and used Urban Land Institute shared parking methodology, the forecast shared parking demand for the Project can be accommodated by the one hundred eight (108) off-street parking spaces in the Project. SECTION 10. Since the issuance of the Writ and pending the City of Palm Springs' adoption of this Ordinance, all Project approvals have been and remained effectively "set aside." As such, the City has neither processed nor issued any Project permits. To ensure certainty on the part of all parties regarding the status of all Project approvals and resolutions pending adoption of this Resolution, the City Council formally rescinded approval of Ordinance No. 1886, regarding the Council's prior approval of the PDD, and Resolution No. 23899, regarding the Council's prior approval of the MAJ and the CUPS on May 3, 2017. SECTION 11. The environmental assessment prepared and approved pursuant to and in accord with the California Environmental Quality Act in conjunction with the Project is the controlling environmental assessment for purposes of this Ordinance. Resolution 23898, which adopted the mitigated negative declaration for the GPA for this Project, was not formally rescinded on May 3, 2017. The only defect in this environmental assessment, per the Court's ruling issued in relation to the Writ, was the City's parking analysis related to the "event space." Although the Writ set aside the City's approval of that assessment, the analysis contained therein, complemented by this Ordinance's clarification that the event area/space is no longer a part of the Project, supports the recommended action. SECTION 12. Concurrent with this Ordinance, the City Council adopts a Resolution effective immediately and consistent herewith. The City Attorney and City Clerk are hereby directed to take all necessary action to ensure the City's timely compliance with the Writ, including without limitation the filing of a Return to the Writ, explaining the City's action(s) taken to comply with the terms of the Writ. SECTION 13. The City Council hereby re-approves Planned Development 17 Ordinance No. Page 6 District 374 in lieu of zone change, subject to the conditions of approval contained in Exhibit "A" to Ordinance 1866 and now again to this Ordinance, said conditions of approval being attached to and incorporated herein by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space' as a part of the approved Project. SECTION 14. Moreover and based upon the foregoing, (i) an additional condition shall be placed upon this approval of Planned Development District 374 which expressly requires that the "event area," also referenced in the Writ and from time to time in relation to the Project as the "event space," is eliminated from PDD-374, and (H) given that additional condition, the approval of PDD-374 and all related approvals and resolutions, including without limitation Ordinance No. 1886 and Resolution No. 23899, adopted arising from and related to the Project are hereby reinstated and affirmed in their entirety. SECTION 15. The City Council approves the zone map change from C-1/PDD 104 to PDD 374 for the 1.13 acre parcel at 750 North Palm Canyon Drive (APN: 505-303-018). SECTION 16. If any section, subsection, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Palm Springs, hereby declares that it would have passed this Ordinance and each section of subsection, sentence, clause and phrase thereof, irrespective of the clauses or phrases being declared invalid. SECTION 17. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same, or a summary thereof, to be published and posted pursuant to the provisions of law and this Ordinance shall take effect thirty (30) days after its adoption on second reading. PASSED, APPROVED, AND ADOPTED BY THE PALM SPRINGS CITY COUNCIL THIS 51" DAY OF JULY, 2017. ROBERT MOON, MAYOR ATTEST: is Ordinance No. Page 7 KATHLEEN D. HART, INTERIM CITY CLERK 19 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AFFIRMING APPROVAL OF A MAJOR ARCHITECTURAL APPLICATION AND CONDITIONAL USE PERMITS (CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ). THE CITY COUNCIL OF THE CITY OF PALM SPRINGS FINDS AND DETERMINES AS FOLLOWS: A. In 2014, 750 Lofts, LLC a California limited liability company applied for approval of Planned Development District PD-374, General Plan Amendment, Conditional Use Permit and Major Architectural Application (alternatively the "Entitlements," and/or the "Project") in order to construct a 39 room hotel on 1.13 acres of property located at 750 N. Palm Canyon Drive, Palm Springs (the "Property"). B. The Property, while itself not a historic structure, is located within the Las Palmas Business Historic District. On October 12, 2014, the Historic Site Preservation Board ("HSPB") reviewed the General Plan Amendment ("GPA"), Conditional Use Permit ("CUP"), and Planned Development District ("PDD") for the original project application which, at that time, included a hotel with forty-six (46) rooms, sixty-two (62) parking spaces and a maximum height of fifty feet (50'), with lower heights at the street frontages. The HSPB approved the original project subject to certain conditions, one of which required that the Major Architectural Application ("MAX) come back to the HSPB for review. C. The Project, including the MAJ, was brought back to the HSPB on January 13, 2015, and at that time, the HSPB approved the Project subject to conditions requiring reductions in building height, limitations on rooftop structures, and a requirement that the parking study be reviewed by the City Engineer for adequacy of off street parking such that the Project would not adversely impact the historic district. D. The Project was revised in an effort to respond to the HSPB conditions, resulting in a hotel of only thirty-nine (39) rooms, thereby reducing room count by seven (7), and reducing some building heights. E. An initial study was prepared for the Project pursuant to the California Environmental Quality Act ("CEQA"), and was circulated for a twenty (20) day period from February 6, 2015 to February 25, 2015. With the revisions to the Project prompted by the HSPB review, the initial study was revised and re-circulated for public comment from June 29, 2015 to July 20, 2015. 20 Resolution No. Page 2 F. On June 24, 2015, July 22, 2015, and August 12, 2015 the Planning Commission conducted a public hearing and reviewed the project. At its August 12, 2015 meeting, the Planning Commission recommended that the Project be approved subject to the conditions of approval. G. On September 16, 2015, the City Council held a public hearing and, after taking public testimony, approved the Project, including the GPA, PDD, CUP, MAJ and Mitigated Negative Declaration and deleted HSPB conditions 1, 2 and 3. H. On October 23, 2015, Advocates for Better Community Development filed a Petition for Writ of Mandate (the "Petition"), seeking to compel the City to rescind its approval of the Entitlements. I. In adjudicating the Petition, the Court heard three (3) basic arguments: (a) that the City Council abused its discretion when it deleted the HSPB conditions without sending the Project back to the HSPB, (b) that the City violated its municipal code for approving the Project without considering the parking requirements for the "event space", and (c) that the approval of the Project was "spot zoning." J. The Court denied the Petition as to the claim that the City Council abused its discretion in deleting the HSPB conditions and it found nothing in the municipal code that requires the Council to refer the revised Project back to the HSPB. K. The Court also denied the Petition as to the claim of spot zoning, finding that no spot zoning occurred as no "island" was created, and the Court further found that even if it had been spot zoning, such zoning was in the public interest as it provided tourist accommodations and revitalized Indian Avenue. L. The Court, however, granted the Petition as to the issue of parking, and on April 6, 2017, issued a "Peremptory Writ of Mandate" (the "Writ") to the City. The Writ requires neither more nor less than that the City set aside its approvals of the Entitlements until such time as the City adequately addresses all parking issues, including event space parking, as required by the City's Municipal Code. M. On May 3, 2017, the Council took affirmative preliminary action, making no findings, but rescinding Ordinance No. 1886 (the past approval of the POD), Resolution No. 23899 (the past approval of the MAJ and the CUP) by minute action, and directing staff to schedule a public hearing in this matter. N. Staff first issued and gave proper notice of a public hearing to take place on May 17, 2017, then re-noticed this public hearing for June 7, 2017, and then continued, after being opened and properly adjourned until June 21, 2017. 21 Resolution No. Page 3 O. At the public hearing in this matter, the City Council considered a report and a supplemental report from its staff, inclusive of the entire City Council staff report considered on September 16, 2015 inclusive of all attachments, and a true and correct copy of the Writ; in addition, the Council received any and all written or oral testimony offered, and deliberated upon its intended action with respect to the Entitlements. P. The public hearing concluded on June 21, 2017, and the City Council instructed staff to present this case to them for a final decision upon the precise manner in which it would comply with the Court's Writ on July 5, 2017. Q. The City Council has carefully, and independently reviewed and considered all of the evidence presented in connection with this public hearing, including but not limited to the staff report and all written and oral testimony presented and has reviewed and considered the Initial Study and Mitigated Negative Declaration as approved pursuant to Resolution No. 23898. R. Given the scope and nature of the Court's Writ, the Council has determined that this matter does not require further consideration by the HSPB or the Planning Commission, and that the Council can and should take independent action at this juncture consistent with restoration and affirmation of Ordinance No. 1886 (the Council's past approval of the PDD), Resolution No. 23899 (the Council's past approval of the MAJ and the CUP) in a manner consistent with the Writ. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The true and correct recitals above, inclusive of all definitions, are incorporated by this reference herein as the factual basis for this Ordinance. The Council adopts this Ordinance in compliance with "Peremptory Writ of Mandate" issued by the Superior Court of the State of California to the City on April 6, 2017. SECTION 2. The list of permitted uses and development standards reflected in the Project's conditions of approval did not contain the "event space." Regardless of the terms and conditions of approval, and independent of whether the parking study in support of the Project referenced or included the "event space," that space was not removed from the Project plans prior to Council approval of the Project, and ambiguity existed in the administrative record as to whether the Project included the event space. SECTION 3. With the elimination of the event area, the Project consists of a thirty-nine (39) room hotel, a one hundred thirteen (113) seat restaurant on Palm Canyon Drive, a thirty-nine (39) seat lounge on Indian Canyon, and a twenty (20) seat roof top lounge. SECTION 4. Palm Springs Municipal Code ("PSMC") Section 93.060.00(16) requires one (1) parking space for each hotel room in any hotel having less than fifty (50) rooms. 22 Resolution No. Page 4 SECTION 5. PSMC Section 93.060.00(30) one (1) parking space for every three (3) seats in restaurants and lounges. SECTION 6. Given the PSMC requirements, the parking requirement for the Project includes thirty-nine (39) spaces for the hotel and fifty-eight (58) spaces for the restaurant and lounges, for a total parking requirement ninety-seven (97) spaces. SECTION 7. The Project plans as approved will provide for a total of one hundred eight (108) spaces, thirty-four (34) of which will be on-site valet spaces. The Project is conditioned to provide valet service at all times. SECTION 8. Condition of Approval number ADM 15 provides that any deviation from the number of restaurant or lounge seats shall require prior approval by the Director of Planning by means of an amendment to the use permit associated with each use, thereby assuring that the City retains control to enforce Project compliance with the PSMC as to parking. SECTION 9. An independent traffic engineer reviewed the Project's parking requirements exclusive of the event area, and found that based on the PSMC and the widely accepted and used Urban Land Institute shared parking methodology, the forecast shared parking demand for the Project can be accommodated by the one hundred eight (108) off-street parking spaces in the Project. SECTION 10. Since the issuance of the Writ and pending the City of Palm Springs' adoption of this Ordinance, all Project approvals have been and remained effectively "set aside." As such, the City has neither processed nor issued any Project permits. To ensure certainty on the part of all parties regarding the status of all Project approvals and resolutions pending adoption of this Resolution, the City Council formally rescinded approval of Ordinance No. 1886, regarding the Council's prior approval of the PDD, and Resolution No. 23899, regarding the Council's prior approval of the MAJ and the CUPS on May 3, 2017. SECTION 11. The environmental assessment prepared and approved pursuant to and in accord with the California Environmental Quality Act in conjunction with the Project is the controlling environmental assessment for purposes of this Ordinance. Resolution 23898, which adopted the mitigated negative declaration for the GPA for this Project, was not formally rescinded on May 3, 2017. The only defect in this environmental assessment, per the Court's ruling issued in relation to the Writ, was the City's parking analysis related to the "event space." Although the Writ set aside the City's approval of that assessment, the analysis contained therein, complemented by this Ordinance's clarification that the event area/space is no longer a part of the Project, supports the recommended action. 23 Resolution No. Page 5 SECTION 12. This Resolution shall be effective immediately upon its adoption. The City Attorney and City Clerk are hereby directed to take all necessary action to ensure the City's timely compliance with the Writ, including without limitation the filing of a Return to the Writ, explaining the City's action(s) taken to comply with the terms of the Writ. SECTION 13. If any section, subsection, clause or phrase of this Resolution is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Resolution. The City Council of the City of Palm Springs, hereby declares that it would have passed this Resolution and each section of subsection, sentence, clause and phrase thereof, irrespective of the clauses or phrases being declared invalid. SECTION 14. The City Council hereby re-approves a Conditional Use Permit for the cocktail lounge use, the spa use, and for hotels with kitchen facilities in more than 10% of the rooms, and consistent with the requirements of Section 94.02.00 of the Palm Springs Zoning Code (PSZC), re-states and affirms the factual findings set forth in Section 1 of Resolution 23899, originally approved on September 16, 2015, attached hereto as Exhibit "A," and incorporated by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space" as a part of the approved Project. SECTION 15. The City Council hereby re-approves a Conditional Use Permit for a high-rise building, and consistent with the requirements of Section 94.02.00 of the PSZC, re-states and affirms the factual findings set forth in Section 2 of Resolution 23899, originally approved on September 16, 2015, attached hereto as Exhibit "A," and incorporated by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space" as a part of the approved Project. SECTION 16. The City Council hereby notes again, as it did in Resolution 23899, that following review by the Historic Site Preservation Board (HSPB), on June 15, 2015, the Project applicant submitted revised plans that reduce the building's overall height and massing. The Council further notes that as compared to the proposal reviewed by the HSPB, the revised plans reduced the height of the building on the Palm Canyon frontage from 32'-0" to 31'-0". Further, the Council notes that the height of the building at the Indian Canyon frontage has been reduced from a range of 32'-0" to 35'-0", and now varies between 29'-3" to 34'-0" in height. Resolution No. Page 6 SECTION 17. The City Council specifically rejects, removes, and strikes from the approvals of the Entitlements the first two (2) full sentences of the second paragraph of Section 3 of Resolution 23899 which reference the "event space" removed from the Project pursuant to and consistent with this Resolution. SECTION 18. The City Council hereby notes again, as it did in Resolution 23899, that the pool area has been moved inward, and is now 30' from the building's edge on Indian Canyon Drive. Further, the third story, which was proposed for hotel rooms in the applicant's prior submittal, has been removed and will now be utilized as a mezzanine balcony. SECTION 19. The City Council finds again, as it did in Resolution 23899, that the HSPB concerns relating to building height and massing were adequately addressed by the June 15, 2015 plan submittal. Additionally, the City Council finds again that the proposed development, has been sensitively designed within the context of the Las Palmas Business Historic District, and is in general conformance within the Design Guidelines established for the Las Palmas Business Historic District. As it did in approving Resolution 23899, the City Council again deletes Conditions No. 1, No. 2, and No. 3 of the Certificate of Approval recommended by the HSPB at its January 13, 2015 meeting, which conditions imposed a maximum overall building height of 34 feet, a maximum building height of 20 feet as measured at the closest setback to the Indian Canyon Drive frontage, and a limitation on any additional shade structures on the 4th floor roof deck. SECTION 20. The City Council hereby re-approves the Major Architectural Application and, consistent with the requirements of Section 94.04.00(D) of the PSZC, re-states and affirms the factual findings set forth in Section 4 of Resolution 23899, originally approved on September 16, 2015, attached hereto as Exhibit "A," and incorporated by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space" as a part of the approved Project. SECTION 21. The City Council of the City of Palm Springs hereby re-approves Case 5.1350 PDD 374/GPA/CUP/3.3795 MAJ, subject to conditions of approval outlined in Exhibit "A" except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space" as a part of the approved Project. 25 Resolution No. Page 7 SECTION 22. Moreover and based upon the foregoing, (i) an additional condition shall be placed upon the Conditional Use Permits and the Major Architectural Application which expressly requires that the "event area," also referenced in the Writ and from time to time in relation to the Project as the "event space," is eliminated from Case 5.1350 PDD 374/GPA/CUP/3.3795 MAJ, and that (H) subject to that change, the approval of Case 5.1350 PDD 374/GPA/CUP/3.3795 MAJ and all related approvals and resolutions, including without limitation Ordinance No. 1886 and Resolution No. 23899, adopted arising from and related to the Project are hereby reinstated and affirmed in their entirety. ADOPTED this 5tn day of July, 2017. David H. Ready, City Manager ATTEST: Kathleen Hart, Interim City Clerk CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, Kathleen Hart, Interim City Clerk of the City of Palm Springs, hereby certify that Resolution No. is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on by the following vote: AYES: NOES: ABSENT: ABSTAIN: Kathleen D. Hart, Interim City Clerk City of Palm Springs, California Z� 1 RIVERSIDE, CALIFORNIA; JANUARY 9, 2017 2 BEFORE THE HONORABLE SHARON J. WATERS 3 THE COURT: Come on up, Counsel . This is Advocates for 4 Better Community Development versus City of Palms Springs . 5 Appearances . 6 MS . HEMPHILL: Good morning, Your Honor. Emily 7 Hemphill representing the City and the real parties in interest. 8 MR. NAFICY: Good morning, Your Honor. Babak Naficy 9 for petitioner Advocates for Better Community Development . 10 THE COURT: So here are my tentative thoughts, and that 11 is to grant the petition on the grounds that City has not 12 complied with its own ordinance. I apologize. I didn' t write 13 the ordinance number, but the one that requires a certificate of 14 approval from the Historic Preservation Board. 15 Two, the parking is inadequate under the City' s 16 ordinances because there appears to be an event space, although 17 I 'm not sure where its located or how big it is, somewhere on 18 the site that was not addressed in the parking analysis, plus 19 there does not appear to be provision -- adequate provision for 20 onsite employee parking. 21 But to deny the petition to the extent petitioners 22 contend there is an illegal spot zoning; although even on that, 23 I think I 'm going to need some more information from the City. 24 So who wants to start? 25 MS. HEMPHILL: May I, Your Honor? 26 THE COURT: Do you care? 27 MR. NAFICY: No, Your Honor. Given the tentative, I 28 would be happy to defer to counsel . KAREN L. BURKS, CSR 27 1 1 MS. HEMPHILL: Okay. First of all, Your Honor, I guess 2 I would like to talk about the whole concept of the 3 reconsideration motion and so on, which is the procedural issue 4 that the petitioner has raised. Because what the City did was 5 the HSPB had their review. The applicant did, in fact, file a 6 timely appeal . The City upheld that appeal . 7 After that, because we have had so many threats of 8 litigation from this particular petitioner and, in fact, he has 9 sued on five or six other cases, the City looked at it and 10 realized that at the point at which they had upheld the appeal 11 for HSPB conditions, they had not yet finished the CEQA process . 12 And because they felt that having made that decision 13 without finishing the CEQA process would simply trigger a piece 14 of litigation, they contacted the applicant and indicated what 15 their suggestion was was to rescind the motion, go through the 16 CEQA process so that they had full analysis in front of them, 17 including the analysis with respect to the historic preservation 18 issues, and then consider it all at the same time. That way 19 they would not have in any way put themselves in a position to 20 have -- be accused of violating CEQA in not having to look at 21 the environmental review before they made these decisions . 22 So that was the genesis of it, and it was done with the 23 applicant' s concurrence . And when it came before the council, 24 the applicant did not object . The timeframes that are required 25 that the petitioner cites to are timeframes there to protect the 26 appellant so that the appellant is assured of a timely 27 processing of his appeal. The appellant agrees to an extension 28 of that for good cause . It ' s essentially a tolling agreement, KAREN L. BURKS, CSR 282 1 and that ' s what they did -- 2 THE COURT: Is there anything -- 3 MS . HEMPHILL: -- to allow for the CEQA process to be 4 completed. T 'm sorry. 5 THE COURT: No. My apologies to you for cutting you 6 off. 7 Is there anything in the record that supports, number 8 one, the reasons that you 've just given for the repeal of the 9 initial resolution; and, number two, anything that indicates 10 that the applicant slash appellant agreed to an extension of 11 time . And if so, to what -- I mean, was it an indefinite 12 extension of time? 13 MS . HEMPHILL: No. At the point at which all of this 14 was happening, they were in the process of completing their CEQA 15 document. So they knew that the CEQA document was going out and 16 they were going to have a particular comment period. And so 17 what was agreed was that that CEQA process would be completed 18 before, and then everything would be brought up together. 19 The process -- or the rescission was done in an open 20 meeting. It was done -- if you look at the timeframes, you' ll 21 see that the CEQA process didn' t finish until -- I think it was 22 the end of June . And then the decision was in September, 23 whereas the rescission of the HSPB conditions occurred earlier 24 than that . If you look at the records, you' ll see the CEQA 25 process occurred after both the HSPB decision, the appeal, and 26 the rescission of that appeal. And then the CEQA process ends 27 later. 28 When the council went ahead and did the rescission, KAREN L. BURKS, CSR ?g 3 I there is no objection from the applicant. And that ' s because 2 the applicant recognized the need for the completion of the CEQA 3 process . 4 THE COURT: So as I recall from the record, the repeal 5 was on the consent agenda. There was no discussion of it at 6 ail. Admittedly, there was no -- nothing in the record to 7 suggest anyone tried to pull it from the consent agenda. I 8 presume there is an ability to do that . 9 MS. HEMPHILL: Yes, there is . 10 THE COURT: I didn' t see any objections so, yeah, I 11 guess we can imply that they didn' t object to the repeal . But 12 the repeal doesn' t even say what we are going to do with the 13 certificate of approval . It refers it to the Planning 14 Commission and the Architectural Advisory Committee, I think is 15 what it' s called. But it doesn' t discuss at all what we are 16 doing with the underlying certificate of approval . 17 And then later on when the project was approved, I 18 don' t even believe there was a discussion of the initial 19 conditions that the HSPB imposed. They didn't even discuss 20 that, that we are going to accept the certificate of approval, 21 but delete the conditions that -- there was just nothing after 22 that repeal . 23 MS. HEMPHILL: The resolution when they approved the 24 project did, in fact, address the HSPB conditions of approval . 25 And the resolution itself indicates that the adjustments to the 26 project -- it is Resolution 23899, which is the council approval 27 approving the project . And that addresses the issues of the 28 appeal and indicates that those conditions related to -- I KAREN L. BURKS, CSR 36 1 believe it was the height and I forget the other one . 2 But those two conditions had been, in fact, adequately 3 addressed by the revisions to the project and, therefore, the 4 council was deleting those two conditions . That is in the City 5 council ' s resolution. And I believe the number is 23899. 6 THE COURT: Counsel, do you agree with that? 7 MR. NAFICY: With what specifically? 8 THE COURT: That in the final approval of the project, 9 Resolution No. 23899, the City addressed the conditions imposed 10 by the certificate of appropriateness and determined that they 11 had been satisfied by the revisions? 12 MR. NAFICY: Well -- 13 THE COURT: Just yes or no. I know you want to argue 14 the point, but did they address it in -- 15 MR. NAFICY: They addressed it in some fashion, but not 16 in the context of an appeal . They said it was merely advisory 17 and -- 18 MS. HEMPHILL: Your Honor, I think that is -- if I 19 could read this to you. 20 THE COURT: Do you have copies of the record? 21 MS. HEMPHILL: I have a copy of the resolutions, if I 22 can take a minute. 23 THE COURT: That ' s fine . 24 MR. NAFICY: May I ask what page are we on? 25 THE COURT: It appears to be AR102 . It is Page 6 of 26 Resolution 23899 . 27 MR. NAFICY: That ' s correct, Your Honor. I 'm there . 28 THE COURT: Section 3 . Let me read it. KAREN L. BURKS, CSR 31 I Okay. I missed that . Thank you. 2 MS. HEMPHILL: Your Honor, also on this same issue, 3 it ' s pretty well settled that in order to bring an issue, 4 whether it ' s legal or factual, before the Court in circumstances 5 like this, one has to have exhausted one' s administrative 6 remedies by raising the issue during the administrative process . 7 I sat down after having received the petitioner ' s reply 8 brief and went through the transcripts of the various hearings . 9 And this issue is not raised in those hearings . So the 10 petitioner has failed to exhaust its administrative remedies on 11 this particular issue and, therefore, is not entitled to 12 adjudication of the Court on it. 13 Then in terms of -- you know, if one wants to say that 14 indeed, you know, it -- the exhaustion of remedies is not going 15 to stop it, which I believe it should. But for the sake of 16 argument, let ' s take a look and say what happens if we are 17 looking at this . 18 The council clearly has the ability to hear an appeal 19 of the HSPB conditions, which it did. And it upheld that 20 appeal . So now the petitioner is taking issue with this 21 reconsideration. Well, if the reconsideration was invalid, then 22 the appeal was upheld and the conditions are eliminated. 23 If the reconsideration was valid, then it went back to 24 the Planning Commission. It finished the CEQA process . It came 25 back to the council. The council looked at the HSPB issue and 26 decided to eliminate those two conditions that were the subject 27 of the appeal . Either way, Your Honor, the end result is the 28 same, in those two conditions are validly removed. KAREN L. BURKS, CSR 6 32 I The other issue with respect to this particular 2 issue -- this particular point is that the motion for 3 reconsideration was done back in May, May 6 of 2015 . And if the 4 petitioner had a problem with that, he had an obligation to 5 mount some sort of a challenge at that point, but he didn' t . 6 He let it go back to the Planning Commission without staying 7 anything, went through the process, didn' t object to that 8 process at the hearing when the project was approved. And it ' s 9 only now later in the litigation that he' s bringing it up. 10 So he ' s failing to exhaust his administrative remedies . 11 And if indeed he wanted to challenge the decision of the 12 reversal, that happened back in May of 2015. Generally 13 speaking, land use decisions outside of CEQA have a 90-day 14 statute of limitations . He would have had to challenged that by 15 August, and he did not do that. This action was not filed until 16 October, which is full five months after the decision for the 17 reconsideration. 18 So I don' t think his challenge to that reconsideration 19 decision at this point is appropriate because, as I say, he 20 hasn' t exhausted his administrative remedies on the issue . And 21 if he wanted to challenge it, he had to challenge to it in a 22 timely manner, not five months after the decision was made . 23 And whether you say -- if you say reconsideration was 24 not allowed, then the appeal was upheld and the two conditions 25 are gone . If you say the reconsideration was permissible, then 26 they went through the process . They did their analysis . They 27 considered it, and they addressed it in their resolution. 28 And, therefore, I think it is appropriate and the KAREN L. BURKS, CSR 7 33 I petitioner' s claim on this should fail . 2 THE COURT : And then the third issue is whether or not 3 since the plan had been revised, whether -- rather than just 4 proceeding with the original certificate and conditions which 5 they then eliminated, the City should have sent it back to the 6 Historic Preservation Board. 7 MS. HEMPHILL: Your Honor, the City is -- the way the 8 Municipal Code is set up, the City is the appellate body for the 9 HSPB. What they did was they took the project that the HSPB 10 conditioned, met the conditions as much as they could, but 11 could -- did not exacerbate the HSPB issues, but rather tried to 12 meet them, so that there was no need to send it back to the HSPB 13 because we weren' t doing anything more extreme than what HSPB 14 had already approved subject to those conditions. 15 The council then had to decide were they going to 16 impose those conditions or were they not. The fact that we made 17 an attempt to respond to those conditions shouldn' t end up being 18 a punitive issue where we ' re punished and made to go through the 19 whole process again. The council is the appellate body here, 20 and it makes no sense to have an appellate body if the appellate 21 body has to go back to the lower court and ask if that ' s okay. 22 THE COURT: Before you move on to the next issue, let 23 me hear from petitioner on this issue. 24 MR. NAFICY: Thank you, Your Honor. First of all, I 25 want to apologize, but for some reason I 'm really not feeling 26 well this morning, and I feel slightly lightheaded. So I hope 27 it ' s not going to substantially interfere with this proceeding, 28 but I want to alert the Court to that fact. KAREN L. BURKS, CSR 8 34 I And I want to start with by noting that both of the 2 arguments that counsel is raising here today, one, that the 3 original decision to approve the appeal -- to grant the appeal 4 from the Historic Site Preservation Board was delayed because of 5 some concern about CEQA process . And now this argument about 6 exhaustion of administrative argument -- administrative 7 remedies, neither one were raised in their brief. 8 And so I think it' s patently unfair for me to now have 9 to address these arguments when the time to raise them was 10 during the briefing. And I object to the raising of these 11 arguments at this late date. 12 And so let ' s take the first one first . 13 THE COURT: You know, actually let ' s not. Because I 14 still did not hear that there was anything in the record that 15 explained why the city council repealed the initial resolution. 16 I ' ve heard counsel tell me the timing sequence, which is evident 17 from the record. But that doesn' t really tell me that that was 18 the motivating factor . 19 So I don' t really care why they decided to repeal and 20 refer the matter back to the planning commission. So move on. 21 That ' s not really important . I was curious, but it ' s not really 22 important. 23 MR. NAFICY: So the related issue to that is that -- 24 Your Honor, the way that city zone ordinance sets up the 25 process -- and as Mr. Fagg, the Director of Planning, explains 26 in his staff report on the appeal, he explains that the City had 27 an obligation. It would make sense for them to decide the 28 appeal at the time they did initially to give guidance to the KAREN L. BURKS, CSR 9 35 1 other bodies within the City who are reviewing the project. 2 For example, the Planning Commission to whom this 3 project was referred by the City at the time they rescinded 4 their approval or granted of the appeal operated on the 5 assumption that the conditions imposed by the Historic Site 6 Preservation Board applied. And their whole analysis and 7 recommendation for approval and recommendation for certification 8 of the negative declaration was based on that assumption. 9 But -- so the fact that the City went back and forth on 10 this really was a disruptive of their own scheme for how proper 11 review should be made . This was not the kind of rule that 12 really had no significance in the grand scheme of things . So 13 that ' s, I think, a very important issue . And we cite to it in 14 our brief where quote Mr. Fagg as saying, "You must decide this 15 issue right now because it is affects other agencies . " 16 So -- and the way counsel describes the process 17 as really not -- like the appeal and reconsideration and all 18 these things, the City had the right to go back and forth or 19 somehow the code -- City Code allows the applicant to 20 unilaterally waive these timelines . 21 Your Honor, I 've dealt with the City, as counsel had 22 said, numerous times . And they are ordinarily very strict about 23 deadlines . They are very strict about their procedural 24 deadlines . So to suggest now that they really don' t matter 25 and -- it really stretches credulity. The idea that the council 26 without really making any attempt to note that they' re 27 postponing a decision on this issue and now in this late date to 28 say, oh, we just put it up. KAREN L. BURKS, CSR 10 36 I The truth of the matter -- I mean, the records supports 2 this, and I 'm prepared to go through and cite to it . The City' s 3 take on this issue was that the opinion of -- or the conditions 4 imposed by the Historic Site Preservation Board are mere 5 suggestions, and that the City can take the suggestion or not . 6 In some circumstances, the opinion or the 7 recommendations of a lower body are in the nature of mere 8 suggestions . But that was not the case here. This is a 9 certificate that requires an appeal . If it ' s a meer 10 recommendation, you don' t have to appeal it because the ultimate 11 action is taken by the city council . 12 Here if the applicant hadn' t appealed the conditions of 13 the Historic Site Preservation Board, the matter would have been 14 closed. Now counsel says because they appealed it one time, 15 that means that that keeps the appeal open indefinitely. We 16 don' t agree with that. We think that the City had a timeline to 17 respond to the appeal. Having failed to do so, that the 18 decision of Historic Site Preservation Board became final . And 19 the City' s position -- which incidentally, I note that the City 20 is not here, which I find troubling. Because counsel for real 21 party is taking positions on behalf of a city which I believe is 22 contradicted by the city' s both code and practice and policy. 23 So I find that a little disturbing. 24 But regardless, there was no suggestion that as a 25 matter of law they are correct in characterizing the conditions 26 imposed by Historic Site Preservation Board as merely advisory. 27 And all this argument about, well, you could have appealed, 28 somehow you could have sued when they first approved it or all KAREN L. BURKS, CSR 11 37 1 of this, these are post-hoc rationalizations. They were never 2 raised anywhere. And it ' s not even -- I think it ' s really quite 3 disingenuous, because clearly we' re not challenging the now 4 defunct decision to initially grant the appeal . What we' re 5 objecting to is the abusive process of ignoring their own -- 6 THE COURT: But even that, you' re only wanting to 7 object to part of it . If the City did not have the authority to 8 repeal the resolution when they did, that means its initial 9 resolution upholding the certificate, but without the conditions 10 is the final word. 11 But what you want to do is gloss over the fact that 12 they three months later repealed it and focus on what they did 13 afterwards, which is eventually, as pointed out, delete the same 14 conditions they initially deleted. So you want to object to the 15 fact that the City didn' t follow part of the procedure, but you 16 gloss over the fact that when they attempted to repeal it, 17 perhaps they lost and didn' t have jurisdiction to repeal their 18 initial resolution. 19 So why does that -- suddenly that resolution, which 20 arguably was invalidly repealed, suddenly that decision goes 21 away and so what we have is the original certificate with 22 conditions . I don' t know how you jump all the way back to that. 23 MR. NAFICY: Your Honor, first of all, I think I 24 appreciate the point . But, again, that ' s not a point that was 25 made in this litigation. I mean, it' s an interesting point, but 26 it was not something that counsel -- the real parties have ever 27 argued. And we ' re not contending that the City had no 28 ability -- if I have to take a position, we ' re not contending KAREN L. BURKS, CSR 12 38 1 that the City had no ability to rescind its previous grant of 2 the appeal . 3 But there is no provision in the City Code to preserve 4 the issue after that point. I mean -- and perhaps they could 5 have fashioned something. But the real problem became -- and 6 this is just a practical issue . So I think counsel is -- and I 7 don' t say this lightly. But I think counsel is not being 8 completely frank for the reason why the recission of the grant 9 of the appeal . 10 THE COURT: Again, Counsel, I don' t care . It ' s not 11 part of the record by either party. It wasn' t part of the 12 arguments . It doesn' t matter why they attempted to repeal their 13 initial resolution deleting those conditions . 14 MR. NAFICY: Your Honor, if I may, we did actually 15 address it, and we pointed out that the real reason was that 16 there was no notice of the appeal hearing. So my client had no 17 ability to get in there and challenge the appeal . So by the 18 time the issue was rescinded, we welcomed that . 19 But then as the project was going through other 20 approval -- for example, the Planning Commission. The Planning 21 Commission, as I pointed out earlier, had assumed -- I mean the 22 resolution is clear that when they describe the project, they 23 clearly state that it was subject to those conditions . 24 Therefore, we had no occasion to really object to it or address 25 it because it seemed like that ' s the project that was going 26 forward. 27 So we literally found out about the City' s change of 28 heart on this issue -- because it wasn' t even addressed in the KAREN L. BURKS, CSR 13 39 1 staff report . It was only when Mr. Fagg the night before the 2 hearing e-mailed me a copy of the draft resolution that for the 3 first time we saw the City intends to go back and address that 4 issue in this piecemeal fashion. 5 So that' s why it ' s important because we were 6 blind-sided, because we had no idea throughout the process that 7 this was the trap that they had set because we assumed that 8 those issues were addressed per the conditions of the Historic 9 Site Preservation Board. So this is not an exercise in 10 futility. When they did that, we lost the ability to martial 11 our resources and really object to that added height, which is 12 of great importance to my client because of the impact it has on 13 the historic district. 14 So that ' s why I went back and harped on the reason, 15 because -- and if counsel wants to point to where in the record 16 it says anything about CEQA. So that ' s really the problem. 17 That' s -- and we ' re not glossing over it . We welcome that 18 because there was no notice. And at that point we were 19 preparing to file a lawsuit. And that ' s why -- I think that 20 they saw the writing on the wall and went back and rescinded it 21 because they were vulnerable . 22 The staff report says that the applicant, quote, 23 "waived the notice requirement . " Of course, the notice 24 requirement is not for benefit of the applicant. It ' s for the 25 benefit of the public because the applicant is the appellant and 26 knows when the project is going to come back. 27 MS. HEMPHILL: Your Honor, first of all, this is the 28 transcript from the city council hearing. And Mr. Tyson, who is KAREN L. BURKS, CSR 14 40 I the client, did, in fact, show up and did, in fact, protest the 2 height of the building. So counsel is incorrect in saying, Oh 3 gee . We were blind-sided and didn' t have the chance to go in 4 and protest that . 5 While he was there he could have said, And by the way, 6 City, you did not have the right to rescind that approval of the 7 appeal that you did on the HSPB. He did not do that . The issue 8 as to whether or not the council had the right do the 9 reconsideration was never brought up at the hearing, and, 10 therefore, is waived as a legal issue to be brought before the 11 Court. 12 In terms of why we are bringing it up now, it was only 13 in his reply brief that Mr. Naficy first brought up the issue 14 that the council only had 90 days to do something. And so we 15 went back and looked at it and realized what was going on. And 16 you know, we believe that the hearing and the arguments are part 17 of the record in this matter, and so we are bringing it forward 18 because it ' s a matter of law. You have to exhaust your 19 administrative remedies, and they did not do that . 20 THE COURT : Why wasn' t that raised in your opposition 21 brief? 22 MS. HEMPHILL: Because I believed at this point that -- 23 well, when we originally did the opposition brief, I felt that 24 we had adequately explained that the council was going back and 25 was delaying it . It was only when he did his reply brief that 26 he brought up the issue of the 90 days which caused me to have 27 to have to go back and look in greater depth, see where we were 28 in terms of all of these specific issues being brought up. That KAREN L. BURKS, CSR 4 lf 1 specific issue of 90 days is all you had and you can' t go 2 further than that was never brought up until his reply brief 3 came in. 4 THE COURT: When the City repealed its initial ruling, 5 if you will, repealed its initial ruling -- 6 MS . HEMPHILL: Rescinded. 7 THE COURT: -- on the appeal -- or rescinded -- it 8 didn' t set a further hearing on the repeal . 9 MS. HEMPHILL: No. What it did is it rescinded it and 10 sent it to the Planning Commission for consideration in 11 conjunction with all of the other applications that the project 12 involved. 13 THE COURT: Where is the authority to send the issue 14 regarding the certificate of approval or appropriateness to the 15 Planning Commission? 16 MS . HEMPHILL: The Planning Commission is by statute 17 authorized to review projects, and it is its obligation to 18 analyze and provide that those recommendations to the City 19 Council on issues that go to the City Council . And therefore, 20 the council was relying on that and the fact that the Planning 21 Commission would be reviewing all of the applications and the 22 Planning Commission would be reviewing the CEQA documents so 23 that they would be in a position to have everything in front of 24 them at once and could offer the City Council a more complete 25 recommendation in terms of the project rather than looking at 26 just little pieces of the project without looking at the whole 27 thing. 28 THE COURT: Is it correct that when the Planning KAREN L. BURKS, CSR 16 42 1 Commission did this review after the repeal or rescission, it 2 assumed that the initial conditions of approval, if you will, 3 issued by the HSPB were part of the project. 4 MS . HEMPHILL: Your Honor, it' s difficult to know what 5 they assumed. But what they knew was that there was an appeal 6 pending on those conditions . 7 THE COURT : What does the record reflect in terms of 8 what assumptions they were making when they did their review? 9 MS. HEMPHILL: I think the record says they looked 10 simply at the project as it was and made their conditions based 11 on the project as it was, which was the revised project with the 12 slight revisions in terms of height and limitation of some of 13 the facilities . The Planning Commission, frankly, did not 14 recommend changes in the HSPB conditions . But again -- 15 THE COURT: Did they discuss it? 16 MS . HEMPHILL: I believe they did, Your Honor. 17 THE COURT: And what was the nature of that discussion? 18 MS . HEMPHILL: I would have to go back and look. I 19 don' t have that at my fingertips . I 'm sorry. 20 THE COURT : But -- and it went forward to the city 21 council with the Planning Commission' s recommendation that they 22 approve the revised project? 23 MS. HEMPHILL: Correct . 24 THE COURT: Even though they knew or should have known 25 that the revised project still did not comply with the 26 conditions set forth in the certificate of appropriateness? 27 MS. HEMPHILL: They understood what the conditions were 28 that the HSPB put before them, because do they have the entire KAREN L. BURKS, CSR 17 43 1 HSPB minutes and resolutions and so forth in their packets as 2 they go in. They knew that the council had an appeal . They 3 knew what the council had done with the appeal . So they were 4 aware of those items, yes . 5 MR. NAFICY: May I, Your Honor? 6 THE COURT: Yes . 7 MR. NAFICY: Your Honor, first on this issue of what 8 City -- what the Planning Commission assumed or didn' t assume, 9 on Page 58 of the record, which is Page 3 of 11 of Planning 10 Commission Resolution 6518, it begins the previous page, the 11 resolution discusses the mitigation measures that apply to this 12 project. And it says on Page 57 that, "mitigation measures were 13 identified and incorporated in the following impact areas : 14 Cultural resources, hazards, and hazardous materials, " et 15 cetera . 16 Then on Page 58 -- 17 THE COURT: Counsel, please read slower. 18 MR. NAFICY: I beg your pardon. 19 Then on page 58, mitigation measure V-1, it ' s "the 20 building height shall be reduced by four feet over all . " Then 21 it says "the cultural mitigation. " And V-2 says, "The elevation 22 of the building on Indian Canyon shall be limited to two stories 23 and 20 feet adjacent to the street and can step back to include 24 additional height further from the street . " 25 So no additional rooftop structure is permitted beyond 26 those illustrated in the approved plans . So while the project 27 as such remains as the applicant approved, the approval by the 28 Planning Commission included those conditions imposed by the KAREN L. BURKS, CSR 18 44 1 Historic Site Preservation Board which they referred to here as 2 mitigation measures. 3 I actually wrote the City, Mr. Fagg, and asked him now 4 that the issue of those recommendations, those conditions have 5 been resolved, why don' t you change the description of the 6 project to reflect those conditions . And -- I beg your pardon. 7 I don' t know where it is in the record. I 'd be happy to do 8 supplemental briefing. 9 Mr. Fagg wrote me back, to his credit, and said, The 10 reason we are not doing that is because we don' t want to confuse 11 the project description with the mitigation measures, because -- 12 he basically argued that if we just now change it, it would 13 not -- the record would not reflect the fact that the changes 14 were mitigation measures and did not include original 15 description of the project. 16 So, in fact, the Planning Commission -- the project 17 Planning Commission approved and recommended for approval 18 included those mitigation measures . If you look on Page 57, 19 again, the same resolution, after item I, it says that, "On 20 May 6, the city council voted repeal the resolution. " And then 21 it says, "On June 15, the applicant submitted their revision to 22 the plan. " 23 There is no mention of carrying the issue over, that 24 there is a pending appeal . There is no mention that this issue 25 of the height is up for grabs . They don' t even consider making 26 a recommendation one way or another on an issue that as far as 27 they are concerned is settled, as evidenced by the fact they are 28 including this mitigation measures . KAREN L. BURKS, CSR 19 45 1 THE COURT : Why did they include them as mitigation 2 measures if they were already included as conditions attached to 3 the certificate? 4 MR. NAFICY: Because the mechanism by which you can 5 require -- well, one answer is that they serve dual functions . 6 So for CEQA purposes, the mitigation measures -- there are 7 mitigation measures that would reduce the cultural impact to 8 less than significant. So if you go back to the MND, the MND 9 also assumes these mitigation measures. And it ' s on the basis 10 of these mitigation measures that it concludes that the impact 11 on the cultural resource here, the Las Palmas Business District, 12 would be less than significant. 13 But the mechanism by which the cities typically are 14 able to enforce mitigation measures is to include them as 15 conditions of approval as mitigation measures . That' s just the 16 mechanism by which these are implemented. The conditions 17 attached to a certificate of approval by the Historic Site 18 Preservation Board are arguably not enforceable after the fact 19 unless they are made conditions of approval, which then become 20 mitigation measures essentially. 21 THE COURT: So at the end of the day, how is the 22 petitioner, members of the public, harmed if whether 23 characterized as conditions attached to the certificate, which 24 you just said is nonenforceable unless it ' s a condition of 25 approval, is subsequently made a mitigation effort which then 26 becomes a condition of approval, how is the public harmed? You 27 still have the ability to litigate the propriety of the City' s 28 decision to eliminate those conditions or change them at their KAREN L. BURKS, CSR 20 46 1 final resolution. 2 MR. NAFICY: Well, Your Honor, I thought I more or less 3 exactly answered that question without really wanting to get 4 into harmless error and all that. But when -- counsel still 5 goes back -- and this is something that I left out in my 6 previous answer . The harm was not that we didn' t oppose the 7 rescission of the appeal . The harm was that we went through the 8 process after the recission. So they appealed. They granted 9 the appeal . Then they rescinded that. So the world essentially 10 believed that those conditions approved. 11 How can I claim that? Well, the MND had those as 12 conditions of approval/mitigation measures . The Planning 13 Commission resolution assumed those. And the staff reports all 14 refer to the project as subject to the conditions . So we didn' t 15 really -- that was not an active issue for us anymore. We were 16 really focusing on parking and all these other issues . 17 So it was only the very last minute that they said, 18 aha, but now we ' re going back. And, Your Honor, I ' ve been doing 19 this for a long time . It almost never happens that a city 20 council considers an issue like this without there being any 21 discussion of it in the staff report. 22 I mean staff reports are guides to what to expect. And 23 there is nothing in the staff report that says the city is now 24 considering this an appeal issue and will be addressing it . Had 25 they done that, we would have approached it differently. But 26 this was really a trap. And so I -- you know, maybe I 'm wrong. 27 Ask -- please, direct counsel to tell us where in the record did 28 the City put me as the attorney for ABCD on notice that this KAREN L. BURKS, CSR 21 47 I issue is alive. 2 THE COURT: What issue? 3 MR. NAFICY: The issue of the height of the building 4 and whether the height would be based on those conditions 5 imposed by the Historic Site Preservation Board, or the City was 6 going to just approve the applicant ' s revised project that they 7 put forth on June 15, which counsel says, well, it didn' t go 8 against those recommendations . 9 So where does it say that? Where was it explained to 10 the public that that appeal issue was alive and well and could 11 be addressed? Where is the staff report discussion of it? I 12 mean the City made a finding -- the page that counsel pointed 13 to -- that the concerns raised by the Historic Site Preservation 14 Board -- here . This is Page 102 . 15 It says, "The city council finds that the Historic Site 16 Preservation Board concerns relating to building heights and 17 massing have been adequately addressed by the June 15th, 2015 18 plan submittal. " Even the finding doesn' t say anything about an 19 appeal . It treats those as recommendations as if there was no 20 need for an appeal . 21 So how is that an adequate finding to sustain the 22 appeal? It just says those concerns were met. Where is the 23 staff analysis of how that is done? Where is the -- I mean 24 counsel makes a lot of arguments in their brief, but that' s too 25 late. Where was it in the record giving us notice that this was 26 something that we need to go and address? So that ' s the harm. 27 Because we -- you know, this was really never properly 28 addressed. KAREN L. BURKS, CSR 22 48 1 And if the city council genuinely was seeking advice on 2 this issue from the Planning Commission, where was that question 3 ever posed to the Planning Commission? We cited in our brief 4 one of the commissioner' s questioning of Mr. Fagg as to, well, 5 wait . If this is an issue -- if we' re now saying that, you 6 know -- if these conditions have never been addressed, this new 7 revised project never been addressed by the Historic Site 8 Preservation Board, why aren' t we submitting it back to them? 9 And Mr. Fagg says -- 10 THE COURT: Why shouldn' t the appropriate remedy here 11 be set a hearing on the appeal? 12 MR. NAFICY: Because, Your Honor, the time came and 13 went. Honestly, I haven' t thought a whole lot about an 14 appropriate remedy. We are not saying, oh, you know -- I 've not 15 really addressed a remedy. 16 But, you know, if they want to remand and set up a 17 hearing -- I mean, we think it would be appropriate to go back 18 to the Historic Site Preservation Board, let them -- I mean, 19 these are the folks that the City has identified as experts in 20 this very area and given them essentially permitting authority. 21 So, yeah. If the issue is let ' s send it back to the Historic 22 Site Preservation Board, perhaps that would be appropriate. But 23 I honestly haven' t really thought through what an appropriate 24 remedy would be. Again, be happy to do supplemental briefing on 25 that issue . 26 MS. HEMPHILL: Your Honor, if I may. 27 THE COURT: Sure. 28 MS. HEMPHILL: Mr. Naficy is indicating that he had no KAREN L. BURKS, CSR 23 49 1 way of knowing that the Planning Commission was going to be 2 looking at the appeal issues. And yet when the council made its 3 rescission, it specifically rescinded its decision on the appeal 4 and sent it to the Planning Commission for review. It was right 5 there in their action when they took that rescission action. So 6 Mr. Naficy' s client was well aware that that was going back to 7 the Planning Commission for review. 8 Now, the Planning Commission with respect these kinds 9 of issues is an advisory body of the city council, and the city 10 council is the final decision making power. The fact that the 11 Planning Commission put conditions of approval in and the 12 council certainly considers them, but they certainly have the 13 ability to approve the project and modify those conditions if 14 they believe that' s an appropriate thing to do. And that' s what 15 they did here . 16 And it is a process that happens all the time. 17 Planning Commissions set forth conditions of approval . When it 18 gets to council, sometimes they' re accepted completely. 19 Sometimes they are modified. So there is not any trap or any 20 kind of, you know, thing going on here where we are trying to 21 fool someone. We go through the same process we always do . 22 The recision clearly said we are sending it back to the 23 Planning Commission to consider this with all the other 24 applications that are for this project. They wanted the 25 Planning Commission' s recommendation to them total, not 26 piecemeal on this issue and then the other issues later. 27 And so, you know, the fact that the Planning Commission 28 had that in its conditions of approval is irrelevant to the KAREN L. BURKS, CSR 24 50 1 issue. The council gets to make its decision in the final 2 analysis . When the council made its decision in the final 3 analysis, it had the HSPB stuff in front of it . It had the 4 Planning Commission stuff in front of it . It also had in front 5 of it a report from a historic preservation consultant saying 6 that it believed that the changes to the project made it 7 compatible with the district . 8 This building is not itself a historic building. It' s 9 an old eyesore. Everyone agrees on that. The only reason we 10 are at the HSPB is it ' s the district that is in there. The 11 requirements for the district are is that the building height is 12 to be generally similar to what is surrounding it. The building 13 right next to it is 29 feet. Whereas our building abuts it, our 14 building is 29 feet, 3 inches . And that frontage along Indian 15 only varies, what 5 feet, I think. 16 The height part of the building is pushed back 60-some 17 feet from Indian and 30 feet back from the face of the building. 18 So you can' t even see it from Indian Canyon or from Palm Canyon. 19 So that when they looked at that -- and there is even a section 20 in the guidelines that talks about varying of heights. It says, 21 "The height of new construction should be generally similar to 22 other buildings in the surrounding area, a variety" -- 23 THE COURT: You know, it ' s hard for me to get to the 24 issue of the merits of this issue because it ' s a procedural 25 issue here . We haven' t even talked about assuming a proper 26 appeal, how is it handled at the city council level . I know 27 there is some differing opinions there. 28 I agree with petitioner that unlike the process in the KAREN L. BURKS, CSR 25 51 1 ordinance for designating a building historic, which clearly 2 indicates the HSPB submits a recommendation. When it comes to 3 the certificate of appropriateness, they make findings and 4 presumably with conditions, which I don' t even know if the 5 ordinance talks about conditions . 6 It goes to the city council who can take evidence . I 7 don' t think there is any disagreement there. And then it comes 8 up on appeal, and I presume that I would be reviewing it for a 9 substantial evidence review slash abusive discretion. We never 10 had a clear appeal hearing for the Court to even get to the 11 merits of whether there was a basis for the city council to 12 delete these conditions or not because the manner in which it 13 was handled. 14 So I don' t really think it would be appropriate for me 15 to be deciding that it either was or was not consistent with 16 guidelines or that there was an evidentiary basis for the city 17 council to eliminate those conditions . Okay. 18 MS. HEMPHILL: Uh-huh. 19 THE COURT: So let ' s move on to the parking issue . 20 MS . HEMPHILL: Your Honor, with respect to parking, 21 again, because this project has gone through a great deal of 22 evolution, the original discussion was an event area on the 23 rooftop. As things moved along, that event area, as the record 24 shows, got pushed back from Indian and pushed back from Palm 25 Canyon. 26 THE COURT: It still exists . 27 MS. HEMPHILL: It still exists . But what the rooftop 28 area consists of a swimming pool, a deck, and a bar area . KAREN L. BURKS, CSR 26 52 I THE COURT: You' re citing from what? 2 MS. HEMPHILL: From the Administrative Record, Page 3 248 . 4 THE COURT: What is 248? 5 MS . HEMPHILL: I believe it is the staff report from 6 the planning director. And the only enclosed areas on the top 7 floor now are restrooms, a storage space, and the tower for the 8 elevators . 9 THE COURT: What is the date of that report? 10 MS . HEMPHILL: That is the last report that went to 11 council . Let me see if I can put my hands on this quickly. 12 MR. NAFICY: Your Honor -- 13 MS . HEMPHILL: The one I 'm referring to here is 14 February of ' 15. 15 THE COURT: Which is not the last staff report. 16 MS . HEMPHILL: Well, essentially what they did was -- 17 THE COURT: I recall a staff report in July of 2015 18 indicating that there was a problem because the event space has 19 not been addressed and that the one way of solving it was to 20 limit use of that event space to hotel guests and not allow the 21 public to be using it which would increase the parking needs . 22 If it ' s limited to hotel guests, it wouldn' t increase the 23 parking needs and that never got resolved. 24 MS . HEMPHILL: Actually, it did get resolved in terms 25 of limitations because the seating numbers -- when they did 26 their parking calculations, they did a calculation considering 27 the 39 hotel rooms . They did a calculation for the ground floor 28 restaurant with 113 seats . They did a calculation for a 39-seat KAREN L. BURKS, CSR 6? I lounge, which is also on the ground floor, and 20-seat rooftop 2 area. 3 THE COURT : Which is not the event space . 4 MS. HEMPHILL: But it says that, "The seating numbers 5 for each area are included in the conditions of approval, and 6 any deviation from those numbers require prior approval by the 7 director of planning by means of amendment to the use permit 8 associated with each use. " 9 So essentially what ended up happening is they 10 calculated what the rooftop bar at 20 seats would take in terms 11 of parking and said if you' re going to do anything other than 12 that, you have to come in for an amendment. So they conditioned 13 the project so you can' t do events like a convention center 14 event there . You can do an event in the sense if people are at 15 the pool and they want to hang around on the deck, they can do 16 that. But it' s not something that you can bring in a lot of 17 people because you' re only allowed 20 seats on the roof. 18 MR. NAFICY: May 1, Your Honor? 19 THE COURT: Yes . 20 MR. NAFICY: Your Honor, there is a lot of citations in 21 the record to the event center, but maybe the most germane is 22 the city council Resolution 23899 which approved the project. 23 At Page 102 of the record, Page 6 of the resolution, section 3, 24 middle paragraph. This is the same page counsel cited, and it 25 says : "The fourth floor event space, which is approximately 26 4, 000 square feet, has been moved towards the center of the 27 building and is now located approximately 68 feet from Indian 28 Canyon Drive property line. " KAREN L. BURKS, CSR 28 54 I So -- and again, I don' t want to through a litany of 2 cites . I did blow up a couple of pages of the Administrative 3 Record. And showed it to counsel . With the Court ' s permission, 4 I would like to show you. 5 THE COURT : Okay. 6 MS. HEMPHILL: Your Honor, whatever you call it, you 7 can only have 20 seats in it under the conditions of approval . 8 And that ' s the basis upon which the parking discussion -- or the 9 parking analysis was done. 10 THE COURT: What is this first blowup I 'm looking at? 11 MR. NAFICY: On the lower right-hand side, there is a 12 date on it. And those were renderings that were attached to -- 13 that were made available to the public. They were added to or 14 supplemental to the staff reports . 15 THE COURT: Okay. It ' s dated June 12, 2015 . And it is 16 showing hotel event space . This is Administrative Record, 17 Page 2112 . The second one is Administrative Record, Page 1846. 18 This one dated July 7, 2015, which again shows the -- in pink 19 hotel event space. 20 So what the City and real party is saying now is that 21 it doesn' t matter that there is an event space . If they tried 22 to put more than 20 seats up there, they have to get permission. 23 MS. HEMPHILL: Yes . We have to do an amendment of the 24 use permit . 25 MR. NAFICY: Your Honor, the project as described and 26 approved includes an event center, albeit a moving target, but 27 it clearly is an event center there. And -- no other -- I mean 28 they didn' t need to get a special permit or anything for this as KAREN L. BURKS, CSR 29 55 1 they did, for example, for the spa. But the project -- and 2 the -- if you look at the maps, I 'm sure -- I don' t have the 3 tentative maps, but the maps will show an event center. 4 If counsel wants to stipulate that there will not be an 5 event center on the roof so we can document it and we can get a 6 judgment on it that there will be no event center, and if they 7 want to come back -- if they want an event center, they have to 8 come back and go through the CEQA process and do a traffic study 9 and all that, we will have achieved what we are seeking to do. 10 So if they are willing to stipulate that those drawings are 11 wrong, all the project descriptions are wrong, and there will be 12 no event center, then we basically, you know, feel like, okay, 13 we got what we wanted. 14 MS. HEMPHILL: Your Honor, we are willing to stipulate 15 that the only thing on the roof is the swimming pool, the roof 16 deck, and bar area sufficient to provide for 20 seats, and that 17 the only enclosed areas are the restrooms, the storage space, 18 and stair elevator towers . That' s the project . So, yeah, we 19 are willing to say that that is the project. It ' s not a 20 convention center. 21 MR. NAFICY: Well, Your Honor, that ' s not quite what we 22 ask. One issue is that we ' re not, quite frankly, sure where the 23 event center is because it' s moved around. So to -- so that was 24 the City' s response to my comment. Well, what about parking for 25 the event center that is going to be on the roof? And they said 26 there won' t be an event center on the roof. 27 My understanding also is that the event center as 28 planned -- and I 'm now looking at Administrative Record, KAREN L. BURKS, CSR 30 56 I Page 3829. And this is an -- we cited to this in our papers, 2 and it ' s an unsigned memo dated June 12, 2015 . And it says, 3 "Regarding rules and regulation for rooftop outlet operations . " 4 I don' t know what that means . But hours of operations in the 5 middle of that will page, it says, "Event space 8 : 00 a .m. to 6 10: 00 p.m. for any functions that include open, retractable 7 walls. Event centers that are held in the interior of the space 8 with no walls, windows will be allowed to continue until 1 : 00 9 a.m. on a case-by-case basis. " 10 So although this is the only place I was able to find 11 in the record sort of dealing with this issue, it seems like the 12 event space includes retractable walls. So perhaps it ' s not 13 brick and mortar walls, but some other mechanism for adding 14 walls, to the point where they have anticipated rules for 15 operating the event center. 16 So if counsel ' s offer is to blankly say there will be 17 no event center located anywhere, then, you know, I would 18 probably be okay with that. 19 MS. HEMPHILL: Your Honor, first of all, what counsel 20 was just quoting to was an effort to address concerns about 21 noise . They did not -- the neighbors wanted to make certain 22 there would not be people partying on the roof late into the 23 night . So that' s why the indoor versus outdoor issue was 24 brought up on that . 25 The bottom line here is the conditions of approval says 26 there are 20 seats on the roof, a deck, and a swimming pool, and 27 that ' s all we want . We don' t want anything more than that. So, 28 you know, in terms of stipulating to that, I 'm happy to KAREN L. BURKS, CSR 31 57 1 stipulate to that. 2 I don' t understand what he' s talking about in terms of 3 what is an event center. You know, if he' s saying that no one 4 can congregate on the roof, well, no. I can' t say that because 5 that ' s where the pool is and that' s where the bar is . 6 THE COURT: The problem with your analysis, Counsel, is 7 you talk about the seats and yet in determining parking, it ' s 8 either based on the number of seats or based on the square 9 footage. And if there are plans to use the rooftop for events 10 other than sitting next to the bar -- 11 MS. HEMPHILL: There is not . 12 THE COURT: Well, then you should be willing to 13 stipulate that there is no event space on the rooftop. 14 MS. HEMPHILL: Then, Your Honor, we will stipulate 15 there is no event space on the rooftop, but there is a rooftop 16 bar and deck that has 20 seats . 17 THE COURT: Which is separately addressed. I don' t 18 think there is any question about that . it ' s using it beyond 19 the bar for some other type of event. And I can see a wedding 20 reception up there, especially in the nice Palm Springs weather, 21 with no walls, just open space, tables, no seating. That would 22 require additional parking. And that ' s the reason the 23 petitioner continues to raise this issue, and that' s why the 24 Court has a concern. Because there are throughout the materials 25 references of an intent to use the rooftop for events other than 26 just going up and having a drink at the bar, which, you know, 27 you' re not going to get a hundred people up there if there are 28 only seats for 20 . KAREN L. BURKS, CSR 32 58 1 There is, obviously -- or there ' s an indication that 2 there ' s space that can be made available for some event. And 3 that because if there is no seating, we are talking about 4 measuring the parking needs by square footage . we can' t get a 5 clear idea of what the square footage is which makes it even 6 more difficult to determine what the parking needs are . 7 So I 'm uncomfortable with the state of the record as it 8 relates to this parking issue because of a multitude of 9 references that there is an intent to hold events there on the 10 roof other than just come up and have a drink at the bar. 11 MS. HEMPHILL: Your Honor, if one wanted to have a 12 wedding reception and you had a small wedding of 20 people, 13 would that be able to happen up there? Yes . If you had a 14 wedding reception with 50 people, would that be able to happen 15 up there? No, because you don' t have enough seating for it and 16 you can have only have 20 seats. 17 THE COURT: Move on to the onsite employee parking 18 issue. I think you' re losing this issue. I think it' s going to 19 be appropriate to grant some sort of writ, if nothing else, to 20 require that this issue or any conditions that -- appropriate 21 conditions be imposed to prevent the use of the rooftop for any 22 sort of events, period, beyond people drinking at the bar or 23 swimming at the pool . I guess there is a pool up there . 24 MS. HEMPHILL: Yes, there is a pool . 25 THE COURT: 34 seats, or whatever, for the pool . I 26 don' t remember what the number was . 27 So what about employee parking? 28 MS. HEMPHILL: Under the city' s code, the employee KAREN L. BURKS, CSR 33 59 I parking -- the way they set it up is the code ratios include 2 both customer and employee parking so that when they do the 3 calculations based on the city code, that already allows for 4 employee parking. 5 THE COURT: Onsite? 6 MS . HEMPHILL: Uh-huh. 7 THE COURT: Okay. 8 MR. NAFICY: Your Honor, obviously we agree with the 9 Court ' s analysis on the parking issue . And I 'm not going to add 10 much more to it other than to say we ' re talking about the same 11 event space that there were these multiple e-mails from Mr . Ken 12 Lyon. 13 On the issue of employee parking, again, that issue was 14 raised by Mr. Lyon. And he -- what he said was that -- his 15 concern was that this project being sort of a luxury project, 16 that the ratio of employee staff to hotel guests is going to be 17 high, and that that is going to put pressure on the local 18 parking, especially in light of the loss of the parking for the 19 Alcazar Hotel that previously used the site. 20 This issue was not really ever properly addressed. 21 Now, technically counsel is correct that the specific 22 requirement for hotel employees is -- is in relation to these 23 resort hotels . But as I mentioned, Mr. Lyon, I think, 24 persuasively argued that because -- and because of all the 25 different pieces that fit together here, it would have been 26 appropriate to address employee parking because just the number 27 of employees that are likely to be effecting the parking in that 28 area. KAREN L. BURKS, CSR 34 60 1 THE COURT: So the standard of review is either 2 substantial evidence of an impact that they failed to address or 3 abusive discretion for failure to follow the law. Was there a 4 failure to follow the law? 5 MR. NAFICY: Your Honor, there was a failure to follow 6 the city zone code on these issues, so I think that was 7 abusive -- 8 THE COURT: You just indicated that counsel was 9 correct, that under the ordinance it was proper to include 10 employee parking along with customer parking. 11 MR. NAFICY: What I indicated was that the mandatory 12 requirement without any analysis for employee parking is for a 13 resort hotel. So if there is a resort hotel, there is no 14 discussion. But in this case, I don' t think that the City even 15 considered the issue. And I think employee parking would have 16 been appropriate under these circumstances for those reasons. 17 So basically what we are arguing following the city' s 18 zone planning staff is that this is a functional equivalent of a 19 resort hotel because of many amenities, because the number, the 20 cocktail lounge and the restaurant and the spa and the pool and 21 the cabana, which is typical of resort hotels, and then the 22 ratio. It says there are 39 hotel rooms, but these are suites 23 with mini kitchens in there. So these are not tiny, hundred 24 square foot rooms . 25 So I think the issue at least is merited consideration, 26 but I think that because this is the functional equivalent of a 27 resort hotel, there should have been employee parking. 28 MS. HEMPHILL: Your Honor, again, you know, counsel KAREN L. BURKS, CSR 35 61 1 wants to go by the letter of the law when it works in his way, 2 and he wants to go by the functional equivalent when it works 3 his way. The fact of the matter is under the City Ordinance, it 4 is not a resort hotel because it ' s only 39 rooms. 5 The analysis was done based on the city' s parking code 6 and based on the city' s parking code, I think we were twelve 7 spaces excess based on the code. That was then reviewed by RK 8 Engineering, which is parking consultant, and they concluded 9 that there was adequate parking for the project as it currently 10 exists . 11 In accordance with the HSPB requirement, this study was 12 then sent out by the City for a peer review. And that peer 13 review also supported that the study was adequate . So the idea 14 that, you know, two professional traffic and parking consultants 15 are wrong, the city code is wrong, and we ' re going to do the 16 functional equivalent of a resort hotel because the rooms are 17 big, there is no basis for that. 18 MR. NAFICY: Well, there is no basis for that other 19 than the City' s own planning staff who basically make the exact 20 same argument. And I note that none of these e-mails -- I mean 21 I don' t know what the function of us not getting a full record 22 or there really was simply no response to these e-mails . But 23 these e-mails we cited from Mr. Lyon to the planning director. 24 There are -- we don' t have responses in the record. 25 Your Honor, I think that parking issue should be 26 revisited. And whether the writ includes direction to consider 27 employee parking or not, I think that issue should be, you 28 know -- and would be appropriately considered if there is a KAREN L. BURKS, CSR 36 62 1 further proceedings on this issue. As long as there is further 2 proceedings on the parking issue, I think the public will have a 3 chance to raise these issues, hopefully, again and that the 4 issue could be resolved that way. 5 MS . HEMPHILL: Your Honor, if I may, Mr. Naficy keeps 6 going back to something that Mr. Lyon said. Mr. Lyon is a 7 junior planner at the city of Palm Springs, and he ' s making 8 recommendations to his boss . His boss then applies the code and 9 the applied code requires a parking study. His boss commissions 10 a peer review of that parking study and they all conclude that 11 the park is adequate . So there is no basis for wiping all that 12 out and going back to the junior planner' s idea. 13 THE COURT: Spot zoning. 14 MR. NAFICY: Your Honor, I understand -- the spot 15 zoning issue, in all candor, Your Honor, is a closer call . I 16 readily admit that . The problem really is that if you look at 17 the totality of this project, it really is shoehorned into this 18 1 . 1 acre space. And it has -- and so there were so many 19 exemptions granted to it for height, for setbacks . And then on 20 top of that, there was this switch, this general plan amendment, 21 which basically tripled the allowable density. 22 Now if you just consider that this -- I mean counsel 23 says, well, there is this eclectic zoning. What we are talking 24 about here is really density, because that density, the extra 25 square footage is directly related to the value of the real 26 estate, how much money you can make. 27 So if you grant one property three times the density of 28 properties around it, you' re basically discriminating against KAREN L. BURKS, CSR 37 63 I everybody else that was -- basically complied with the existing 2 zoning. If the City believes or believed that it would be 3 appropriate to add density in this part of the city, the 4 appropriate vehicle for that is a general plan amendment . But 5 if the City is not prepared to do that, piecemealing -- you 6 know, allowing an island essentially of high density to allow 7 Miss Hemphill ' s client to build this relatively big hotel with 8 all these ancillary uses, it really is, I think, is a clear 9 example of spot zoning. 10 The only thing that makes this a closer call is the 11 fact that the CBD zoning -- the Central Business District zoning 12 is not that far away. So that I think makes this a little bit 13 of a gray area because -- I mean they say it ' s a transition 14 zone . But the problem ultimately with that argument is that, 15 well, because it ' s kind of close. At first the City documents 16 referred to it as "relatively close . " Then it became "close 17 proximity. " But problem with that is that if we are going to 18 not maintain a hard edge because something is close to something 19 else, then this is going to have a cascading effect . 20 So -- and the cases that I ' ve reviewed on this issue, 21 they have just really focused on what is immediately surrounding 22 it, not whether it ' s close proximity or relatively close and all 23 that . But honestly -- and I know that this is not part of the 24 record, but this is typical of the city of Palm Springs is to 25 basically through this PDD process and now the general plan 26 amendment process create these islands and really essentially 27 favor one developer, one project over all others. And we feel 28 that this was not appropriate here . KAREN L. BURKS, CSR 38 64 1 I know it ' s a very fundamental issue, and the City' s 2 police power as far as regulating land use is -- that' s where 3 they have the most discretion. I recognize that. But there has 4 to be a limit to what they can do. And in this case, I think 5 the limit comes from the discriminatory affect that this 6 decision has on everybody else. 7 So what is going to be the de facto impact of this 8 decision is that the City has basically taken away its 9 discretion to deny other projects in this area on the basis of 10 added density. There was no argument why -- I mean, counsel has 11 talked about -- and I know what city counsel was concerned 12 about, well, this project, this area really needed maybe a 13 little uplift . And nobody says there should not be any project 14 in this spot. 15 But on the other hand, there has never been a showing 16 why there needed to be this much density, why it had to be so 17 high and include so much restaurants and all this other stuff. 18 why couldn' t it be like these other projects around it? 19 And if you think about the issues we picked up for 20 litigation, the height really is related because they just want 21 all this additional density. The parking issue is the same 22 thing. They just want to have so much density, cram so much in 23 there that there is not enough parking for it . So this is, I 24 think, the problem with this, a discriminatory effect. 25 I can understand if the Court is reluctant to maybe on 26 sort of separation of power issues, but I really don' t think 27 this is the Court substituting its judgment for the City. I 28 think this is looking objectively at what is this project, what KAREN L. BURKS, CSR 39 65 I is the zoning and underlying ground general plan land use 2 designation? What exists around it? What is the density, and 3 whether or not this creates an island? 4 So I don' t want to say that counsel concedes this 5 issue, but I mean we can agree on the facts. The facts are what 6 they are . And while it is -- it ' s not that far CBD. It ' s not 7 surrounded by CBD. So the only other issue really becomes the 8 public benefit issue . So in cases where courts have granted -- 9 there aren' t that many. But where the courts have acknowledged 10 that spot zoning was appropriate because of the public benefit, 11 there was a close connection between the zoning change or the 12 benefit bestowed or the restriction imposed and the goal of the, 13 you know, the public benefit . 14 So here the added density doesn' t add to the public 15 benefit. They could have a hotel there, like a normal-sized 16 hotel that is not too high. You know, the height is consistent, 17 that has enough parking that would revitalize that area, that 18 would add pedestrian traffic, that would look very nice, and be 19 an asset to the city. So there is no intrinsic benefit to the 20 added density. 21 If you look at the cases -- so that Foothill case we 22 cited is a really good example where they allowed senior housing 23 and the court said, Well, senior housing provides a benefit to 24 this community, and so we are willing to tolerate spot zoning 25 because that benefits the public . 26 Here does the added density really -- is that what 27 benefits the public? If there was a showing that but for the 28 added density, the project would be completely infeasible. I KAREN L. BURKS, CSR 40 66 1 wouldn' t be standing here arguing it. But -- I wouldn' t be 2 making this point because, you know, the -- it wouldn' t be as 3 strong. 4 But I think that here there has been no showing that 5 the added density is something but -- you know, there is a but 6 for to -- but for the added density. So I don' t want to dwell 7 too much on this, because I 'm not adding, frankly, much to -- if 8 anything, to what we argued. 9 I think I agree with the Court that it is a closer 10 call, but I don' t think there has been enough offer on the 11 public benefit issue, and the facts support a finding that it is 12 an island of three times the density, so it meets the criteria. 13 THE COURT: So this is where I indicated the City may 14 want to do something more today, because what you presented in 15 the request for judicial notice was very hard for the Court to 16 see. 17 MS. HEMPHILL: On the zoning map? 18 THE COURT: Yes . 19 MS. HEMPHILL: I 'm sorry. 20 THE COURT: And a blowup is something that I think 21 might assist the Court . 22 MS. HEMPHILL: Happy to do that, Your Honor. 23 THE COURT: Because I couldn' t really study the map, I 24 kind of just went on argument here . But I think the record 25 needs to be clear and a blowup that 's -- 26 MS. HEMPHILL: Of just that section? 27 THE COURT: Of the important part would make it clearer 28 for everybody. And I 'm going to ask the City to provide a KAREN L. BURKS, CSR 41 I blowup. Please make sure petitioner sees it before you submit 2 it to the Court. 3 One thing that was not real clear to me, and I ' ll ask 4 either one of you, what is around this area? What is next door? 5 What is across the street? What do we have? 6 MS. HEMPHILL: Your Honor, this is a part of the 7 downtown area. I don' t know how familiar you are with Palm 8 Springs, but Palm Canyon Drive is the drag. 9 THE COURT: I 'm familiar with the general area. 10 MS. HEMPHILL: And you have the big mall that is the 11 right at Palm Canyon and Tahquitz . And if you keep going north 12 on that street, you' ll come to this project in a couple of 13 blocks . So you have a hotel right next door, the Alcazar Hotel, 14 which is a 29-foot tall hotel . You have restaurants. You have 15 office space. You have retail . It ' s a mix of a lot of things . 16 There is another hotel across Indian from it. So .it ' s a 17 continuation of the downtown area. 18 In terms -- one of the biggest problems that the city 19 of Palm Springs has had for many, many years -- I mean, I worked 20 for them 30 years ago before becoming a lawyer and struggled 21 with this . Their main drag is Palm Canyon Drive. Everybody 22 knows Palm Canyon Drive. The other side of that -- because that 23 goes in one direction. The other side of that is Indian Canyon 24 Drive . 25 Well, if you' ve ever driven down Indian Canyon Drive, 26 you look at the back doors of all the buildings . It looks like 27 a big, wild alley, except for what used to the Spa Hotel, which 28 is now gone. So one of the things that the City was always KAREN L. BURKS, CSR 42 68 1 trying to do was instead of making it a one-street downtown, 2 they wanted it to be a two-street downtown. They have tried for 3 years to revitalize Indian Avenue. 4 This project sits on property that ' s an old bank 5 building that has been abandoned for many years and has become 6 quite an eyesore . And so the City was very pleased when 7 somebody decided to come forward to get rid of that eyesore. If 8 you look at the Administrative Record and the council ' s 9 discussions of the project, particularly council member Mills 10 who has been on the council for a very, very long time, and he 11 talks about the -- "in my mind, showing an increase in the 12 pedestrian experience and activities occurring on Indian Avenue, 13 which is something" -- 14 THE COURT: Slow down, please. 15 MS. HEMPHILL: I 'm sorry. "To increase in pedestrian 16 experience and activities occurring on Indian Avenue, which is 17 something that this council has been working on for years and 18 years, to make Indian Avenue not just as a former planning 19 commissioner called it, ' the way out of town. '" 20 And the second council member echoed the same thing, 21 about "the Bank of America building being an eyesore, " and he 22 felt "it fit very well into the eclectic nature of North Palm 23 Canyon. " And these are -- and it' s -- he appreciated that, we 24 listened to him and did not turn our backs on Indian Avenue. 25 This is the big picture that really matters to me . 26 There has to be not just a little quiet hotel sitting 27 there if you' re going to energize Indian Avenue . You have to 28 create some energy there. And that ' s what this project does . KAREN L. BURKS, CSR 3 sq I Because what it does is it puts a restaurant on Indian Avenue, 2 and it creates a pedestrian passthrough from Indian to Palm 3 Canyon. And it ' s been conditioned to construct a crosswalk on 4 Palm Canyon. So it' s essentially moving people through the 5 site, moving people from their currently successful downtown 6 street to what they hope will be a successful downtown street, 7 and it creates a certain amount of energy. 8 Now, Mr. Naficy is talking as though we ' re building an 9 enormous hotel. It' s only 39 rooms . It ' s not a big hotel . But 10 you have to -- if you' re going to achieve the don' t put your 11 backdoor on Indian, you have to put something on Indian to make 12 it have energy and to make it have a reason for people to walk 13 there . So that ' s why there is restaurants on both sides of it. 14 And those kinds of things tend to energize the site and 15 really accomplish what the city council is trying to do. They 16 are not trying to put a sleepy B&B here . They' re trying to 17 energize their downtown, trying to energize Indian Avenue, and 18 they have been trying for 30 years that I know of and they are 19 finding a project that ' s willing to say, yes, we will help you 20 do that. To do that, you have to be able to have enough going 21 on on the site to create that energy. Just putting a sleepy B&B 22 there is just going to put another backdoor on Indian and not 23 achieve what the City is looking for. 24 I mean it achieves of the City' s objective in terms of 25 energizing Indian. It achieves the City' s objective with the 26 resort overlay which is in this areas . So they say there is lot 27 of mixed restaurants, little stores, a lot of things . But this 28 is a hotel site that they can bring -- to help bring tourists KAREN L. BURKS, CSR 44 70 I right downtown, which is what their resort overlay is looking to 2 do. 3 They have also -- we have already conditioned it -- the 4 north end of Palm Springs is kind of an art district. And this 5 kind of borders on the north end of there, so they are also 6 providing an art walk where local artists could be able to 7 display on a rotating basis their art in a special created area 8 that would exist right where you have a passthrough between 9 Indian and Palm Canyon. 10 So they included a lot of things that achieve the 11 objectives that the council is really trying to achieve for 12 downtown, particularly on the Indian Avenue, and they have been 13 trying many years and had no luck. So it was important that the 14 City get something here that created a lot of energy to try and 15 get that process started. 16 MR. NAFICY: Your Honor, I don' t want to sound petty 17 about this, but what the City' s objectives were and what they 18 have tried to do in this neighborhood and all that is not in the 19 record, and counsel ' s representation -- and I don' t think it ' s 20 appropriate for the Court to consider. 21 THE COURT: Except to the extent she cited to the 22 transcript and comments of the city council members . 23 MR. NAFICY: I appreciate that, Your Honor. But -- and 24 I appreciate counsel ' s comments . But I think counsel ' s 25 comments really -- those facts are going to cut both ways . If 26 it ' s true indeed that the City wants to change -- to convert 27 this neighborhood into downtown, the Central Business District, 28 and this project is an effort to do that, that kind of supports KAREN L. BURKS, CSR 45 71 1 our arguments that they are trying to do zoning -- spot zoning 2 and do this in a piecemeal fashion. 3 And when counsel says, Well, this is not an enormous 4 project, it ' s all relative. I agree that by say Los Angeles ' 5 standards, it ' s not enormous . But the facts remain to put this 6 project in this location, they needed a PDD to not have 7 setbacks . They needed an exemption from the height restriction 8 under the high rise ordinance. They needed a general plan 9 amendment to add density. So all of these things had to be done 10 because this project didn' t fit the square that the general plan 11 had designated for it . 12 This area -- this is not downtown. This is called 13 uptown. Now, counsel knows Palm Springs better than I do. I 14 spent the weekend there this past couple of days . And there is 15 a difference. And so it is basically bringing CBD into this 16 area . And we ' re not here debating the merits of that . Maybe 17 it ' s good idea, maybe it ' s a bad idea. 18 But the fact remains that the existing neighborhood and 19 the people in it like the neighborhood community commercial . 20 That was their understanding where they were buying into, and to 21 now say, well, this is all very good for the public good. I 22 mean if the City really has the intention of converting this 23 neighborhood, which is a historic neighborhood, lower intensity 24 into an extension of CBD, the proper way of doing that is 25 general plan amendments for the whole block. 26 But I suspect that their real problem is -- and the 27 record shows that Alcazar Hotel was originally part of this 28 application, then it dropped out. I suspected record -- that KAREN L. BURKS, CSR 46 72 I the fact is that the people in this neighborhood are not onboard 2 with this plan to convert it into CBD. I know that the 3 residents of Palm Springs are very interested in maintaining the 4 historic significance, the historic feel of the city. 5 And, yes, this area is somewhat eclectic. But there 6 was a determination by the Historic Site Preservation Board that 7 this project didn' t squarely fit. So I don' t know that we can 8 even really get too much into the policy reasons why the City 9 may have wanted to create a CBD niche in the middle this 10 neighborhood commercial, you know, lower intensity development. 11 But I think the only way we can look at it is in terms of this 12 public benefit. 13 And, again, I don' t think the council has established 14 by substantial evidence that -- 15 THE COURT: We will stop there. She doesn' t have any 16 burden. 17 MR. NAEICY: What I was going to say is that to 18 establish the public interest, you have -- I think you have to 19 be able to show that but for the added density, the public 20 benefit, the project would not be realized. So could there not 21 have been a hotel and a restaurant under the existing land use 22 designation? There ' s no evidence for that. There are other 23 businesses operating in that area. 24 So I think to establish the public benefit exemption 25 exception to the spot zoning, I think they do have to make is a 26 showing that this -- that not just the project -- I mean, if 27 their definition of public benefit is accurate, then every 28 project meets that burden, because presumably every project is KAREN L. BURKS, CSR 47 73 I consistent with the city' s underlying intentions and zoning when 2 they approve it. They will generate taxes and create 3 employment . 4 So that can' t be the definition that, oh, it ' s just a 5 business, brings business to this area. I think there has to be 6 something more linking the benefit bestowed on this parcel to 7 the public benefit. And other than saying, well, we didn' t want 8 to build a sleepy hotel, I don ' t think there is evidence in the 9 record that the hotel you would build consistent with the 10 underlying land use designation would have been sleepy or not 11 generate foot traffic. I don' t think there is any evidence for 12 that . So it' s only in that limited sense . 13 THE COURT: Okay. I don' t need any more argument on 14 this point . I would like the enlarged, zoomed in zoning map -- 15 can you have it in by the end of the week? 16 MS. HEMPHILL: I will make sure it gets here . 17 THE COURT: Make sure petitioner sees it . 18 MR. NAFICY: Would you like anything from us, Your 19 Honor? 20 THE COURT: No, I don' t think so. If I decide that I 'm 21 going to reach the failure to exhaust issue, I will give you an 22 opportunity to submit a supplemental brief explaining why you 23 did or did not exhaust the administrative remedies . I 'm not 24 sure I will need that issue right now, so I won' t make you brief 25 it yet . 26 All right. Matter is under submission. 27 MR. NAFICY: Thank you, Your Honor . 28 MS . HEMPHILL: Thank you, Your Honor. KAREN L. BURKS, CSR 48 74 1 (Proceedings concluded. ) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 KAREN L. BURKS, CSR 49 75 SUPERIOR COURT - STATE OF CALIFORNIA COUNTY OF RIVERSIDE ADVOCATES FOR BETTER COMMUNITY DEVELOPMENT, Plaintiffs/Petitioner, Vs . Case No. RIC1512884 CITY OF PALM SPRINGS, et al . , ) Defendants/Respondents . I, KAREN L. BURKS, Certified Shorthand Reporter, No. 7703, do hereby certify: That on January 9, 2017, in the county of Riverside, state of California, I took in stenotype a true and correct report of the testimony given and proceedings had in the above-entitled case, Pages 1 through 49, and that the foregoing is a true and accurate transcription of my stenotype notes, taken as aforesaid, and is the whole thereof . DATED: Riverside, California, May 5, 2017 /s/ Karen L. Burks KAREN L. BURKS, CSR No . 7703 KAREN L. BURKS, CSR 50 76 Law Offices ofBabak Naficy June 26, 2017 Via Email and US Mail N C9 � Palm Springs City Council City of Palm Springs, c/o City Clerk o C= C � 3200 E. Tahquitz Canyon Way Palm Springs, California 92262 cityclerk(analmsprings-ca.gov = n m Robert.Moon(apalmsprinesca.gov Chris.Mills(apalmsnrinesca.gov � Ginny.Foat(c�nalmspringsca.eov " Geoff.Kors(a nalmsyrin sca.-ov J R.Roberts(w',palm springsca.gov 1540 Marsh Street, Suite 1 10 Re: City Council's upcoming consideration of 750 Lofts Project San Luis Obispo California 93401 Advocates for Better Community Development ("ABCD") submits this letter in ph:805-593-0926 connection with the City Council's upcoming consideration of the 750 Lofts Project fax:805-593-0946 ("Project") and ongoing issues surrounding the City's attempt to comply with the Writ of Mandate issued in Riverside Superior Court Case No. RIC 1512884. babaknaficy/sbcglobal,net ABCD would like to reiterate that in the course of its consideration of the project for possible re-approval, the City Council may choose to reconsider some or all aspects of the Project, including but not limited to the Project's height and compatibility with the Las Palmas Historic Business District. In fact, without carefull consideration of the Project in detail, individual City Councilmembers who are new to the Project are not in a position to use their independent judgment to make the findings necessary to re-approve the Project. As more fully set forth below, ABCD urges the City Council to take this opportunity to ask the Historic Site Preservation Board ("HSPB") and the Planning Commission fully consider the Project's consistency with the Las Palmas Historic District, because neither the HSPB nor the Planning Commission has ever considered the Project with the substantial added height as was approved by the City Council. One of the most important issues related to this Project is its height as it relates to the Las Palmas Historic District. As explained in the June 21, 2017 Staff Report, when HSPB considered this project in January 2015, it imposed strict height limits on the Project in order to make it compatible with the historic district. The Staff Report fails to mention, however, that the height reductions proposed by the applicant and approved by the City Council were in fact substantially less than the height reductions the HSPB had required as condition of approving the Project. 1 77 The Project as approved before Rescission was between 29'-3"to 34'-0' high along Indian Canyon Drive, well in excess of the 20 foot limit set by the HSPB or the limits contained in the Las Palmas Historic Businsess District design guidelines. Likewise, at a maximum height of 48 feet,the Project is well in excess of the 34 foot limit set by the HSPB or the guidelines. It is important to note that when the Planning Commission considered the Project and recommended approval, Staff told the Commission that the Project would be approved "subject to the conditions of approval,"which included the height limits imposed by the HSBP. Accordingly, the Planning Commission never considered the project the City eventually approved, which did not include the height limits that HSPB had concluded were necessary to maintain the integrity of the historic district. Likewise, the City Council never asked the HSPB to consider whether the minimal changes to the Project adequately addressed the HSPB's concerns about the height of the project. As such, the City Council should refer the Project back to both the HSPB and the Planning Commission for consideration and recommendation. Even if the City Council wishes to approve the Project without input from the HSPB or the Planning Commission, the City Council must adopt new resolutions, supported by appropriate findings. Of the five members of the Council, four are essentially new to the Project. Mayor Moon and council member Kors were not on the Council when this project came up. Councilmember JR Roberts considered the Project when he was on the Planning Commission, but has never considered the height issue or whether the Project, as modified, is compatible with the Las Palmas Historic Business District. Finally, Councilmember Foals had recused herself from considering the Project when it came before the City in 2015, and therefore did not participate in the City Council's consideration of the Project. Councilmembers,particularly those new to the Project who did not participate in the administrative review, must study the Project and conduct a robust discussion of the issues posed by the Project before they are able to consider the merits of the Project and make appropriate findings. Nor can the Council simply"ratify" the resolutions and findings the previous council adopted. At the Council's previous meeting, it was suggested that because the rescission of the previous resolutions was accomplished by a simple vote and pursuant to a resolution,the City Council may now ratify the rescinded Resolutions without making the requisite findings. In order to avoid further litigation, we respectfully urge the City Council to adopt proper resolutions that are supported by adequate findings. In sum, the Project as currently presented has never been adequately considered by the HSPB, Planning Commission, or current City Council, particularly in regards to its height and compatibility with the historic district. As such, it would be an abuse of discretion to simply `rubber stamp' the Project's previous approvals. Z qj Finally, it should be noted that contrary to what the City Council was led to believe at the previous hearing, it is not essential that the City take final action on this project at this time in order to comply with the Court's Writ of Mandate. The City can essentially comply with the Writ by rescinding all Project approvals at this time, and filing a return to the Writ explaining same. In fact, the City has no obligation to take any other action at this time, but should the City decide to re- approve the Project, with or without any modifications,the City may subsequently file a supplemental return to the writ explaining its actions and how the re-approval complies with the Court's direction. Accordingly,there is no urgent need to consider re-approving the Project at this time. See, for example, Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455 where in response to a writ of mandate in a CEQA litigation, the City of Los Angeles first"vacated its certification of the EIR and its project approvals" (id., at 463), and after preparing and certifying a revised EIR, the City "filed a supplemental return to the writ of mandate in April 2010 stating that it had complied with the writ by taking the actions described above." Id., at 464. Likewise, here, the City can file a return explaining that it has rescinded all Project approvals as required by the Writ of Mandate, and then file a supplemental return if and when it decides to re-approve the Project. Sincerely, B464k /V4&eT BABAK NAFICY Attorney for ABCD cc: Edward Kotkin (Edward.KotkinL;palmsprings-ca.gov) Diane Blasdel (dianegbgdesertlaw.com) 3 79 1MS; . City of Palm Springs • Office of the City Clerk �V+ " 3200 E.Tahquit±Canyon Way • Palm Springs, California 92262 cqj/FORN�P Tel:760.323.8204 • Fax:760.322.8332 •Too 760.864.9527 •www.palmspringsca.gov NOTICE OF CONTINUANCE NOTICE IS HEREBY GIVEN that the Regular Meeting held on June 21, 2017, the City Council continued Public Hearing Item No. 2.C. at 12:14 a.m. to July 5, 2017: A PROPOSED RESOLUTION COMPLYING WITH WRIT OF MANDATE, REQUIRING ELIMINATION OF THE EVENT AREA FROM PDD-374, THE "750 LOFTS" PROJECT LOCATED AT 750 N. PALM CANYON DRIVE, CONFIRMING CONFORMITY WITH THE CITY'S MUNICIPAL CODE WITH REGARD TO PARKING, AND OTHERWISE AFFIRMING APPROVAL OF PDD-374: ACTION: 1) The Public Testimony portion was closed on June 21, 2017. 2) Continue the City Council discussion to July 5, 2017. I, Kathleen D. Hart, Interim City Clerk of the City of Palm Springs, California, certify this Notice of Continuance was posted on June 22, 2017, as required by established policies and procedures. KATHLEEN D. HART, MMC Interim City Clerk I Post Office Box 2743 • Palm Springs, California 92263-2743 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AFFIRMING APPROVAL OF PLANNED DEVELOPMENT DISTRICT 374 (CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ). City Attorney Summary This Ordinance approves a Planned Development District in lieu of a change in zone for a 1.13 acre parcel located at 750 North Palm Canyon Drive. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS FINDS AND DETERMINES AS FOLLOWS: A. In 2014, 750 Lofts, LLC a California limited liability company applied for approval of Planned Development District PD-374, General Plan Amendment, Conditional Use Permit and Major Architectural Application (alternatively the "Entitlements," and/or the "Project") in order to construct a 39 room hotel on 1.13 acres of property located at 750 N. Palm Canyon Drive, Palm Springs(the"Property"). B. The Property, while itself not a historic structure, is located within the Las Palmas Business Historic District. On October 12, 2014, the Historic Site Preservation Board ("HSPB") reviewed the General Plan Amendment ("GPA"), Conditional Use Permit ("CUP"), and Planned Development District ('PDD") for the original project application which, at that time, included a hotel with forty-six (46) rooms, sixty-two (62) parking spaces and a maximum height of fifty feet (50'), with lower heights at the street frontages. The HSPB approved the original project subject to certain conditions, one of which required that the Major Architectural Application ("MAX) come back to the HSPB for review. C. The Project, including the MAJ, was brought back to the HSPB on January 13, 2015, and at that time, the HSPB approved the Project subject to conditions requiring reductions in building height, limitations on rooftop structures, and a requirement that the parking study be reviewed by the City Engineer for adequacy of off street parking such that the Project would not adversely impact the historic district. D. The Project was revised in an effort to respond to the HSPB conditions, resulting in a hotel of only thirty-nine (39) rooms, thereby reducing room count by seven (7), and reducing some building heights. E. An initial study was prepared for the Project pursuant to the California Environmental Quality Act ("CEQA"), and was circulated for a twenty (20) day period from February 6, 2015 to February 25, 2015. With the revisions to the Project prompted AA de,J 4d (IneJ �7 - 0s- 2017 Ordinance No. Page 2 by the HSPB review, the initial study was revised and re-circulated for public comment from June 29, 2015 to July 20, 2015, F. On June 24, 2015, July 22, 2015, and August 12, 2015 the Planning Commission conducted a public hearing and reviewed the project. At its August 12, 2015 meeting, the Planning Commission recommended that the Project be approved subject to the conditions of approval. G. On September 16, 2015, the City Council held a public hearing and, after taking public testimony, approved the Project, including the GPA, PDD, CUPS, MAJ and Mitigated Negative Declaration and deleted HSPB conditions 1, 2 and 3. H. On October 23, 2015, Advocates for Better Community Development filed a Petition for Writ of Mandate (the "Petition'), seeking to compel the City to rescind its approval of the Entitlements. I. In adjudicating the Petition, the Court heard three (3) basic arguments: (a) that the City Council abused its discretion when it deleted the HSPB conditions without sending the Project back to the HSPB, (b) that the City violated its municipal code for approving the Project without considering the parking requirements for the "event space", and(c)that the approval of the Project was "spot zoning:' J. The Court denied the Petition as to the claim that the City Council abused its discretion in deleting the HSPB conditions and it found nothing in the municipal code that requires the Council to refer the revised Project back to the HSPB. K. The Court also denied the Petition as to the claim of spot zoning, finding that no spot zoning occurred as no"island"was created, and the Court further found that even if it had been spot zoning, such zoning was in the public interest as it provided tourist accommodations and revitalized Indian Avenue. L. The Court, however, granted the Petition as to the issue of parking, and on April 6, 2017, issued a "Peremptory Writ of Mandate" (the 'Writ") to the City. The Writ requires neither more nor less than that the City set aside its approvals of the Entitlements until such time as the City adequately addresses all parking issues, including event space parking, as required by the City's Municipal Code. M. On May 3, 2017, the Council took affirmative preliminary action, making no findings, but rescinding Ordinance No. 1886 (the past approval of the PDD), Resolution No. 23899 (the past approval of the MAJ and the CUP) by minute action, and directing staff to schedule a public hearing in this matter. N. Staff first issued and gave proper notice of a public hearing to take place on May 17, 2017, then re-noticed this public hearing for June 7, 2017, and then continued, after being opened and properly adjourned until June 21, 2017. Ordinance No. Page 3 O. At the public hearing in this matter, the City Council considered a report and a supplemental report from its staff, inclusive of the entire City Council staff report considered on September 16, 2015 inclusive of all attachments, and a true and correct copy of the Writ; in addition, the Council received any and all written or oral testimony offered, and deliberated upon its intended action with respect to the Entitlements. P. The public hearing concluded on June 21, 2017, and the City Council instructed staff to present this case to them for a final decision upon the precise manner in which it would comply with the Court's Writ on July 5, 2017. Q. The City Council has carefully, and independently reviewed and considered all of the evidence presented in connection with this public hearing, including but not limited to the staff report and all written and oral testimony presented and has reviewed and considered the Initial Study and Mitigated Negative Declaration as approved pursuant to Resolution No. 23898. R. Given the scope and nature of the Court's Writ, the Council has determined that this matter does not require further consideration by the HSPB or the Planning Commission, and that the Council can and should take independent action at this juncture consistent with restoration and affirmation of Ordinance No. 1886(the Council's past approval of the PDD), Resolution No. 23899 (the Council's past approval of the MAJ and the CUP)in a manner consistent with the Writ. S. The Council hereby re-states the following findings, originally made on September 16, 2015, that pursuant to Palm Springs Zoning Code Sections 94.03.00 (Planned Development District) and 94.07.00 (Change of Zone), the City Council has considered and determined that the following conditions are met and justify approval of a planned development district in lieu of a change of zone: 1. The proposed change of zone is in conformity with the general plan map and report. The Planned Development District application allows for uses and development standards that are consistent with the proposed CBD land use designation of the General Plan. The CBD designation allows for a mix of commercial, residential, and office uses, and allows hotel uses at a density of up to 70 units per acre if a Planned Development District is prepared and approved. 2. The subject property is suitable for the uses permitted in the proposed zone, in terms of access, size of parcel, relationship to similar or related uses, and other considerations deemed relevant by the Planning Commission and City Council. The subject property is suitable for hotel and restaurant uses; similar uses are located on adjacent properties within the Uptown area. The parcel has access from two major thoroughfares (Palm Canyon, Indian Canyon) as designated by Ordinance No. Page 4 the General Plan, and is consistent with the intensity of development allowed under the proposed CBD land use designation. Further, the project site is located within the boundaries of the "R" Resort Overlay Zone. The proposed development would provide additional hotel rooms, restaurant, retail, spa, and cocktail lounge uses that are supportive of the tourist nature of the Uptown area, and which are consistent with the Resort Overlay Zone. 3. The proposed change of zone is necessary and proper at this time, and is not likely to be detrimental to the adjacent property or residents. The proposed development plan will assist in the redevelopment of the subject site, and will enhance economic development efforts in the area. Furthermore, as set forth in the Initial Study/Mitigated Negative Declaration prepared for the project, the project would not have a significant effect on the environment. P 1 P 1 9 Therefore the project is not likely to be detrimental to the adjacent properties or residents. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS HEREBY ORDAINS: SECTION 1. The true and correct recitals above, inclusive of all definitions, are incorporated by this reference herein as the factual basis for this Ordinance. The Council adopts this Ordinance in compliance with "Peremptory Writ of Mandate" issued by the Superior Court of the State of California to the City on April 6, 2017. SECTION 2. The list of permitted uses and development standards reflected in the Project's conditions of approval did not contain the"event space." Regardless of the terms and conditions of approval, and independent of whether the parking study in support of the Project referenced or included the "event space," that space was not removed from the Project plans prior to Council approval of the Project, and ambiguity existed in the administrative record as to whether the Project included the event space. SECTION 3. With the elimination of the event area, the Project consists of a thirty-nine (39) room hotel, a one hundred thirteen (113) seat restaurant on Palm Canyon Drive, a thirty-nine (39) seat lounge on Indian Canyon, and a twenty (20) seat roof top lounge. SECTION 4. Palm Springs Municipal Code ("PSMC") Section 93.060.00(16) requires one (1) parking space for each hotel room in any hotel having less than fifty (50)rooms. SECTION 5. PSMC Section 93.060.00(30)one(1) parking space for every three (3)seats in restaurants and lounges. SECTION 6. Given the PSMC requirements, the parking requirement for the Project includes thirty-nine (39) spaces for the hotel and fifty-eight (58) spaces for the restaurant and lounges, for a total parking requirement ninety-seven (97)spaces. Ordinance No. Page 5 SECTION 7. The Project plans as approved will provide for a total of one hundred eight (108) spaces, thirty-four (34) of which will be on-site valet spaces. The Project is conditioned to provide valet service at all times. SECTION 8. Condition of Approval number ADM 15 provides that any deviation from the number of restaurant or lounge seats shall require prior approval by the Director of Planning by means of an amendment to the use permit associated with each use, thereby assuring that the City retains control to enforce Project compliance with the PSMC as to parking. SECTION 9. An independent traffic engineer reviewed the Project's parking requirements exclusive of the event area, and found that based on the PSMC and the widely accepted and used Urban Land Institute shared parking methodology, the forecast shared parking demand for the Project can be accommodated by the one hundred eight(108)off-street parking spaces in the Project. SECTION 10. Since the issuance of the Writ and pending the City of Palm Springs' adoption of this Ordinance, all Project approvals have been and remained effectively "set aside." As such, the City has neither processed nor issued any Project permits. To ensure certainty on the part of all parties regarding the status of all Project approvals and resolutions pending adoption of this Drdinance, the City Council formally j Dei Resolution J rescinded approval of Ordinance No. 1886, regarding the Council's prior approval of the PDD, and Resolution No. 23899, regarding the Council's prior approval of the MAJ and the CUPS on May 3, 2017. SECTION 11. The environmental assessment prepared and approved pursuant to and in accord with the California Environmental Quality Act in conjunction with the Project is the controlling environmental assessment for purposes of this Ordinance. Resolution 23898,which adopted the mitigated negative declaration for the GPA for this Project, was not formally rescinded on May 3, 2017. The only defect in this environmental assessment, per the Court's ruling issued in relation to the Writ, was the City's parking analysis related to the "event space." Although the Writ set aside the City's approval of that assessment, the analysis contained therein, complemented by this Ordinance's clarification that the event area/space is no longer a part of the Project, supports the recommended action. SECTION 12. Concurrent with this Ordinance, the City Council adopts a Resolution effective immediately and consistent herewith. The City Attorney and City Clerk are hereby directed to take all necessary action to ensure the City's timely compliance with the Writ, including without limitation the filing of a Return to the Writ, explaining the City's action(s)taken to comply with the terms of the Writ. SECTION 13. The City Council hereby re-approves Planned Development Ordinance No. Page 6 District 374 in lieu of zone change, subject to the conditions of approval contained in Exhibit "A" to Ordinance 1866 and now again to this Ordinance, said conditions of approval being attached to and incorporated herein by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space" as a part of the approved Project. SECTION 14. Moreover and based upon the foregoing, (i) an additional condition shall be placed upon this approval of Planned Development District 374 which expressly requires that the "event area," also referenced in the Writ and from time to time in relation to the Project as the"event space,' is eliminated from PDD-374, and (H) given that additional condition, the approval of PDD-374 and all related approvals and resolutions, including without limitation Ordinance No. 1886 and Resolution No. 23899, adopted arising from and related to the Project are hereby reinstated and affirmed in their entirety. SECTION 15. The City Council approves the zone map change from C-1/PDD 104 to PDD 374 for the 1.13 acre parcel at 750 North Palm Canyon Drive (APN: 505-303-018). SECTION 16. If any section, subsection, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Palm Springs, hereby declares that it would have passed this Ordinance and each section of subsection, sentence, clause and phrase thereof, irrespective of the clauses or phrases being declared invalid. SECTION 17. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same, or a summary thereof, to be published and posted pursuant to the provisions of law and this Ordinance shall take effect thirty(30)days after its adoption on second reading. PASSED, APPROVED, AND ADOPTED BY THE PALM SPRINGS CITY COUNCIL THIS 5"DAY OF JULY, 2017. I1 _ { Deleted: 1 ROBERT MOON, MAYOR,ATTEST: Daeed:¶ a Deleted:¶ KATHLEEN D. HART, INTERIM CITY CLERK ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AFFIRMING APPROVAL OF PLANNED DEVELOPMENT DISTRICT 374 (CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ). City Attorney Summary This Ordinance approves a Planned Development District in lieu of a change in zone for a 1.13 acre parcel located at 750 North Palm Canyon Drive. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS FINDS AND DETERMINES AS FOLLOWS: A. In 2014, 750 Lofts, LLC a California limited liability company applied for approval of Planned Development District PD-374, General Plan Amendment, Conditional Use Permit and Major Architectural Application (alternatively the "Entitlements," and/or the "Project") in order to construct a 39 room hotel on 1.13 acres of property located at 750 N. Palm Canyon Drive, Palm Springs (the "Property'). B. The Property, while itself not a historic structure, is located within the Las Palmas Business Historic District. On October 12, 2014, the Historic Site Preservation Board ("HSPB") reviewed the General Plan Amendment ("GPA"), Conditional Use Permit ("CUP"), and Planned Development District ("PDD") for the original project application which, at that time, included a hotel with forty-six (46) rooms, sixty-two (62) parking spaces and a maximum height of fifty feet (50'), with lower heights at the street frontages. The HSPB approved the original project subject to certain conditions, one of which required that the Major Architectural Application ("MAX) come back to the HSPB for review. C. The Project, including the MAJ, was brought back to the HSPB on January 13, 2015, and at that time, the HSPB approved the Project subject to conditions requiring reductions in building height, limitations on rooftop structures, and a requirement that the parking study be reviewed by the City Engineer for adequacy of off street parking such that the Project would not adversely impact the historic district. D. The Project was revised in an effort to respond to the HSPB conditions, resulting in a hotel of only thirty-nine (39) rooms, thereby reducing room count by seven (7), and reducing some building heights. E. An initial study was prepared for the Project pursuant to the California Environmental Quality Act ("CEQA"), and was circulated for a twenty (20) day period from February 6, 2015 to February 25, 2015. With the revisions to the Project prompted Ordinance No. Page 2 by the HSPB review, the initial study was revised and re-circulated for public comment from June 29, 2015 to July 20, 2015. F. On June 24, 2015, July 22, 2015, and August 12, 2015 the Planning Commission conducted a public hearing and reviewed the project. At its August 12, 2015 meeting, the Planning Commission recommended that the Project be approved subject to the conditions of approval. G. On September 16, 2015, the City Council held a public hearing and, after taking public testimony, approved the Project, including the GPA, PDD, CUPs, MAJ and Mitigated Negative Declaration and deleted HSPB conditions 1, 2 and 3. H. On October 23, 2015, Advocates for Better Community Development filed a Petition for Writ of Mandate (the "Petition"), seeking to compel the City to rescind its approval of the Entitlements. I. In adjudicating the Petition, the Court heard three (3) basic arguments: (a) that the City Council abused its discretion when it deleted the HSPB conditions without sending the Project back to the HSPB, (b) that the City violated its municipal code for approving the Project without considering the parking requirements for the "event space', and (c) that the approval of the Project was "spot zoning." J. The Court denied the Petition as to the claim that the City Council abused its discretion in deleting the HSPB conditions and it found nothing in the municipal code that requires the Council to refer the revised Project back to the HSPB. K. The Court also denied the Petition as to the claim of spot zoning, finding that no spot zoning occurred as no "island" was created, and the Court further found that even if it had been spot zoning, such zoning was in the public interest as it provided tourist accommodations and revitalized Indian Avenue. L. The Court, however, granted the Petition as to the issue of parking, and on April 6, 2017, issued a "Peremptory Writ of Mandate" (the "Writ") to the City. The Writ requires neither more nor less than that the City set aside its approvals of the Entitlements until such time as the City adequately addresses all parking issues, including event space parking, as required by the City's Municipal Code. M. On May 3, 2017, the Council took affirmative preliminary action, making no findings, but rescinding Ordinance No. 1886 (the past approval of the PDD), Resolution No. 23899 (the past approval of the MAJ and the CUP) by minute action, and directing staff to schedule a public hearing in this matter. N. Staff first issued and gave proper notice of a public hearing to take place on May 17, 2017, then re-noticed this public hearing for June 7, 2017, and then continued, after being opened and properly adjourned until June 21, 2017. Ordinance No. Page 3 O. At the public hearing in this matter, the City Council considered a report and a supplemental report from its staff, inclusive of the entire City Council staff report considered on September 16, 2015 inclusive of all attachments, and a true and correct copy of the Writ; in addition, the Council received any and all written or oral testimony offered, and deliberated upon its intended action with respect to the Entitlements. P. The public hearing concluded on June 21, 2017, and the City Council instructed staff to present this case to them for a final decision upon the precise manner in which it would comply with the Court's Writ on July 5, 2017. Q. The City Council has carefully, and independently reviewed and considered all of the evidence presented in connection with this public hearing, including but not limited to the staff report and all written and oral testimony presented and has reviewed and considered the Initial Study and Mitigated Negative Declaration as approved pursuant to Resolution No. 23898. R. Given the scope and nature of the Court's Writ, the Council has determined that this matter does not require further consideration by the HSPB or the Planning Commission, and that the Council can and should take independent action at this juncture consistent with restoration and affirmation of Ordinance No. 1886 (the Council's past approval of the PDD), Resolution No. 23899 (the Council's past approval of the MAJ and the CUP) in a manner consistent with the Writ. S. The Council hereby re-states the following findings, originally made on September 16, 2015, that pursuant to Palm Springs Zoning Code Sections 94.03.00 (Planned Development District) and 94.07.00 (Change of Zone), the City Council has considered and determined that the following conditions are met and justify approval of a planned development district in lieu of a change of zone: 1. The proposed change of zone is in conformity with the general plan map and report. The Planned Development District application allows for uses and development standards that are consistent with the proposed CBD land use designation of the General Plan. The CBD designation allows for a mix of commercial, residential, and office uses, and allows hotel uses at a density of up to 70 units per acre if a Planned Development District is prepared and approved. 2. The subject property is suitable for the uses permitted in the proposed zone, in terms of access, size of parcel, relationship to similar or related uses, and other considerations deemed relevant by the Planning Commission and City Council. The subject property is suitable for hotel and restaurant uses; similar uses are located on adjacent properties within the Uptown area. The parcel has access from two major thoroughfares (Palm Canyon, Indian Canyon) as designated by Ordinance No. Page 4 the General Plan, and is consistent with the intensity of development allowed under the proposed CBD land use designation. Further, the project site is located within the boundaries of the "R" Resort Overlay Zone. The proposed development would provide additional hotel rooms, restaurant, retail, spa, and cocktail lounge uses that are supportive of the tourist nature of the Uptown area, and which are consistent with the Resort Overlay Zone. 3. The proposed change of zone is necessary and proper at this time, and is not likely to be detrimental to the adjacent property or residents. The proposed development plan will assist in the redevelopment of the subject site, and will enhance economic development efforts in the area. Furthermore, as set forth in the Initial Study/Mitigated Negative Declaration prepared for the project, the project would not have a significant effect on the environment. Therefore the project is not likely to be detrimental to the adjacent properties or residents. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS HEREBY ORDAINS: SECTION 1. The true and correct recitals above, inclusive of all definitions, are incorporated by this reference herein as the factual basis for this Ordinance. The Council adopts this Ordinance in compliance with "Peremptory Writ of Mandate" issued by the Superior Court of the State of California to the City on April 6, 2017. SECTION 2. The list of permitted uses and development standards reflected in the Project's conditions of approval did not contain the "event space." Regardless of the terms and conditions of approval, and independent of whether the parking study in support of the Project referenced or included the "event space," that space was not removed from the Project plans prior to Council approval of the Project, and ambiguity existed in the administrative record as to whether the Project included the event space. SECTION 3. With the elimination of the event area, the Project consists of a thirty-nine (39) room hotel, a one hundred thirteen (113) seat restaurant on Palm Canyon Drive, a thirty-nine (39) seat lounge on Indian Canyon, and a twenty (20) seat roof top lounge. SECTION 4. Palm Springs Municipal Code ("PSMC") Section 93.060.00(16) requires one (1) parking space for each hotel room in any hotel having less than fifty (50) rooms. SECTION 5. PSMC Section 93.060.00(30) one (1) parking space for every three (3) seats in restaurants and lounges. SECTION 6. Given the PSMC requirements, the parking requirement for the Project includes thirty-nine (39) spaces for the hotel and fifty-eight (58) spaces for the restaurant and lounges, for a total parking requirement ninety-seven (97) spaces. Ordinance No. Page 5 SECTION 7. The Project plans as approved will provide for a total of one hundred eight (108) spaces, thirty-four (34) of which will be on-site valet spaces. The Project is conditioned to provide valet service at all times. SECTION 8. Condition of Approval number ADM 15 provides that any deviation from the number of restaurant or lounge seats shall require prior approval by the Director of Planning by means of an amendment to the use permit associated with each use, thereby assuring that the City retains control to enforce Project compliance with the PSMC as to parking. SECTION 9. An independent traffic engineer reviewed the Project's parking requirements exclusive of the event area, and found that based on the PSMC and the widely accepted and used Urban Land Institute shared parking methodology, the forecast shared parking demand for the Project can be accommodated by the one hundred eight (108) off-street parking spaces in the Project. SECTION 10. Since the issuance of the Writ and pending the City of Palm Springs' adoption of this Ordinance, all Project approvals have been and remained effectively "set aside." As such, the City has neither processed nor issued any Project permits. To ensure certainty on the part of all parties regarding the status of all Project approvals and resolutions pending adoption of this Ordinance, the City Council formally rescinded approval of Ordinance No. 1886, regarding the Council's prior approval of the PDD, and Resolution No. 23899, regarding the Council's prior approval of the MAJ and the CUPs on May 3, 2017. SECTION 11. The environmental assessment prepared and approved pursuant to and in accord with the California Environmental Quality Act in conjunction with the Project is the controlling environmental assessment for purposes of this Ordinance. Resolution 23898, which adopted the mitigated negative declaration for the GPA for this Project, was not formally rescinded on May 3, 2017. The only defect in this environmental assessment, per the Court's ruling issued in relation to the Writ, was the City's parking analysis related to the "event space." Although the Writ set aside the City's approval of that assessment, the analysis contained therein, complemented by this Ordinance's clarification that the event area/space is no longer a part of the Project, supports the recommended action. SECTION 12. Concurrent with this Ordinance, the City Council adopts a Resolution effective immediately and consistent herewith. The City Attorney and City Clerk are hereby directed to take all necessary action to ensure the City's timely compliance with the Writ, including without limitation the filing of a Return to the Writ, explaining the City's action(s) taken to comply with the terms of the Writ. SECTION 13. The City Council hereby re-approves Planned Development District 374 in lieu of zone change, subject to the conditions of approval contained in Exhibit "A" to Ordinance 1866 and now again to this Ordinance, said conditions of Ordinance No. Page 6 approval being attached to and incorporated herein by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space" as a part of the approved Project. SECTION 14. Moreover and based upon the foregoing, (i) an additional condition shall be placed upon this approval of Planned Development District 374 which expressly requires that the "event area," also referenced in the Writ and from time to time in relation to the Project as the "event space," is eliminated from PDD-374, and (fi) given that additional condition, the approval of PDD-374 and all related approvals and resolutions, including without limitation Ordinance No. 1886 and Resolution No. 23899, adopted arising from and related to the Project are hereby reinstated and affirmed in their entirety. SECTION 15. The City Council approves the zone map change from C-1/PDD 104 to PDD 374 for the 1 .13 acre parcel at 750 North Palm Canyon Drive (APN: 505-303-018). SECTION 16. If any section, subsection, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Palm Springs, hereby declares that it would have passed this Ordinance and each section of subsection, sentence, clause and phrase thereof, irrespective of the clauses or phrases being declared invalid. SECTION 17. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same, or a summary thereof, to be published and posted pursuant to the provisions of law and this Ordinance shall take effect thirty (30) days after its adoption on second reading. PASSED, APPROVED, AND ADOPTED BY THE PALM SPRINGS CITY COUNCIL THIS 5th DAY OF JULY, 2017. ROBERT MOON, MAYOR ATTEST: KATHLEEN D. HART, INTERIM CITY CLERK RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA,AFFIRMING APPROVAL OF A MAJOR ARCHITECTURAL APPLICATION AND CONDITIONAL USE PERMITS(CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ). THE CITY COUNCIL OF THE CITY OF PALM SPRINGS FINDS AND DETERMINES AS FOLLOWS: A. In 2014, 750 Lofts, LLC a California limited liability company applied for approval of Planned Development District PD-374, General Plan Amendment, Conditional Use Permit and Major Architectural Application(alternatively the"Entitlements," and/or the "Project")in order to construct a 39 room hotel on 1.13 acres of property located at 750 N. Palm Canyon Drive, Palm Springs(the"Property"). B. The Property,while itself not a historic structure, is located within the Las Palmas Business Historic District. On October 12, 2014, the Historic Site Preservation Board ("HSPB") reviewed the General Plan Amendment("GPA"), Conditional Use Permit ("CUP"), and Planned Development District("PDD")for the original project application which, at that time, included a hotel with forty-six(46) rooms, sixty-two(62)parking spaces and a maximum height of fifty feet(50'), with lower heights at the street frontages. The HSPB approved the original project subject to certain conditions, one of which required that the Major Architectural Application("MAX)come back to the HSPB for review. C. The Project, including the MAJ, was brought back to the HSPB on January 13, 2015, and at that time, the HSPB approved the Project subject to conditions requiring reductions in building height, limitations on rooftop structures, and a requirement that the parking study be reviewed by the City Engineer for adequacy of off street parking such that the Project would not adversely impact the historic district. D. The Project was revised in an effort to respond to the HSPB conditions, resulting in a hotel of only thirty-nine(39) rooms, thereby reducing room count by seven(7), and reducing some building heights. E. An initial study was prepared for the Project pursuant to the California Environmental Quality Act("CEQA"), and was circulated for a twenty (20)day period from February 6, 2015 to February 25, 2015. With the revisions to the Project prompted by the HSPB review, the initial study was revised and re-circulated for public comment from June 29, 2015 to July 20, 2015. Resolution No. Page 2 F. On June 24, 2015, July 22, 2015, and August 12, 2015 the Planning Commission conducted a public hearing and reviewed the project. At its August 12, 2015 meeting, the Planning Commission recommended that the Project be approved subject to the conditions of approval. G. On September 16, 2015,the City Council held a public hearing and, after taking public testimony, approved the Project, including the GPA, PDD, CUP, MAJ and Mitigated Negative Declaration and deleted HSPB conditions 1, 2 and 3. H. On October 23, 2015, Advocates for Better Community Development filed a Petition for Writ of Mandate(the"Petition"), seeking to compel the City to rescind its approval of the Entitlements. I. In adjudicating the Petition,the Court heard three(3)basic arguments: (a)that the City Council abused its discretion when it deleted the HSPB conditions without sending the Project back to the HSPB, (b)that the City violated its municipal code for approving the Project without considering the parking requirements for the"event space", and(c)that the approval of the Project was"spot zoning." J. The Court denied the Petition as to the claim that the City Council abused its discretion in deleting the HSPB conditions and it found nothing in the municipal code that requires the Council to refer the revised Project back to the HSPB. K. The Court also denied the Petition as to the claim of spot zoning,finding that no spot zoning occurred as no "island"was created, and the Court further found that even if it had been spot zoning, such zoning was in the public interest as it provided tourist accommodations and revitalized Indian Avenue. L. The Court, however, granted the Petition as to the issue of parking, and on April 6, 2017, issued a"Peremptory Writ of Mandate"(the"Writ')to the City.The Writ requires neither more nor less than that the City set aside its approvals of the Entitlements until such time as the City adequately addresses all parking issues, including event space parking, as required by the City's Municipal Code. M. On May 3, 2017, the Council took affirmative preliminary action, making no findings, but rescinding Ordinance No. 1886(the past approval of the PDD), Resolution No. 23899(the past approval of the MAJ and the CUP)by minute action, and directing staff to schedule a public hearing in this matter. N. Staff first issued and gave proper notice of a public hearing to take place on May 17, 2017, then re-noticed this public hearing for June 7, 2017, and then continued, after being opened and properly adjourned until June 21, 2017. Resolution No. Page 3 O. At the public hearing in this matter, the City Council considered a report and a supplemental report from its staff, inclusive of the entire City Council staff report considered on September 16, 2015 inclusive of all attachments, and a true and correct copy of the Writ; in addition, the Council received any and all written or oral testimony offered, and deliberated upon its intended action with respect to the Entitlements. P. The public hearing concluded on June 21, 2017, and the City Council instructed staff to present this case to them for a final decision upon the precise manner in which it would comply with the Court's Writ on July 5, 2017. Q. The City Council has carefully, and independently reviewed and considered all of the evidence presented in connection with this public hearing, including but not limited to the staff report and all written and oral testimony presented and has reviewed and considered the Initial Study and Mitigated Negative Declaration as approved pursuant to Resolution No. 23898. R. Given the scope and nature of the Court's Writ, the Council has determined that this matter does not require further consideration by the HSPB or the Planning Commission, and that the Council can and should take independent action at this juncture consistent with restoration and affirmation of Ordinance No. 1886(the Council's past approval of the PDD), Resolution No. 23899 (the Council's past approval of the MAJ and the CUP)in a manner consistent with the Writ. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The true and correct recitals above, inclusive of all definitions, are incorporated by this reference herein as the factual basis for this Resolution.The Deleted:Ordinance Council adopts this Resolution in compliance with "Peremptory Writ of Mandate'issued t Deleted:ordinance by the Superior Court of the State of California to the City on April 6, 2017. SECTION 2. The list of permitted uses and development standards reflected in the Project's conditions of approval did not contain the"event space."Regardless of the terms and conditions of approval, and independent of whether the parking study in support of the Project referenced or included the"event space,"that space was not removed from the Project plans prior to Council approval of the Project, and ambiguity existed in the administrative record as to whether the Project included the event space. SECTION 3. With the elimination of the event area, the Project consists of a thirty-nine (39)room hotel, a one hundred thirteen (113)seat restaurant on Palm Canyon Drive, a thirty-nine(39)seat lounge on Indian Canyon, and a twenty(20)seat roof top lounge. SECTION 4. Palm Springs Municipal Code("PSMC")Section 93.060.00(16)requires one(1)parking space for each hotel room in any hotel having less than fifty(50)rooms. Resolution No. Page 4 SECTION 5. PSMC Section 93.060.00(30)one(1)parking space for every three(3) seats in restaurants and lounges. SECTION 6. Given the PSMC requirements, the parking requirement for the Project includes thirty-nine(39)spaces for the hotel and fifty-eight(58)spaces for the restaurant and lounges,for a total parking requirement ninety-seven (97)spaces. SECTION 7. The Project plans as approved will provide for a total of one hundred eight (108)spaces, thirty-four(34)of which will be on-site valet spaces. The Project is conditioned to provide valet service at all times. SECTION 8. Condition of Approval number ADM 15 provides that any deviation from the number of restaurant or lounge seats shall require prior approval by the Director of Planning by means of an amendment to the use permit associated with each use, thereby assuring that the City retains control to enforce Project compliance with the PSMC as to parking. SECTION 9. An independent traffic engineer reviewed the Project's parking requirements exclusive of the event area, and found that based on the PSMC and the widely accepted and used Urban Land Institute shared parking methodology, the forecast shared parking demand for the Project can be accommodated by the one hundred eight(108)off-street parking spaces in the Project. SECTION 10. Since the issuance of the Writ and pending the City of Palm Springs' adoption of this Resolution, all Project approvals have been and remained effectively Deleted:ordinance "set aside."As such, the City has neither processed nor issued any Project permits. To ensure certainty on the part of all parties regarding the status of all Project approvals and resolutions pending adoption of this Resolution, the City Council formally rescinded approval of Ordinance No. 1886, regarding the Council's prior approval of the PDD, and Resolution No. 23899, regarding the Council's prior approval of the MAJ and the CUPS on May 3, 2017. SECTION 11.The environmental assessment prepared and approved pursuant to and in accord with the California Environmental Quality Act in conjunction with the Project is the controlling environmental assessment for purposes of this Resolution. Resolution Deleted:ordinance 23898,which adopted the mitigated negative declaration for the GPA for this Project, was not formally rescinded on May 3, 2017. The only defect in this environmental assessment, per the Court's ruling issued in relation to the Writ, was the City's parking analysis related to the"event space."Although the Writ set aside the Citys approval of that assessment,the analysis contained therein, complemented by thisResolution's - Deleted:Ordinance clarification that the event area/space is no longer a part of the Project, supports the recommended action. i Resolution No, Page 5 SECTION 12.This Resolution shall be effective immediately upon its adoption. The City Attorney and City Clerk are hereby directed to take all necessary action to ensure the City's timely compliance with the Writ, including without limitation the fling of a Return to the Writ, explaining the City's action(s)taken to comply with the terms of the Writ. SECTION 13. If any section, subsection, clause or phrase of this Resolution is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Resolution. The City Council of the City of Palm Springs, hereby declares that it would have passed this Resolution and each section of subsection, sentence, clause and phrase thereof, irrespective of the clauses or phrases being declared invalid. SECTION 14. The City Council hereby re-approves a Conditional Use Permit for the cocktail lounge use, the spa use, and for hotels with kitchen facilities in more than 10% of the rooms, and consistent with the requirements of Section 94.02.00 of the Palm Springs Zoning Code(PSZC), re-states and affirms the factual findings set forth in Section 1 of Resolution 23899,originally approved on September 16, 2015, attached hereto as Exhibit"A,"and incorporated by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the"event space'as a part of the approved Project. SECTION 15. The City Council hereby re-approves a Conditional Use Permit for a high-rise building, and consistent with the requirements of Section 94.02.00 of the PSZC, re-states and affirms the factual findings set forth in Section 2 of Resolution 23899, originally approved on September 16, 2015, attached hereto as Exhibit"A," and incorporated by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the"event space" as a part of the approved Project. SECTION 16. The City Council hereby notes again, as it did in Resolution 23899, that following review by the Historic Site Preservation Board(HSPB), on June 15, 2015, the Project applicant submitted revised plans that reduce the building's overall height and massing. The Council further notes that as compared to the proposal reviewed by the HSPB, the revised plans reduced the height of the building on the Palm Canyon frontage from 32'-0"to 31'-0". Further, the Council notes that the height of the building at the Indian Canyon frontage has been reduced from a range of 32'-0"to 35'-0", and now varies between 29'-Y to 34'-0"in height. Resolution No, Page 6 SECTION 17. The City Council specifically rejects, removes, and strikes from the approvals of the Entitlements the first two(2)full sentences of the second paragraph of Section 3 of Resolution 23899 which reference the"event space" removed from the Project pursuant to and consistent with this Resolution. SECTION 18. The City Council hereby notes again, as it did in Resolution 23899, that the pool area has been moved inward, and is now 30'from the building's edge on Indian Canyon Drive. Further, the third story,which was proposed for hotel rooms in the applicant's prior submittal, has been removed and will now be utilized as a mezzanine balcony. SECTION 19. The City Council finds again, as it did in Resolution 23899,that the HSPB concerns relating to building height and massing were adequately addressed by the June 15, 2015 plan submittal. Additionally, the City Council finds again that the proposed development, has been sensitively designed within the context of the Las Palmas Business Historic District, and is in general conformance within the Design Guidelines established for the Las Palmas Business Historic District. As it did in approving Resolution 23899, the City Council again deletes Conditions No. 1, No.2, and No. 3 of the Certificate of Approval recommended by the HSPB at its January 13, 2015 meeting, which conditions imposed a maximum overall building height of 34 feet, a maximum building height of 20 feet as measured at the closest setback to the Indian Canyon Drive frontage, and a limitation on any additional shade structures on the 4th floor roof deck. SECTION 20. The City Council hereby re-approves the Major Architectural Application and, consistent with the requirements of Section 94.04.00(D)of the PSZC, re-states and affirms the factual findings set forth in Section 4 of Resolution 23899, originally approved on September 16, 2015, attached hereto as Exhibit"A," and incorporated by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the"event space"as a part of the approved Project. SECTION 21. The City Council of the City of Palm Springs hereby re-approves Case 5.1350 PDD 374/GPA/CUP/3.3795 MAJ, subject to conditions of approval outlined in Exhibit"A"except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the"event space"as a part of the approved Project. Resolution No. Page 7 SECTION 22. Moreover and based upon the foregoing, (i) an additional condition shall be placed upon the Conditional Use Permits and the Major Architectural Application which expressly requires that the"event area,"also referenced in the Writ and from time to time in relation to the Project as the"event space," is eliminated from Case 5.1350 PDD 374/GPA/CUP/3.3795 MAJ, and that(Y) subject to that change, the approval of Case 5.1350 PDD 374/GPA/CUP/3.3795 MAJ and all related approvals and resolutions, including without limitation Ordinance No. 1886 and Resolution No. 23899, adopted arising from and related to the Project are hereby reinstated and affirmed in their entirety. ADOPTED this 51h day of July, 2017. David H. Ready, City Manager ATTEST: Kathleen Hart, Interim City Clerk CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, Kathleen Hart, Interim City Clerk of the City of Palm Springs, hereby certify that Resolution No. is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on by the following vote: AYES: NOES: ABSENT: ABSTAIN: Kathleen D. Hart, Interim City Clerk City of Palm Springs, California RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AFFIRMING APPROVAL OF A MAJOR ARCHITECTURAL APPLICATION AND CONDITIONAL USE PERMITS (CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ). THE CITY COUNCIL OF THE CITY OF PALM SPRINGS FINDS AND DETERMINES AS FOLLOWS: A. In 2014, 750 Lofts, LLC a California limited liability company applied for approval of Planned Development District PD-374, General Plan Amendment, Conditional Use Permit and Major Architectural Application (alternatively the "Entitlements," and/or the "Project") in order to construct a 39 room hotel on 1.13 acres of property located at 750 N. Palm Canyon Drive, Palm Springs (the "Property"). B. The Property, while itself not a historic structure, is located within the Las Palmas Business Historic District. On October 12, 2014, the Historic Site Preservation Board ("HSPB") reviewed the General Plan Amendment ("GPA"), Conditional Use Permit ("CUP"), and Planned Development District ("PDD") for the original project application which, at that time, included a hotel with forty-six (46) rooms, sixty-two (62) parking spaces and a maximum height of fifty feet (50'), with lower heights at the street frontages. The HSPB approved the original project subject to certain conditions, one of which required that the Major Architectural Application ("MAX) come back to the HSPB for review. C. The Project, including the MAJ, was brought back to the HSPB on January 13, 2015, and at that time, the HSPB approved the Project subject to conditions requiring reductions in building height, limitations on rooftop structures, and a requirement that the parking study be reviewed by the City Engineer for adequacy of off street parking such that the Project would not adversely impact the historic district. D. The Project was revised in an effort to respond to the HSPB conditions, resulting in a hotel of only thirty-nine (39) rooms, thereby reducing room count by seven (7), and reducing some building heights. E. An initial study was prepared for the Project pursuant to the California Environmental Quality Act ("CEQA"), and was circulated for a twenty (20) day period from February 6, 2015 to February 25, 2015. With the revisions to the Project prompted by the HSPB review, the initial study was revised and re-circulated for public comment from June 29, 2015 to July 20, 2015. Resolution No. Page 2 F. On June 24, 2015, July 22, 2015, and August 12, 2015 the Planning Commission conducted a public hearing and reviewed the project. At its August 12, 2015 meeting, the Planning Commission recommended that the Project be approved subject to the conditions of approval. G. On September 16, 2015, the City Council held a public hearing and, after taking public testimony, approved the Project, including the GPA, PDD, CUP, MAJ and Mitigated Negative Declaration and deleted HSPB conditions 1, 2 and 3. H. On October 23, 2015, Advocates for Better Community Development filed a Petition for Writ of Mandate (the "Petition"), seeking to compel the City to rescind its approval of the Entitlements. I. In adjudicating the Petition, the Court heard three (3) basic arguments: (a) that the City Council abused its discretion when it deleted the HSPB conditions without sending the Project back to the HSPB, (b) that the City violated its municipal code for approving the Project without considering the parking requirements for the "event space", and (c) that the approval of the Project was "spot zoning." J. The Court denied the Petition as to the claim that the City Council abused its discretion in deleting the HSPB conditions and it found nothing in the municipal code that requires the Council to refer the revised Project back to the HSPB. K. The Court also denied the Petition as to the claim of spot zoning, finding that no spot zoning occurred as no "island" was created, and the Court further found that even if it had been spot zoning, such zoning was in the public interest as it provided tourist accommodations and revitalized Indian Avenue. L. The Court, however, granted the Petition as to the issue of parking, and on April 6, 2017, issued a "Peremptory Writ of Mandate" (the 'Writ") to the City. The Writ requires neither more nor less than that the City set aside its approvals of the Entitlements until such time as the City adequately addresses all parking issues, including event space parking, as required by the City's Municipal Code. M. On May 3, 2017, the Council took affirmative preliminary action, making no findings, but rescinding Ordinance No. 1886 (the past approval of the PDD), Resolution No. 23899 (the past approval of the MAJ and the CUP) by minute action, and directing staff to schedule a public hearing in this matter. N. Staff first issued and gave proper notice of a public hearing to take place on May 17, 2017, then re-noticed this public hearing for June 7, 2017, and then continued, after being opened and properly adjourned until June 21, 2017. Resolution No. Page 3 O. At the public hearing in this matter, the City Council considered a report and a supplemental report from its staff, inclusive of the entire City Council staff report considered on September 16, 2015 inclusive of all attachments, and a true and correct copy of the Writ; in addition, the Council received any and all written or oral testimony offered, and deliberated upon its intended action with respect to the Entitlements. P. The public hearing concluded on June 21, 2017, and the City Council instructed staff to present this case to them for a final decision upon the precise manner in which it would comply with the Court's Writ on July 5, 2017. Q. The City Council has carefully, and independently reviewed and considered all of the evidence presented in connection with this public hearing, including but not limited to the staff report and all written and oral testimony presented and has reviewed and considered the Initial Study and Mitigated Negative Declaration as approved pursuant to Resolution No. 23898. R. Given the scope and nature of the Court's Writ, the Council has determined that this matter does not require further consideration by the HSPB or the Planning Commission, and that the Council can and should take independent action at this juncture consistent with restoration and affirmation of Ordinance No. 1886 (the Council's past approval of the PDD), Resolution No. 23899 (the Council's past approval of the MAJ and the CUP) in a manner consistent with the Writ. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The true and correct recitals above, inclusive of all definitions, are incorporated by this reference herein as the factual basis for this Resolution. The Council adopts this Resolution in compliance with "Peremptory Writ of Mandate" issued by the Superior Court of the State of California to the City on April 6, 2017. SECTION 2. The list of permitted uses and development standards reflected in the Project's conditions of approval did not contain the "event space." Regardless of the terms and conditions of approval, and independent of whether the parking study in support of the Project referenced or included the "event space," that space was not removed from the Project plans prior to Council approval of the Project, and ambiguity existed in the administrative record as to whether the Project included the event space. SECTION 3. With the elimination of the event area, the Project consists of a thirty-nine (39) room hotel, a one hundred thirteen (113) seat restaurant on Palm Canyon Drive, a thirty-nine (39) seat lounge on Indian Canyon, and a twenty (20) seat roof top lounge. SECTION 4. Palm Springs Municipal Code ("PSMC") Section 93.060.00(16) requires one (1) parking space for each hotel room in any hotel having less than fifty (50) rooms. Resolution No. Page 4 SECTION 5. PSMC Section 93.060.00(30) one (1) parking space for every three (3) seats in restaurants and lounges. SECTION 6. Given the PSMC requirements, the parking requirement for the Project includes thirty-nine (39) spaces for the hotel and fifty-eight (58) spaces for the restaurant and lounges, for a total parking requirement ninety-seven (97) spaces. SECTION 7. The Project plans as approved will provide for a total of one hundred eight (108) spaces, thirty-four (34) of which will be on-site valet spaces. The Project is conditioned to provide valet service at all times. SECTION 8. Condition of Approval number ADM 15 provides that any deviation from the number of restaurant or lounge seats shall require prior approval by the Director of Planning by means of an amendment to the use permit associated with each use, thereby assuring that the City retains control to enforce Project compliance with the PSMC as to parking. SECTION 9. An independent traffic engineer reviewed the Project's parking requirements exclusive of the event area, and found that based on the PSMC and the widely accepted and used Urban Land Institute shared parking methodology, the forecast shared parking demand for the Project can be accommodated by the one hundred eight (108) off-street parking spaces in the Project. SECTION 10. Since the issuance of the Writ and pending the City of Palm Springs' adoption of this Resolution, all Project approvals have been and remained effectively .'set aside." As such, the City has neither processed nor issued any Project permits. To ensure certainty on the part of all parties regarding the status of all Project approvals and resolutions pending adoption of this Resolution, the City Council formally rescinded approval of Ordinance No. 1886, regarding the Council's prior approval of the PDD, and Resolution No. 23899, regarding the Council's prior approval of the MAJ and the CUPs on May 3, 2017. SECTION 11. The environmental assessment prepared and approved pursuant to and in accord with the California Environmental Quality Act in conjunction with the Project is the controlling environmental assessment for purposes of this Resolution. Resolution 23898, which adopted the mitigated negative declaration for the GPA for this Project, was not formally rescinded on May 3, 2017. The only defect in this environmental assessment, per the Court's ruling issued in relation to the Writ, was the City's parking analysis related to the "event space." Although the Writ set aside the City's approval of that assessment, the analysis contained therein, complemented by this Resolution's clarification that the event area/space is no longer a part of the Project, supports the recommended action. Resolution No. Page 5 SECTION 12. This Resolution shall be effective immediately upon its adoption. The City Attorney and City Clerk are hereby directed to take all necessary action to ensure the City's timely compliance with the Writ, including without limitation the filing of a Return to the Writ, explaining the City's action(s) taken to comply with the terms of the Writ. SECTION 13. If any section, subsection, clause or phrase of this Resolution is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Resolution. The City Council of the City of Palm Springs, hereby declares that it would have passed this Resolution and each section of subsection, sentence, clause and phrase thereof, irrespective of the clauses or phrases being declared invalid. SECTION 14. The City Council hereby re-approves a Conditional Use Permit for the cocktail lounge use, the spa use, and for hotels with kitchen facilities in more than 10% of the rooms, and consistent with the requirements of Section 94.02.00 of the Palm Springs Zoning Code (PSZC), re-states and affirms the factual findings set forth in Section 1 of Resolution 23899, originally approved on September 16, 2015, attached hereto as Exhibit "A," and incorporated by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space' as a part of the approved Project. SECTION 15. The City Council hereby re-approves a Conditional Use Permit for a high-rise building, and consistent with the requirements of Section 94.02.00 of the PSZC, re-states and affirms the factual findings set forth in Section 2 of Resolution 23899, originally approved on September 16, 2015, attached hereto as Exhibit "A," and incorporated by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space" as a part of the approved Project. SECTION 16. The City Council hereby notes again, as it did in Resolution 23899, that following review by the Historic Site Preservation Board (HSPB), on June 15, 2015, the Project applicant submitted revised plans that reduce the building's overall height and massing. The Council further notes that as compared to the proposal reviewed by the HSPB, the revised plans reduced the height of the building on the Palm Canyon frontage from 32'-0" to 31'-0". Further, the Council notes that the height of the building at the Indian Canyon frontage has been reduced from a range of 32'-0" to 35'-0", and now varies between 29'-3" to 34'-0" in height. Resolution No. Page 6 SECTION 17. The City Council specifically rejects, removes, and strikes from the approvals of the Entitlements the first two (2) full sentences of the second paragraph of Section 3 of Resolution 23899 which reference the "event space" removed from the Project pursuant to and consistent with this Resolution. SECTION 18. The City Council hereby notes again, as it did in Resolution 23899, that the pool area has been moved inward, and is now 30' from the building's edge on Indian Canyon Drive. Further, the third story, which was proposed for hotel rooms in the applicant's prior submittal, has been removed and will now be utilized as a mezzanine balcony. SECTION 19. The City Council finds again, as it did in Resolution 23899, that the HSPB concerns relating to building height and massing were adequately addressed by the June 15, 2015 plan submittal. Additionally, the City Council finds again that the proposed development, has been sensitively designed within the context of the Las Palmas Business Historic District, and is in general conformance within the Design Guidelines established for the Las Palmas Business Historic District. As it did in approving Resolution 23899, the City Council again deletes Conditions No. 1, No. 2, and No. 3 of the Certificate of Approval recommended by the HSPB at its January 13, 2015 meeting, which conditions imposed a maximum overall building height of 34 feet, a maximum building height of 20 feet as measured at the closest setback to the Indian Canyon Drive frontage, and a limitation on any additional shade structures on the 4th floor roof deck. SECTION 20. The City Council hereby re-approves the Major Architectural Application and, consistent with the requirements of Section 94.04.00(D) of the PSZC, re-states and affirms the factual findings set forth in Section 4 of Resolution 23899, originally approved on September 16, 2015, attached hereto as Exhibit "A," and incorporated by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space' as a part of the approved Project. SECTION 21. The City Council of the City of Palm Springs hereby re-approves Case 5.1350 PDD 374/GPA/CUP13.3795 MAJ, subject to conditions of approval outlined in Exhibit "A" except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space' as a part of the approved Project. Resolution No. Page 7 SECTION 22. Moreover and based upon the foregoing, (i) an additional condition shall be placed upon the Conditional Use Permits and the Major Architectural Application which expressly requires that the "event area," also referenced in the Writ and from time to time in relation to the Project as the "event space," is eliminated from Case 5.1350 PDD 374/GPA/CUP/3.3795 MAJ, and that (H) subject to that change, the approval of Case 5.1350 PDD 374/GPA/CUP/3.3795 MAJ and all related approvals and resolutions, including without limitation Ordinance No. 1886 and Resolution No. 23899, adopted arising from and related to the Project are hereby reinstated and affirmed in their entirety. ADOPTED this 5" day of July, 2017. David H. Ready, City Manager ATTEST: Kathleen Hart, Interim City Clerk CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, Kathleen Hart, Interim City Clerk of the City of Palm Springs, hereby certify that Resolution No. is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on by the following vote: AYES: NOES: ABSENT: ABSTAIN: Kathleen D. Hart, Interim City Clerk City of Palm Springs, California RECEI i E0 ,t P,A,LH Srfi;jI. —VOffices of Babak Naficy June 28, 2017 2017 JUL -5 A,H II: 13 \ of FICE C- ,r L: [ Via Email and US Mail Palm Springs City Council City of Palm Springs, c/o City Clerk 3200 E. Tahquitz Canyon Way Palm Springs, California 92262 cityclerk(dpalmsprings-ca.gov Robert.Moon(cj palmspringsca.gov Chris.Mill s((0almsViingSea.goy G inny.Foat((tipalmspringsca.gov Geoff.Kors(dpal msprin(,sca.eov .I R.Robet•ts(cupalnispringsca._ov 1540 Marsh Street. Suite 110 Re: 750 Lofts Project San Luis Obispo California 93401 Advocates for Better Community Development("ABCD") submits this letter in ph:805-593-0926 connection with the 750 Lofts Project("Project") and ongoing issues surrounding the fax:805-593-0946 City's attempt to comply with the Writ of Mandate issued in Riverside Superior Court Case No. RIC 1512884. ABCD would like to reiterate that the City Council may choose babaknoncy asbcglobclne' to reconsider some or all aspects of the Project, including but not limited to the Project's height and compatibility with the historic nature of the district. Moreover, without adequate consideration of the Project in detail, individual City Councilmembers who are new to the Project are not in a position to use their independent judgment to vote on the findings necessary to approve the Project. As more fully set out below, ABCD urges the City Council to take this opportunity to ask the Historic Site Preservation Board ("HSPB") and Planning Commission fully consider the Project's consistency with the Las Palmas Historic District, because neither the HSPB nor the Planning Commission has ever considered the Project with the substantial added height as was approved by the City Council. One of the most important issues related to this Project is its height as it relates to the impact on the Las Palmas Historic District. The June 21, 2017 Staff Report stated that when the HSPB considered this project in January 2015, it imposed strict height limits on the Project in order to make it compatible with the historic district. The Staff Report failed to mention, however, that the height reductions proposed by the applicant and approved by the City Council came nowhere close to those imposed by the HSPB. The Project as previously approved is between 29'-3" to 34'-0' high along Indian Canyon Drive, well in excess of the 20 foot limit set by the HSPB. Likewise, at a maximum height of 48 feet, the Project is well in excess of the 34 foot limit set by the 1 ,Q�d r4-ccrtaJ /�V�a-�-r,►-,iflo —�P•�, �J.1. 67- 6 Zo17 HSPB. The Planning Commission recommended approval "subject to the conditions of approval." These conditions included the height limits imposed by the HSBP. The Planning Commission was led to believe by staff that the Project would be subject to IISBP's height limits. Accordingly, the Planning Commission never considered the project the City approved, which did not include the height limits that HSPB concluded were necessary to maintain the integrity of the historic district. Likewise, the City Council never asked the HSPB to consider whether the minimal changes to the Project adequately addressed the concerns that necessitated the height restrictions. As such, the City Council should refer the Project back to both the HSPB and the Planning Commission for consideration and recommendation. Even if the City Council wishes to approve the Project without input from the IISPB or the Planning Commission,the City Council must adopt new resolutions, supported by appropriate findings. Of the five members of the Council,four are essentially new to the Project. Mayor Moon and supervisor Kors were not on the Council when this project came up. Councilmember JR Roberts considered the Project when he was on the Planning Commission, but Mr. Roberts has never considered the height issue or whether the Project, as modified,is compatible with the Las Palmas Historic Business District. Finally, Councilmember Foats had recused herself from considering the Project when it came before the City in 2015. Councilmembers, particularly those new to the Project that did not participate in the administrative review,must conduct a robust discussion of the issues posed by the Project before they are able to consider the merits of the Project and make appropriate findings. Nor can the Council simply"ratify"the resolutions and findings the previous council adopted. At the Council's previous meeting, it was suggested that because the rescission of the previous resolutions was accomplished by a simple vote and pursuant to a resolution,the City Council may now ratify the rescinded Resolutions without making the requisite findings. In order to avoid further litigation, we respectfully urge the City Council to adopt proper resolutions that supported adequate findings. In sum, the Project as currently presented has never been adequately considered by the RSPB, Planning Commission, or current City Council,particularly in regards to its height and compatibility with the historic district. As such, it would be an abuse of discretion to simply `rubber stamp' the Project's previous approvals. Sincerely, l BABAK NAFICY 4 Attorney for ABCD cc: Edward Kotkin Edward.Kotkin(apalmsprings-ca.gov 2 292 East Via Alhambra Palm Springs, CA 92262 sarafrith@amail.com 424-230-6065 July 5, 2017 Palm Springs City Council 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 Attention: City Clerk Re: 750 Lofts, LLC planned development at 750 North Palm Canyon Drive/Case nos. 5.1350 PDD 374/ GPA/CUP and 3.3795 MAJ Dear Council Members refer to the above-referenced matter, which has come before you with a range of options to consider. And I urge you to take this opportunity to refer the matter back to Planning with directions that it be brought into conformity with the City's General Plan and the other building ordinances and guidelines, not merely with regard to the parking and event space issues set forth in the court order. Because the city voided the old permits on May 3, 2017, the City Council have the opportunity to look at this project again, not simply, as Councilman Roberts asserted at the public hearing on June 21, to address the court order regarding the event center and parking. I hope you will take that opportunity. Indeed, legally, I believe you are now required to start over, because once a permit has been rescinded, there is simply no legal procedure under the City's ordinances to reinstate it,with or without modifications. To allow proper administrative due process, a new permit application must be filed, and new findings of fact regarding compliance with the City's General Plan, the Las Palmas Business Historic District Conceptual Design Guidelines (the"Las Palmas Design Guidelines')and the City's applicable ordinances, including the PDD, must be made. Under the applicable laws, you cannot simply rely on the old "findings of fact"for the voided permits and reinstate those voided permits. Only one of the five current Council members even heard the evidence last time around and you must make your own findings of fact regarding compliance—and that will be a challenge. If you study the record for the past application carefully, you cannot fail to see that the Staff Reports and the recommendations and conclusions cited therein and relied upon by the Planning Commission and the City Council regarding conformity to the City's guidelines, ordinances, and General Plan are simply not reasonable on the evidence. In addition, the frequent conclusions in the NMD that the project will have "no significant impact" and that therefore there was no need to require an environmental impact report are also indefensible on the facts. The height of this structure and its density are totally out of keeping with the surrounding area and historic neighboring buildings, which were supposed to be protected from precisely this type of excessive and inconsistent new construction. That was the purpose and intent of the Las Palmas Design Guidelines. This site is surrounded by one and two story buildings rising from 10-25 feet, and the site itself contains a two story building. On Indian Canyon, the site to the north is a one story historic revival property, to the East is the one story Spanish revival boutique hotel, Los Arboles. Next to that is the Movie Colony hotel, a two story structure, next to that is the one and two story Triada boutique hotel in the Spanish revival style, and then the one and two story Colony Palms hotel, and to the South of the site is the one and two story Spanish revival Alcazar hotel. All these buildings are built around garden courtyards with a high proportion of ground level open space, with their pools located discretely within their courtyards,where their own hotel rooms providing noise buffers for the surrounding neighborhood, including the residential Movie Colony neighborhood. There is a consistency of architecture and scale which this building is not compatible with, and which has preserved this area as one of the most important for high end boutique hotels. Those hotels have all been recently renovated within the existing rules, without all the concessions and unfair advantages this building applicant has sought through use of the PDD process and other variances. I have attached the Las Palmas Conceptual Guidelines. In every aspect this project fails to comply with them. The Historic Site Preservation Board recognized this when it conditioned approval on a reduction in height and increase in setbacks, and even those conditions(which were not complied with)would not have bought the project into compliance with the Las Palmas Building Guidelines. With regard to compliance with the General Plan, and the Las Palmas Conceptual Guidelines, you have planning commissioners on the record stating that in approving this building "we are really tearing up these documents". You have former members of the a Historic Site Preservation Board appearing before the planning commission to object. All were ignored by the City. Even the open space and setback requirements of the High Rise ordinance were not complied with and certainly there is no public benefit which was supposed to compensate for the concessions granted. The City further failed to order a full Environmental Impact Assessment for this project and instead relied on a Negative Mitigation Declaration that was on its face, so full of unsustainable conclusions of"no material impact", it was truly shocking. But to challenge such an abuse of power would have required private citizens to spend tens of thousands of dollars to commission the proper studies and then go to court on those issues. It is a disgrace that the City places its citizenry in such a position by its failure to carry out its duties to ensure compliance with and enforce its own General Plan and building ordinances. This building, if it proceeds,will profoundly and permanently destroy a well preserved area of the City, and will forever change the appearance of this City and the impression it makes as you arrive from the North down Highway 111. The outrage of the citizenry will be felt at that point but it will be too late. Sure, yet another City Council can be voted in to stop such things from happening again. But it will be impossible to reverse the damage to the City's landscape. This project was previously approved at a different time in this City's history and you and your fellow council members were voted in to stop the prior abuse of the building application process and restore some balance to the competing interests of existing residents (both private and business)and new developers. Most importantly, you were voted in to ensure that this City's General Plan and building ordinances were complied with going forward. This project may be part of the old business of the prior council but unlike in some other cases,with this project building has not yet commenced, the horse is not yet out of the gates. So you have here an opportunity to make a significant departure with past bad practice and to change that history. To fail to do so would be to fail to carry out the peoples' mandate from the last election and would be a further failure by the City fathers to protect this City for future generations. Sincerely V SARA FRITH . 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I 1 1 i 1 � a i e i E p Kathie Hart From: Edward Kotkin Sent: Wednesday,July 05, 2017 1:36 PM To: Kathie Hart Subject: FW: 750 Lofts Development project Attachments: mage001.jpg; image002.jpg; image003.jpg; image004.jpg Also—for yellow folder.... From:Geoff Kors Sent:Wednesday,July 05, 2017 1:02 PM To: Edward Kotkin <Edward.Kotkin@palmsprings-ca.gov>; Flinn Fagg<Flinn.Fagg@palmsprings-ca.gov>; David Ready <David.Ready@pa Imsprings-ca.gov> Subject: Fwd: 750 Lofts Development project FYI Sent from my phone Begin forwarded message: From: Gonzalo Rodriguez<grod riguez@triads pal msprings.com> Date:July 5, 2017 at 12:56:30 PDT To: "Robert.Moon@ paimspringsca.gov" <Robert.Moon @pa lmspringsca.gov>, "Geoff.Kors@ pa lmsprings- ca.gov" <Geoff.Kors@palmsprings-ca.gov>, "Chris.Mills@palmsprings-ca.gov" <Chris.Mills@palmsprings- ca.gov>, "Ginny.Foat@palmsprings-ca.gov" <Ginny.Foat@palmsprings-ca.goy>, "JR.Roberts@palmsorings- ca. ov" <JR.Roberts@palmsprings-ca.gov> Cc: "Christina.Chartier@palmspringsca.gov" <Christina.Chartier@palmspringsca.gov> Subject:750 Lofts Development project Good day Mayor Moon and City Council members, this email is to inform you that I have not received any hearing information about the 750 lofts development project from the city. We strongly oppose this project for the reason below. • Safety along Indian Canyon Drive traffic. • Parking that will over flow onto Altamira street and our parking areas. • The project will obstruct mountain views for our Movie Colony Hotel and Triada Hotel guests. • The impact this will cost our Marriott Reward guests for the Triada Hotel. • Multi story building with event center in a Historical district. • As the Movie Colony Hotel is one of Albert Frey's original designed buildings, it will take away from the Historical value. • Our both properties are directly in front of the 750 Loft project and are within 500 feet of the impact zone. These are a few important reasons why we strongly oppose this project and wish that this email is place on record for today`s hearing. Should you have any questions, please feel free in contacting me directly at 760.844.7000 ext. 3700. Sincerely, - l- 0 '1 — 05'— 201 1 Gonzalo Rodriguez I GENERAL MANAGER Triada Palm Springs—Autograph Collection Hotels 640 N Indian Canyon Drive— Palm Springs, CA Movie Colony Hotel 726 N Indian Canyon Drive—Palm Springs, CA D: 760-424-3700 1 F: 760-424-3721 grodriuez@triadapalmsprines.com z ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AFFIRMING APPROVAL OF PLANNED DEVELOPMENT DISTRICT 374 (CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ). City Attorney Summary This Ordinance approves a Planned Development District in lieu of a change in zone for a 1.13 acre parcel located at 750 North Palm Canyon Drive. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS FINDS AND DETERMINES AS FOLLOWS: A. In 2014, 750 Lofts, LLC a California limited liability company applied for approval of Planned Development District PD-374, General Plan Amendment, Conditional Use Permit and Major Architectural Application (alternatively the "Entitlements,' and/or the "Project') in order to construct a 39 room hotel on 1.13 acres of property located at 750 N. Palm Canyon Drive, Palm Springs(the"Property"). B. The Property, while itself not a historic structure, is located within the Las Palmas Business Historic District. On October 12, 2014, the Historic Site Preservation Board ("HSPB") reviewed the General Plan Amendment ("GPA"), Conditional Use Permit ("CUP"), and Planned Development District ("PDD") for the original project application which, at that time, included a hotel with forty-six (46) rooms, sixty-two (62) parking spaces and a maximum height of fifty feet (50'), with lower heights at the street frontages. The HSPB approved the original project subject to certain conditions, one of which required that the Major Architectural Application ("MAX) come back to the HSPB for review. C. The Project, including the MAJ, was brought back to the HSPB on January 13, 2015, and at that time, the HSPB approved the Project subject to conditions requiring reductions in building height, limitations on rooftop structures, and a requirement that the parking study be reviewed by the City Engineer for adequacy of off street parking such that the Project would not adversely impact the historic district. D. The Project was revised in an effort to respond to the HSPB conditions, resulting in a hotel of only thirty-nine (39) rooms, thereby reducing room count by seven (7), and reducing some building heights. E. An initial study was prepared for the Project pursuant to the California Environmental Quality Act ("CEQA"), and was circulated for a twenty (20) day period from February 6, 2015 to February 25, 2015. With the revisions to the Project prompted (added i1�a FP 'a(s — �d (Ine t d �1 - 05- z�( 7 Ordinance No. Page 2 by the HSPB review, the initial study was revised and re-circulated for public comment from June 29, 2015 to July 20, 2015. F. On June 24, 2015, July 22, 2015, and August 12, 2015 the Planning Commission conducted a public hearing and reviewed the project. At its August 12, 2015 meeting, the Planning Commission recommended that the Project be approved subject to the conditions of approval. G. On September 16, 2015, the City Council held a public hearing and, after taking public testimony, approved the Project, including the GPA, PDD, CUPS, MAJ and Mitigated Negative Declaration and deleted HSPB conditions 1,2 and 3. H. On October 23, 2015, Advocates for Better Community Development filed a Petition for Writ of Mandate (the "Petition'), seeking to compel the City to rescind its approval of the Entitlements. I. In adjudicating the Petition, the Court heard three (3) basic arguments: (a) that the City Council abused its discretion when it deleted the HSPB conditions without sending the Project back to the HSPB, (b) that the City violated its municipal code for approving the Project without considering the parking requirements for the "event space", and (c)that the approval of the Project was"spot zoning." J. The Court denied the Petition as to the claim that the City Council abused its discretion in deleting the HSPB conditions and it found nothing in the municipal code that requires the Council to refer the revised Project back to the HSPB. K. The Court also denied the Petition as to the claim of spot zoning, finding that no spot zoning occurred as no "island"was created, and the Court further found that even if it had been spot zoning, such zoning was in the public interest as it provided tourist accommodations and revitalized Indian Avenue. L. The Court, however, granted the Petition as to the issue of parking, and on April 6, 2017, issued a "Peremptory Writ of Mandate' (the 'Writ") to the City. The Writ requires neither more nor less than that the City set aside its approvals of the Entitlements until such time as the City adequately addresses all parking issues, including event space parking, as required by the City's Municipal Code. M. On May 3, 2017, the Council took affirmative preliminary action, making no findings, but rescinding Ordinance No. 1886 (the past approval of the PDD), Resolution No. 23899 (the past approval of the MAJ and the CUP) by minute action, and directing staff to schedule a public hearing in this matter. N. Staff first issued and gave proper notice of a public hearing to take place on May 17, 2017, then re-noticed this public hearing for June 7, 2017, and then continued, after being opened and properly adjourned until June 21, 2017. Ordinance No. Page 3 O. At the public hearing in this matter, the City Council considered a report and a supplemental report from its staff, inclusive of the entire City Council staff report considered on September 16, 2015 inclusive of all attachments, and a true and correct copy of the Writ; in addition, the Council received any and all written or oral testimony offered, and deliberated upon its intended action with respect to the Entitlements. P. The public hearing concluded on June 21, 2017, and the City Council instructed staff to present this case to them for a final decision upon the precise manner in which it would comply with the Court's Writ on July 5, 2017. Q. The City Council has carefully, and independently reviewed and considered all of the evidence presented in connection with this public hearing, including but not limited to the staff report and all written and oral testimony presented and has reviewed and considered the Initial Study and Mitigated Negative Declaration as approved pursuant to Resolution No. 23898. R. Given the scope and nature of the Court's Writ, the Council has determined that this matter does not require further consideration by the HSPB or the Planning Commission, and that the Council can and should take independent action at this juncture consistent with restoration and affirmation of Ordinance No. 1886(the Council's past approval of the PDD), Resolution No. 23899 (the Council's past approval of the MAJ and the CUP)in a manner consistent with the Writ. S. The Council hereby re-states the following findings, originally made on September 16, 2015, that pursuant to Palm Springs Zoning Code Sections 94.03.00 (Planned Development District) and 94.07.00 (Change of Zone), the City Council has considered and determined that the following conditions are met and justify approval of a planned development district in lieu of a change of zone: 1. The proposed change of zone is in conformity with the general plan map and report. The Planned Development District application allows for uses and development standards that are consistent with the proposed CBD land use designation of the General Plan. The CBD designation allows for a mix of commercial, residential, and office uses, and allows hotel uses at a density of up to 70 units per acre if a Planned Development District is prepared and approved. 2. The subject property is suitable for the uses permitted in the proposed zone, in terms of access, size of parcel, relationship to similar or related uses, and other considerations deemed relevant by the Planning Commission and City Council. The subject property is suitable for hotel and restaurant uses; similar uses are located on adjacent properties within the Uptown area. The parcel has access from two major thoroughfares (Palm Canyon, Indian Canyon) as designated by Ordinance No. Page 4 the General Plan, and is consistent with the intensity of development allowed under the proposed CBD land use designation. Further, the project site is located within the boundaries of the "R" Resort Overlay Zone. The proposed development would provide additional hotel rooms, restaurant, retail, spa, and cocktail lounge uses that are supportive of the tourist nature of the Uptown area, and which are consistent with the Resort Overlay Zane. 3. The proposed change of zone is necessary and proper at this time, and is not likely to be detrimental to the adjacent property or residents. The proposed development plan will assist in the redevelopment of the subject site, and will enhance economic development efforts in the area. Furthermore, as set forth in the Initial Study/Mitigated Negative Declaration prepared for the project, the project would not have a significant effect on the environment. Therefore the project is not likely to be detrimental to the adjacent properties or residents. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS HEREBY ORDAINS: SECTION 1. The true and correct recitals above, inclusive of all definitions, are incorporated by this reference herein as the factual basis for this Ordinance. The Council adopts this Ordinance in compliance with "Peremptory Writ of Mandate" issued by the Superior Court of the State of California to the City on April 6, 2017. SECTION 2. The list of permitted uses and development standards reflected in the Project's conditions of approval did not contain the"event space." Regardless of the terms and conditions of approval, and independent of whether the parking study in support of the Project referenced or included the "event space," that space was not removed from the Project plans prior to Council approval of the Project, and ambiguity existed in the administrative record as to whether the Project included the event space. SECTION 3. With the elimination of the event area, the Project consists of a thirty-nine (39) room hotel, a one hundred thirteen (113) seat restaurant on Palm Canyon Drive, a thirty-nine (39) seat lounge on Indian Canyon, and a twenty (20) seat roof top lounge. SECTION 4. Palm Springs Municipal Code ("PSMC") Section 93.060.00(16) requires one (1) parking space for each hotel room in any hotel having less than fifty (50)rooms. SECTION 5. PSMC Section 93.060.00(30) one (1) parking space for every three (3)seats in restaurants and lounges. SECTION 6. Given the PSMC requirements, the parking requirement for the Project includes thirty-nine (39) spaces for the hotel and fifty-eight (58) spaces for the restaurant and lounges,for a total parking requirement ninety-seven (97)spaces. Ordinance No. Page 5 SECTION 7. The Project plans as approved will provide for a total of one hundred eight (108) spaces, thirty-four (34) of which will be on-site valet spaces. The Project is conditioned to provide valet service at all times. SECTION 8. Condition of Approval number ADM 15 provides that any deviation from the number of restaurant or lounge seats shall require prior approval by the Director of Planning by means of an amendment to the use permit associated with each use, thereby assuring that the City retains control to enforce Project compliance with the PSMC as to parking. SECTION 9. An independent traffic engineer reviewed the Project's parking requirements exclusive of the event area, and found that based on the PSMC and the widely accepted and used Urban Land Institute shared parking methodology, the forecast shared parking demand for the Project can be accommodated by the one hundred eight(108)off-street parking spaces in the Project. SECTION 10. Since the issuance of the Writ and pending the City of Palm Springs' adoption of this Ordinance, all Project approvals have been and remained effectively "set aside." As such, the City has neither processed nor issued any Project permits. To ensure certainty on the part of all parties regarding the status of all Project _ approvals and resolutions pending adoption of this Ordinance, the City Council formally omated:Resolmbn rescinded approval of Ordinance No. 1886, regarding the Council's prior approval of the PDD, and Resolution No. 23899, regarding the Council's prior approval of the MAJ and the CUPs on May 3, 2017. SECTION 11. The environmental assessment prepared and approved pursuant to and in accord with the California Environmental Quality Act in conjunction with the Project is the controlling environmental assessment for purposes of this Ordinance. Resolution 23898, which adopted the mitigated negative declaration for the GPA for this Project, was not formally rescinded on May 3, 2017. The only defect in this environmental assessment, per the Court's ruling issued in relation to the Writ, was the City's parking analysis related to the "event space." Although the Writ set aside the City's approval of that assessment, the analysis contained therein, complemented by this Ordinance's clarification that the event area/space is no longer a part of the Project, supports the recommended action. SECTION 12. Concurrent with this Ordinance, the City Council adopts a Resolution effective immediately and consistent herewith. The City Attorney and City Clerk are hereby directed to take all necessary action to ensure the City's timely compliance with the Writ, including without limitation the fling of a Return to the Writ, explaining the City's action(s)taken to comply with the terms of the Writ. SECTION 13. The City Council hereby re-approves Planned Development Ordinance No. Page 6 District 374 in lieu of zone change, subject to the conditions of approval contained in Exhibit "A" to Ordinance 1866 and now again to this Ordinance, said conditions of approval being attached to and incorporated herein by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space" as a part of the approved Project. SECTION 14. Moreover and based upon the foregoing, (i) an additional condition shall be placed upon this approval of Planned Development District 374 which expressly requires that the "event area," also referenced in the Writ and from time to time in relation to the Project as the "event space," is eliminated from PDD-374, and (H) given that additional condition, the approval of PDD-374 and all related approvals and resolutions, including without limitation Ordinance No. 1886 and Resolution No. 23899, adopted arising from and related to the Project are hereby reinstated and affirmed in their entirety. SECTION 15. The City Council approves the zone map change from C-1/PDD 104 to PDD 374 for the 1.13 acre parcel at 750 North Palm Canyon Drive (APN: 505-303-018). SECTION 16, If any section, subsection, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Palm Springs, hereby declares that it would have passed this Ordinance and each section of subsection, sentence, clause and phrase thereof, irrespective of the clauses or phrases being declared invalid. SECTION 17. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same, or a summary thereof, to be published and posted pursuant to the provisions of law and this Ordinance shall take effect thirty(30) days after its adoption on second reading. PASSED, APPROVED, AND ADOPTED BY THE PALM SPRINGS CITY COUNCIL THIS 51" DAY OF JULY, 2017. --�Deleted:¶ ROBERT MOON, MAYOR ---� ,ATTEST: -Deleted n KATHLEEN D. HART, INTERIM CITY CLERK ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AFFIRMING APPROVAL OF PLANNED DEVELOPMENT DISTRICT 374 (CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ). City Attorney Summary This Ordinance approves a Planned Development District in lieu of a change in zone for a 1.13 acre parcel located at 750 North Palm Canyon Drive. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS FINDS AND DETERMINES AS FOLLOWS: A. In 2014, 750 Lofts, LLC a California limited liability company applied for approval of Planned Development District PD-374, General Plan Amendment, Conditional Use Permit and Major Architectural Application (alternatively the "Entitlements," and/or the "Project") in order to construct a 39 room hotel on 1.13 acres of property located at 750 N. Palm Canyon Drive, Palm Springs (the "Property"). B. The Property, while itself not a historic structure, is located within the Las Palmas Business Historic District. On October 12, 2014, the Historic Site Preservation Board ("HSPB") reviewed the General Plan Amendment ("GPA"), Conditional Use Permit ("CUP"), and Planned Development District ("PDD") for the original project application which, at that time, included a hotel with forty-six (46) rooms, sixty-two (62) parking spaces and a maximum height of fifty feet (50'), with lower heights at the street frontages. The HSPB approved the original project subject to certain conditions, one of which required that the Major Architectural Application ("MAX) come back to the HSPB for review. C. The Project, including the MAJ, was brought back to the HSPB on January 13, 2015, and at that time, the HSPB approved the Project subject to conditions requiring reductions in building height, limitations on rooftop structures, and a requirement that the parking study be reviewed by the City Engineer for adequacy of off street parking such that the Project would not adversely impact the historic district. D. The Project was revised in an effort to respond to the HSPB conditions, resulting in a hotel of only thirty-nine (39) rooms, thereby reducing room count by seven (7), and reducing some building heights. E. An initial study was prepared for the Project pursuant to the California Environmental Quality Act ("CEQA"), and was circulated for a twenty (20) day period from February 6, 2015 to February 25, 2015. With the revisions to the Project prompted Ordinance No. Page 2 by the HSPB review, the initial study was revised and re-circulated for public comment from June 29, 2015 to July 20, 2015. F. On June 24, 2015, July 22, 2015, and August 12, 2015 the Planning Commission conducted a public hearing and reviewed the project. At its August 12, 2015 meeting, the Planning Commission recommended that the Project be approved subject to the conditions of approval. G. On September 16, 2015, the City Council held a public hearing and, after taking public testimony, approved the Project, including the GPA, PDD, CUPs, MAJ and Mitigated Negative Declaration and deleted HSPB conditions 1 , 2 and 3. H. On October 23, 2015, Advocates for Better Community Development filed a Petition for Writ of Mandate (the "Petition'), seeking to compel the City to rescind its approval of the Entitlements. I. In adjudicating the Petition, the Court heard three (3) basic arguments: (a) that the City Council abused its discretion when it deleted the HSPB conditions without sending the Project back to the RSPB, (b) that the City violated its municipal code for approving the Project without considering the parking requirements for the "event space", and (c) that the approval of the Project was "spot zoning." J. The Court denied the Petition as to the claim that the City Council abused its discretion in deleting the HSPB conditions and it found nothing in the municipal code that requires the Council to refer the revised Project back to the HSPB. K. The Court also denied the Petition as to the claim of spot zoning, finding that no spot zoning occurred as no "island" was created, and the Court further found that even if it had been spot zoning, such zoning was in the public interest as it provided tourist accommodations and revitalized Indian Avenue. L. The Court, however, granted the Petition as to the issue of parking, and on April 6, 2017, issued a "Peremptory Writ of Mandate" (the "Writ") to the City. The Writ requires neither more nor less than that the City set aside its approvals of the Entitlements until such time as the City adequately addresses all parking issues, including event space parking, as required by the City's Municipal Code. M. On May 3, 2017, the Council took affirmative preliminary action, making no findings, but rescinding Ordinance No. 1886 (the past approval of the PDD), Resolution No. 23899 (the past approval of the MAJ and the CUP) by minute action, and directing staff to schedule a public hearing in this matter. N. Staff first issued and gave proper notice of a public hearing to take place on May 17, 2017, then re-noticed this public hearing for June 7, 2017, and then continued, after being opened and properly adjourned until June 21, 2017. Ordinance No. Page 3 O. At the public hearing in this matter, the City Council considered a report and a supplemental report from its staff, inclusive of the entire City Council staff report considered on September 16, 2015 inclusive of all attachments, and a true and correct copy of the Writ; in addition, the Council received any and all written or oral testimony offered, and deliberated upon its intended action with respect to the Entitlements. P. The public hearing concluded on June 21, 2017, and the City Council instructed staff to present this case to them for a final decision upon the precise manner in which it would comply with the Court's Writ on July 5, 2017. O. The City Council has carefully, and independently reviewed and considered all of the evidence presented in connection with this public hearing, including but not limited to the staff report and all written and oral testimony presented and has reviewed and considered the Initial Study and Mitigated Negative Declaration as approved pursuant to Resolution No. 23898. R. Given the scope and nature of the Court's Writ, the Council has determined that this matter does not require further consideration by the HSPB or the Planning Commission, and that the Council can and should take independent action at this juncture consistent with restoration and affirmation of Ordinance No. 1886 (the Council's past approval of the PDD), Resolution No. 23899 (the Council's past approval of the MAJ and the CUP) in a manner consistent with the Writ. S. The Council hereby re-states the following findings, originally made on September 16, 2015, that pursuant to Palm Springs Zoning Code Sections 94.03.00 (Planned Development District) and 94.07.00 (Change of Zone), the City Council has considered and determined that the following conditions are met and justify approval of a planned development district in lieu of a change of zone: 1. The proposed change of zone is in conformity with the general plan map and report. The Planned Development District application allows for uses and development standards that are consistent with the proposed CBD land use designation of the General Plan. The CBD designation allows for a mix of commercial, residential, and office uses, and allows hotel uses at a density of up to 70 units per acre if a Planned Development District is prepared and approved. 2. The subject property is suitable for the uses permitted in the proposed zone, in terms of access, size of parcel, relationship to similar or related uses, and other considerations deemed relevant by the Planning Commission and City Council. The subject property is suitable for hotel and restaurant uses; similar uses are located on adjacent properties within the Uptown area. The parcel has access from two major thoroughfares (Palm Canyon, Indian Canyon) as designated by . _ Ordinance No. Page 4 the General Plan, and is consistent with the intensity of development allowed under the proposed CBD land use designation. Further, the project site is located within the boundaries of the "R" Resort Overlay Zone. The proposed development would provide additional hotel rooms, restaurant, retail, spa, and cocktail lounge uses that are supportive of the tourist nature of the Uptown area, and which are consistent with the Resort Overlay Zone. 3. The proposed change of zone is necessary and proper at this time, and is not likely to be detrimental to the adjacent property or residents. The proposed development plan will assist in the redevelopment of the subject site, and will enhance economic development efforts in the area. Furthermore, as set forth in the Initial Study/Mitigated Negative Declaration prepared for the project, the project would not have a significant effect on the environment. Therefore the project is not likely to be detrimental to the adjacent properties or residents. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS HEREBY ORDAINS: SECTION 1. The true and correct recitals above, inclusive of all definitions, are incorporated by this reference herein as the factual basis for this Ordinance. The Council adopts this Ordinance in compliance with "Peremptory Writ of Mandate" issued by the Superior Court of the State of California to the City on April 6, 2017. SECTION 2. The list of permitted uses and development standards reflected in the Project's conditions of approval did not contain the "event space." Regardless of the terms and conditions of approval, and independent of whether the parking study in support of the Project referenced or included the "event space," that space was not removed from the Project plans prior to Council approval of the Project, and ambiguity existed in the administrative record as to whether the Project included the event space. SECTION 3. With the elimination of the event area, the Project consists of a thirty-nine (39) room hotel, a one hundred thirteen (113) seat restaurant on Palm Canyon Drive, a thirty-nine (39) seat lounge on Indian Canyon, and a twenty (20) seat roof top lounge. SECTION 4. Palm Springs Municipal Code ("PSMC") Section 93.060.00(16) requires one (1) parking space for each hotel room in any hotel having less than fifty (50) rooms. SECTION 5. PSMC Section 93.060.00(30) one (1) parking space for every three (3) seats in restaurants and lounges. SECTION 6. Given the PSMC requirements, the parking requirement for the Project includes thirty-nine (39) spaces for the hotel and fifty-eight (58) spaces for the restaurant and lounges, for a total parking requirement ninety-seven (97) spaces. Ordinance No. Page 5 SECTION 7. The Project plans as approved will provide for a total of one hundred eight (108) spaces, thirty-four (34) of which will be on-site valet spaces. The Project is conditioned to provide valet service at all times. SECTION 8. Condition of Approval number ADM 15 provides that any deviation from the number of restaurant or lounge seats shall require prior approval by the Director of Planning by means of an amendment to the use permit associated with each use, thereby assuring that the City retains control to enforce Project compliance with the PSMC as to parking. SECTION 9. An independent traffic engineer reviewed the Project's parking requirements exclusive of the event area, and found that based on the PSMC and the widely accepted and used Urban Land Institute shared parking methodology, the forecast shared parking demand for the Project can be accommodated by the one hundred eight (108) off-street parking spaces in the Project. SECTION 10. Since the issuance of the Writ and pending the City of Palm Springs' adoption of this Ordinance, all Project approvals have been and remained effectively "set aside." As such, the City has neither processed nor issued any Project permits. To ensure certainty on the part of all parties regarding the status of all Project approvals and resolutions pending adoption of this Ordinance, the City Council formally rescinded approval of Ordinance No. 1886, regarding the Council's prior approval of the PDD, and Resolution No. 23899, regarding the Council's prior approval of the MAJ and the CUPs on May 3, 2017. SECTION 11. The environmental assessment prepared and approved pursuant to and in accord with the California Environmental Quality Act in conjunction with the Project is the controlling environmental assessment for purposes of this Ordinance. Resolution 23898, which adopted the mitigated negative declaration for the GPA for this Project, was not formally rescinded on May 3, 2017. The only defect in this environmental assessment, per the Court's ruling issued in relation to the Writ, was the City's parking analysis related to the "event space." Although the Writ set aside the City's approval of that assessment, the analysis contained therein, complemented by this Ordinance's clarification that the event area/space is no longer a part of the Project, supports the recommended action. SECTION 12. Concurrent with this Ordinance, the City Council adopts a Resolution effective immediately and consistent herewith. The City Attorney and City Clerk are hereby directed to take all necessary action to ensure the City's timely compliance with the Writ, including without limitation the filing of a Return to the Writ, explaining the City's action(s) taken to comply with the terms of the Writ. SECTION 13. The City Council hereby re-approves Planned Development District 374 in lieu of zone change, subject to the conditions of approval contained in Exhibit "A" to Ordinance 1866 and now again to this Ordinance, said conditions of Ordinance No. Page 6 approval being attached to and incorporated herein by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space" as a part of the approved Project. SECTION 14. Moreover and based upon the foregoing, (i) an additional condition shall be placed upon this approval of Planned Development District 374 which expressly requires that the "event area," also referenced in the Writ and from time to time in relation to the Project as the "event space," is eliminated from PDD-374, and (H) given that additional condition, the approval of PDD-374 and all related approvals and resolutions, including without limitation Ordinance No. 1886 and Resolution No. 23899, adopted arising from and related to the Project are hereby reinstated and affirmed in their entirety. SECTION 15. The City Council approves the zone map change from C-1/PDD 104 to PDD 374 for the 1.13 acre parcel at 750 North Palm Canyon Drive (APN: 505-303-018). SECTION 16. If any section, subsection, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Palm Springs, hereby declares that it would have passed this Ordinance and each section of subsection, sentence, clause and phrase thereof, irrespective of the clauses or phrases being declared invalid. SECTION 17. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same, or a summary thereof, to be published and posted pursuant to the provisions of law and this Ordinance shall take effect thirty (30) days after its adoption on second reading. PASSED, APPROVED, AND ADOPTED BY THE PALM SPRINGS CITY COUNCIL THIS 5th DAY OF JULY, 2017. ROBERT MOON, MAYOR ATTEST: KATHLEEN D. HART, INTERIM CITY CLERK RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA,AFFIRMING APPROVAL OF A MAJOR ARCHITECTURAL APPLICATION AND CONDITIONAL USE PERMITS (CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ). THE CITY COUNCIL OF THE CITY OF PALM SPRINGS FINDS AND DETERMINES AS FOLLOWS: A. In 2014, 750 Lofts, LLC a California limited liability company applied for approval of Planned Development District PD-374, General Plan Amendment, Conditional Use Permit and Major Architectural Application(alternatively the"Entitlements," and/or the "Project")in order to construct a 39 room hotel on 1.13 acres of property located at 750 N. Palm Canyon Drive, Palm Springs(the"Property"). B. The Property, while itself not a historic structure, is located within the Las Palmas Business Historic District. On October 12,2014, the Historic Site Preservation Board ("HSPB")reviewed the General Plan Amendment("GPA"), Conditional Use Permit ("CUP"), and Planned Development District("PDD")for the original project application which, at that time, included a hotel with forty-six(46)rooms, sixty-two(62)parking spaces and a maximum height of fifty feet(50'),with lower heights at the street frontages. The HSPB approved the original project subject to certain conditions, one of which required that the Major Architectural Application("MAX)come back to the HSPB for review. C. The Project, including the MAJ,was brought back to the HSPB on January 13, 2015, and at that time, the HSPB approved the Project subject to conditions requiring reductions in building height, limitations on rooftop structures, and a requirement that the parking study be reviewed by the City Engineer for adequacy of off street parking such that the Project would not adversely impact the historic district. D. The Project was revised in an effort to respond to the HSPB conditions, resulting in a hotel of only thirty-nine(39)rooms, thereby reducing room count by seven (7), and reducing some building heights. E. An initial study was prepared for the Project pursuant to the California Environmental Quality Act("CEQA"), and was circulated for a twenty(20)day period from February 6, 2015 to February 25, 2015. With the revisions to the Project prompted by the HSPB review, the initial study was revised and re-circulated for public comment from June 29,2015 to July 20, 2015. Resolution No. Page 2 F. On June 24, 2015, July 22, 2015, and August 12, 2015 the Planning Commission conducted a public hearing and reviewed the project. At its August 12, 2015 meeting, the Planning Commission recommended that the Project be approved subject to the conditions of approval. G. On September 16, 2015, the City Council held a public hearing and, after taking public testimony, approved the Project, including the GPA, PDD, CUP, MAJ and Mitigated Negative Declaration and deleted HSPB conditions 1, 2 and 3. H. On October 23, 2015,Advocates for Better Community Development filed a Petition for Writ of Mandate(the "Petition"), seeking to compel the City to rescind its approval of the Entitlements. I. In adjudicating the Petition, the Court heard three(3) basic arguments: (a)that the City Council abused its discretion when it deleted the HSPB conditions without sending the Project back to the HSPB, (b)that the City violated its municipal code for approving the Project without considering the parking requirements for the"event space", and (c)that the approval of the Project was"spot zoning." J. The Court denied the Petition as to the claim that the City Council abused its discretion in deleting the HSPB conditions and it found nothing in the municipal code that requires the Council to refer the revised Project back to the HSPB. K. The Court also denied the Petition as to the claim of spot zoning,finding that no spot zoning occurred as no"island"was created, and the Court further found that even if it had been spot zoning, such zoning was in the public interest as it provided tourist accommodations and revitalized Indian Avenue. L. The Court, however, granted the Petition as to the issue of parking, and on April 6, 2017, issued a"Peremptory Writ of Mandate'(the"Writ")to the City.The Writ requires neither more nor less than that the City set aside its approvals of the Entitlements until such time as the City adequately addresses all parking issues, including event space parking, as required by the City's Municipal Code. M. On May 3, 2017, the Council took affirmative preliminary action, making no findings, but rescinding Ordinance No. 1886(the past approval of the PDD), Resolution No. 23899(the past approval of the MAJ and the CUP) by minute action, and directing staff to schedule a public hearing in this matter. N. Staff first issued and gave proper notice of a public hearing to take place on May 17, 2017, then re-noticed this public hearing for June 7, 2017, and then continued, after being opened and properly adjourned until June 21, 2017. Resolution No. Page 3 O. At the public hearing in this matter, the City Council considered a report and a supplemental report from its staff, inclusive of the entire City Council staff report considered on September 16, 2015 inclusive of all attachments, and a true and correct copy of the Writ; in addition, the Council received any and all written or oral testimony offered, and deliberated upon its intended action with respect to the Entitlements. P. The public hearing concluded on June 21, 2017, and the City Council instructed staff to present this case to them for a final decision upon the precise manner in which it would comply with the Court's Writ on July 5, 2017. Q. The City Council has carefully, and independently reviewed and considered all of the evidence presented in connection with this public hearing, including but not limited to the staff report and all written and oral testimony presented and has reviewed and considered the Initial Study and Mitigated Negative Declaration as approved pursuant to Resolution No. 23898. R. Given the scope and nature of the Court's Writ, the Council has determined that this matter does not require further consideration by the HSPB or the Planning Commission, and that the Council can and should take independent action at this juncture consistent with restoration and affirmation of Ordinance No. 1886(the Council's past approval of the PDD), Resolution No. 23899 (the Council's past approval of the MAJ and the CUP)in a manner consistent with the Writ. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The true and correct recitals above, inclusive of all definitions, are incorporated by this reference herein as the factual basis for this Resolution. The Deleted:ommaoce Council adopts this Resolution in compliance with "Peremptory Writ of Mandate" issued oeietea:od�a� a j by the Superior Court of the State of California to the City on April 6, 2017. SECTION 2. The list of permitted uses and development standards reflected in the Project's conditions of approval did not contain the"event space." Regardless of the terms and conditions of approval, and independent of whether the parking study in support of the Project referenced or included the"event space,"that space was not removed from the Project plans prior to Council approval of the Project, and ambiguity existed in the administrative record as to whether the Project included the event space. SECTION 3. With the elimination of the event area,the Project consists of a thirty-nine (39)room hotel, a one hundred thirteen(113) seat restaurant on Palm Canyon Drive, a thirty-nine(39)seat lounge on Indian Canyon, and a twenty(20)seat roof top lounge. SECTION 4. Palm Springs Municipal Code("PSMC")Section 93.060.00(16)requires one (1)parking space for each hotel room in any hotel having less than fifty(50)rooms. Resolution No. Page 4 SECTION 5. PSMC Section 93.060.00(30)one(1) parking space for every three(3) seats in restaurants and lounges. SECTION 6. Given the PSMC requirements, the parking requirement for the Project includes thirty-nine(39)spaces for the hotel and fifty-eight(58)spaces for the restaurant and lounges,for a total parking requirement ninety-seven (97)spaces. SECTION 7. The Project plans as approved will provide for a total of one hundred eight (108)spaces, thirty-four(34)of which will be on-site valet spaces. The Project is conditioned to provide valet service at all times. SECTION 8. Condition of Approval number ADM 15 provides that any deviation from the number of restaurant or lounge seats shall require prior approval by the Director of Planning by means of an amendment to the use permit associated with each use, thereby assuring that the City retains control to enforce Project compliance with the PSMC as to parking. SECTION 9. An independent traffic engineer reviewed the Project's parking requirements exclusive of the event area, and found that based on the PSMC and the widely accepted and used Urban Land Institute shared parking methodology, the forecast shared parking demand for the Project can be accommodated by the one hundred eight(108)off-street parking spaces in the Project. SECTION 10. Since the issuance of the Writ and pending the City of Palm Springs' adoption of this JZesolution, all Project approvals have been and remained effectively — Deleted:ordinance "set aside."As such, the City has neither processed nor issued any Project permits. To ensure certainty on the part of all parties regarding the status of all Project approvals and resolutions pending adoption of this Resolution, the City Council formally rescinded approval of Ordinance No. 1886, regarding the Council's prior approval of the PDD, and Resolution No. 23899, regarding the Council's prior approval of the MAJ and the CUPs on May 3, 2017. SECTION 11. The environmental assessment prepared and approved pursuant to and in accord with the California Environmental Quality Act in conjunction with the Project is the controlling environmental assessment for purposes of this Resolution. Resolution Deleted:0fdmance 23898,which adopted the mitigated negative declaration for the GPA for this Project, was not formally rescinded on May 3, 2017. The only defect in this environmental assessment, per the Court's ruling issued in relation to the Writ,was the City's parking analysis related to the"event space"Although the Writ set aside the City's approval of that assessment, the analysis contained therein, complemented by this Resolution's {Deleted:ommance clarification that the event arealspace is no longer a part of the Project, supports the recommended action. Resolution No. Page 5 SECTION 12.This Resolution shall be effective immediately upon its adoption. The City Attorney and City Clerk are hereby directed to take all necessary action to ensure the City's timely compliance with the Writ, including without limitation the filing of a Return to the Writ, explaining the City's action(s)taken to comply with the terms of the Writ. SECTION 13. If any section, subsection, clause or phrase of this Resolution is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Resolution. The City Council of the City of Palm Springs, hereby declares that it would have passed this Resolution and each section of subsection, sentence, clause and phrase thereof, irrespective of the clauses or phrases being declared invalid. SECTION 14. The City Council hereby re-approves a Conditional Use Permit for the cocktail lounge use, the spa use, and for hotels with kitchen facilities in more than 10% of the rooms, and consistent with the requirements of Section 94.02.00 of the Palm Springs Zoning Code(PSZC), re-states and affirms the factual findings set forth in Section 1 of Resolution 23899, originally approved on September 16, 2015, attached hereto as Exhibit"A,"and incorporated by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the"event space" as a part of the approved Project. SECTION 15. The City Council hereby re-approves a Conditional Use Permit for a high-rise building, and consistent with the requirements of Section 94.02.00 of the PSZC, re-states and affirms the factual findings set forth in Section 2 of Resolution 23899, originally approved on September 16, 2015, attached hereto as Exhibit"A," and incorporated by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the"event space"as a part of the approved Project. SECTION 16. The City Council hereby notes again, as it did in Resolution 23899, that following review by the Historic Site Preservation Board (HSPB), on June 15, 2015, the Project applicant submitted revised plans that reduce the building's overall height and massing. The Council further notes that as compared to the proposal reviewed by the HSPB, the revised plans reduced the height of the building on the Palm Canyon frontage from 32'-0"to 31'-0". Further, the Council notes that the height of the building at the Indian Canyon frontage has been reduced from a range of 32'-0"to 35'-0", and now varies between 29'-3"to 34'-0"in height. Resolution No. Page 6 SECTION 17. The CityCouncil specifically rejects, removes, and strikes from the P Y 1 approvals of the Entitlements the first two(2)full sentences of the second paragraph of Section 3 of Resolution 23899 which reference the "event space" removed from the Project pursuant to and consistent with this Resolution. SECTION 18. The City Council hereby notes again, as it did in Resolution 23899, that the pool area has been moved inward, and is now 30'from the building's edge on Indian Canyon Drive. Further, the third story,which was proposed for hotel rooms in the applicant's prior submittal, has been removed and will now be utilized as a mezzanine balcony. SECTION 19. The City Council finds again, as it did in Resolution 23899,that the HSPB concerns relating to building height and massing were adequately addressed by the June 15, 2015 plan submittal.Additionally, the City Council finds again that the proposed development, has been sensitively designed within the context of the Las Palmas Business Historic District, and is in general conformance within the Design Guidelines established for the Las Palmas Business Historic District. As it did in approving Resolution 23899, the City Council again deletes Conditions No. 1, No. 2, and No. 3 of the Certificate of Approval recommended by the HSPB at its January 13, 2015 meeting, which conditions imposed a maximum overall building height of 34 feet, a maximum building height of 20 feet as measured at the closest setback to the Indian Canyon Drive frontage, and a limitation on any additional shade structures on the 4th floor roof deck. SECTION 20. The City Council hereby re-approves the Major Architectural Application and, consistent with the requirements of Section 94.04.00(D)of the PSZC, re-states and affirms the factual findings set forth in Section 4 of Resolution 23899, originally approved on September 16, 2015, attached hereto as Exhibit"A," and incorporated by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the"event space"as a part of the approved Project. SECTION 21. The City Council of the City of Palm Springs hereby re-approves Case 5.1350 PDD 374/GPA/CUP/3.3795 MAJ, subject to conditions of approval outlined in Exhibit"A"except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the"event space"as a part of the approved Project. Resolution No. Page 7 SECTION 22. Moreover and based upon the foregoing, (i)an additional condition shall be placed upon the Conditional Use Permits and the Major Architectural Application which expressly requires that the"event area,"also referenced in the Writ and from time to time in relation to the Project as the"event space," is eliminated from Case 5.1350 PDD 374/GPA/CUP/3.3795 MAJ, and that(H)subject to that change, the approval of Case 5.1350 PDD 374/GPA/CUP/3.3795 MAJ and all related approvals and resolutions, including without limitation Ordinance No. 1886 and Resolution No. 23899, adopted arising from and related to the Project are hereby reinstated and affirmed in their entirety. ADOPTED this 51"day of July, 2017. David H. Ready, City Manager ATTEST: Kathleen Hart, Interim City Clerk CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, Kathleen Hart, Interim City Clerk of the City of Palm Springs, hereby certify that Resolution No. _ is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on by the following vote AYES: NOES: ABSENT: ABSTAIN: Kathleen D. Hart, Interim City Clerk City of Palm Springs, California RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AFFIRMING APPROVAL OF A MAJOR ARCHITECTURAL APPLICATION AND CONDITIONAL USE PERMITS (CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ). THE CITY COUNCIL OF THE CITY OF PALM SPRINGS FINDS AND DETERMINES AS FOLLOWS: A. In 2014, 750 Lofts, LLC a California limited liability company applied for approval of Planned Development District PD-374, General Plan Amendment, Conditional Use Permit and Major Architectural Application (alternatively the "Entitlements," and/or the "Project") in order to construct a 39 room hotel on 1.13 acres of property located at 750 N. Palm Canyon Drive, Palm Springs (the "Property"). B. The Property, while itself not a historic structure, is located within the Las Palmas Business Historic District. On October 12, 2014, the Historic Site Preservation Board ("HSPB") reviewed the General Plan Amendment ("GPA"), Conditional Use Permit ("CUP"), and Planned Development District ("PDD") for the original project application which, at that time, included a hotel with forty-six (46) rooms, sixty-two (62) parking spaces and a maximum height of fifty feet (50'), with lower heights at the street frontages. The HSPB approved the original project subject to certain conditions, one of which required that the Major Architectural Application ("MAX) come back to the HSPB for review. C. The Project, including the MAJ, was brought back to the HSPB on January 13, 2015, and at that time, the HSPB approved the Project subject to conditions requiring reductions in building height, limitations on rooftop structures, and a requirement that the parking study be reviewed by the City Engineer for adequacy of off street parking such that the Project would not adversely impact the historic district. D. The Project was revised in an effort to respond to the HSPB conditions, resulting in a hotel of only thirty-nine (39) rooms, thereby reducing room count by seven (7), and reducing some building heights. E. An initial study was prepared for the Project pursuant to the California Environmental Quality Act ("CEQA"), and was circulated for a twenty (20) day period from February 6, 2015 to February 25, 2015. With the revisions to the Project prompted by the HSPB review, the initial study was revised and re-circulated for public comment from June 29, 2015 to July 20, 2015. Resolution No. Page 2 F. On June 24, 2015, July 22, 2015, and August 12, 2015 the Planning Commission conducted a public hearing and reviewed the project. At its August 12, 2015 meeting, the Planning Commission recommended that the Project be approved subject to the conditions of approval. G. On September 16, 2015, the City Council held a public hearing and, after taking public testimony, approved the Project, including the GPA, PDD, CUP, MAJ and Mitigated Negative Declaration and deleted HSPB conditions 1, 2 and 3. H. On October 23, 2015, Advocates for Better Community Development filed a Petition for Writ of Mandate (the "Petition"), seeking to compel the City to rescind its approval of the Entitlements. I. In adjudicating the Petition, the Court heard three (3) basic arguments: (a) that the City Council abused its discretion when it deleted the HSPB conditions without sending the Project back to the RSPB, (b) that the City violated its municipal code for approving the Project without considering the parking requirements for the "event space', and (c) that the approval of the Project was "spot zoning." J. The Court denied the Petition as to the claim that the City Council abused its discretion in deleting the HSPB conditions and it found nothing in the municipal code that requires the Council to refer the revised Project back to the HSPB. K. The Court also denied the Petition as to the claim of spot zoning, finding that no spot zoning occurred as no "island" was created, and the Court further found that even if it had been spot zoning, such zoning was in the public interest as it provided tourist accommodations and revitalized Indian Avenue. L. The Court, however, granted the Petition as to the issue of parking, and on April 6, 2017, issued a 'Peremptory Writ of Mandate" (the "Writ') to the City. The Writ requires neither more nor less than that the City set aside its approvals of the Entitlements until such time as the City adequately addresses all parking issues, including event space parking, as required by the City's Municipal Code. M. On May 3, 2017, the Council took affirmative preliminary action, making no findings, but rescinding Ordinance No. 1886 (the past approval of the PDD), Resolution No. 23899 (the past approval of the MAJ and the CUP) by minute action, and directing staff to schedule a public hearing in this matter. N. Staff first issued and gave proper notice of a public hearing to take place on May 17, 2017, then re-noticed this public hearing for June 7, 2017, and then continued, after being opened and properly adjourned until June 21, 2017. Resolution No. Page 3 O. At the public hearing in this matter, the City Council considered a report and a supplemental report from its staff, inclusive of the entire City Council staff report considered on September 16, 2015 inclusive of all attachments, and a true and correct copy of the Writ; in addition, the Council received any and all written or oral testimony offered, and deliberated upon its intended action with respect to the Entitlements. P. The public hearing concluded on June 21, 2017, and the City Council instructed staff to present this case to them for a final decision upon the precise manner in which it would comply with the Court's Writ on July 5, 2017. Q. The City Council has carefully, and independently reviewed and considered all of the evidence presented in connection with this public hearing, including but not limited to the staff report and all written and oral testimony presented and has reviewed and considered the Initial Study and Mitigated Negative Declaration as approved pursuant to Resolution No. 23898. R. Given the scope and nature of the Court's Writ, the Council has determined that this matter does not require further consideration by the HSPB or the Planning Commission, and that the Council can and should take independent action at this juncture consistent with restoration and affirmation of Ordinance No. 1886 (the Council's past approval of the PDD), Resolution No. 23899 (the Council's past approval of the MAJ and the CUP) in a manner consistent with the Writ. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The true and correct recitals above, inclusive of all definitions, are incorporated by this reference herein as the factual basis for this Resolution. The Council adopts this Resolution in compliance with "Peremptory Writ of Mandate" issued by the Superior Court of the State of California to the City on April 6, 2017. SECTION 2. The list of permitted uses and development standards reflected in the Project's conditions of approval did not contain the "event space." Regardless of the terms and conditions of approval, and independent of whether the parking study in support of the Project referenced or included the "event space," that space was not removed from the Project plans prior to Council approval of the Project, and ambiguity existed in the administrative record as to whether the Project included the event space. SECTION 3. With the elimination of the event area, the Project consists of a thirty-nine (39) room hotel, a one hundred thirteen (113) seat restaurant on Palm Canyon Drive, a thirty-nine (39) seat lounge on Indian Canyon, and a twenty (20) seat roof top lounge. SECTION 4. Palm Springs Municipal Code ("PSMC") Section 93.060.00(16) requires one (1) parking space for each hotel room in any hotel having less than fifty (50) rooms. Resolution No. Page 4 SECTION 5. PSMC Section 93.060.00(30) one (1) parking space for every three (3) seats in restaurants and lounges. SECTION 6. Given the PSMC requirements, the parking requirement for the Project includes thirty-nine (39) spaces for the hotel and fifty-eight (58) spaces for the restaurant and lounges, for a total parking requirement ninety-seven (97) spaces. SECTION 7. The Project plans as approved will provide for a total of one hundred eight (108) spaces, thirty-four (34) of which will be on-site valet spaces. The Project is conditioned to provide valet service at all times. SECTION 8. Condition of Approval number ADM 15 provides that any deviation from the number of restaurant or lounge seats shall require prior approval by the Director of Planning by means of an amendment to the use permit associated with each use, thereby assuring that the City retains control to enforce Project compliance with the PSMC as to parking. SECTION 9. An independent traffic engineer reviewed the Project's parking requirements exclusive of the event area, and found that based on the PSMC and the widely accepted and used Urban Land Institute shared parking methodology, the forecast shared parking demand for the Project can be accommodated by the one hundred eight (108) off-street parking spaces in the Project. SECTION 10. Since the issuance of the Writ and pending the City of Palm Springs' adoption of this Resolution, all Project approvals have been and remained effectively "set aside." As such, the City has neither processed nor issued any Project permits. To ensure certainty on the part of all parties regarding the status of all Project approvals and resolutions pending adoption of this Resolution, the City Council formally rescinded approval of Ordinance No. 1886, regarding the Council's prior approval of the PDD, and Resolution No. 23899, regarding the Council's prior approval of the MAJ and the CUPs on May 3, 2017. SECTION 11. The environmental assessment prepared and approved pursuant to and in accord with the California Environmental Quality Act in conjunction with the Project is the controlling environmental assessment for purposes of this Resolution. Resolution 23898, which adopted the mitigated negative declaration for the GPA for this Project, was not formally rescinded on May 3, 2017. The only defect in this environmental assessment, per the Court's ruling issued in relation to the Writ, was the City's parking analysis related to the "event space." Although the Writ set aside the City's approval of that assessment, the analysis contained therein, complemented by this Resolution's clarification that the event area/space is no longer a part of the Project, supports the recommended action. Resolution No. Page 5 SECTION 12. This Resolution shall be effective immediately upon its adoption. The City Attorney and City Clerk are hereby directed to take all necessary action to ensure the City's timely compliance with the Writ, including without limitation the filing of a Return to the Writ, explaining the City's action(s) taken to comply with the terms of the Writ. SECTION 13. If any section, subsection, clause or phrase of this Resolution is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Resolution. The City Council of the City of Palm Springs, hereby declares that it would have passed this Resolution and each section of subsection, sentence, clause and phrase thereof, irrespective of the clauses or phrases being declared invalid. SECTION 14. The City Council hereby re-approves a Conditional Use Permit for the cocktail lounge use, the spa use, and for hotels with kitchen facilities in more than 10% of the rooms, and consistent with the requirements of Section 94.02.00 of the Palm Springs Zoning Code (PSZC), re-states and affirms the factual findings set forth in Section 1 of Resolution 23899, originally approved on September 16, 2015, attached hereto as Exhibit "A," and incorporated by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space" as a part of the approved Project. SECTION 15. The City Council hereby re-approves a Conditional Use Permit for a high-rise building, and consistent with the requirements of Section 94.02.00 of the PSZC, re-states and affirms the factual findings set forth in Section 2 of Resolution 23899, originally approved on September 16, 2015, attached hereto as Exhibit "A," and incorporated by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space' as a part of the approved Project. SECTION 16. The City Council hereby notes again, as it did in Resolution 23899, that following review by the Historic Site Preservation Board (HSPB), on June 15, 2015, the Project applicant submitted revised plans that reduce the building's overall height and massing. The Council further notes that as compared to the proposal reviewed by the HSPB, the revised plans reduced the height of the building on the Palm Canyon frontage from 32'-0" to 31'-0". Further, the Council notes that the height of the building at the Indian Canyon frontage has been reduced from a range of 32'-0" to 35'-0", and now varies between 29'-Y to 34'-0" in height. Resolution No. Page 6 SECTION 17. The City Council specifically rejects, removes, and strikes from the approvals of the Entitlements the first two (2)full sentences of the second paragraph of Section 3 of Resolution 23899 which reference the "event space' removed from the Project pursuant to and consistent with this Resolution. SECTION 18. The City Council hereby notes again, as it did in Resolution 23899, that the pool area has been moved inward, and is now 30' from the building's edge on Indian Canyon Drive. Further, the third story, which was proposed for hotel rooms in the applicant's prior submittal, has been removed and will now be utilized as a mezzanine balcony. SECTION 19. The City Council finds again, as it did in Resolution 23899, that the HSPB concerns relating to building height and massing were adequately addressed by the June 15, 2015 plan submittal. Additionally, the City Council finds again that the proposed development, has been sensitively designed within the context of the Las Palmas Business Historic District, and is in general conformance within the Design Guidelines established for the Las Palmas Business Historic District. As it did in approving Resolution 23899, the City Council again deletes Conditions No. 1, No. 2, and No. 3 of the Certificate of Approval recommended by the HSPB at its January 13, 2015 meeting, which conditions imposed a maximum overall building height of 34 feet, a maximum building height of 20 feet as measured at the closest setback to the Indian Canyon Drive frontage, and a limitation on any additional shade structures on the 4th floor roof deck. SECTION 20. The City Council hereby re-approves the Major Architectural Application and, consistent with the requirements of Section 94.04.00(D) of the PSZC, re-states and affirms the factual findings set forth in Section 4 of Resolution 23899, originally approved on September 16, 2015, attached hereto as Exhibit "A," and incorporated by this reference herein, except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space" as a part of the approved Project. SECTION 21. The City Council of the City of Palm Springs hereby re-approves Case 5.1350 PDD 374/GPA/CUP/3.3795 MAJ, subject to conditions of approval outlined in Exhibit "A" except as inconsistent with the Court's Writ of Mandate and/or herewith, i.e., this re-approval excludes any terms, conditions, plans, or other document in the administrative record of the Entitlements that might reasonably be deemed to include the "event space' as a part of the approved Project. Resolution No. Page 7 SECTION 22. Moreover and based upon the foregoing, (i) an additional condition shall be placed upon the Conditional Use Permits and the Major Architectural Application which expressly requires that the "event area," also referenced in the Writ and from time to time in relation to the Project as the "event space," is eliminated from Case 5.1350 PDD 374/GPA/CUP/3.3795 MAJ, and that (if) subject to that change, the approval of Case 5.1350 PDD 374/GPA/CUP/3.3795 MAJ and all related approvals and resolutions, including without limitation Ordinance No. 1886 and Resolution No. 23899, adopted arising from and related to the Project are hereby reinstated and affirmed in their entirety. ADOPTED this 51h day of July, 2017. David H. Ready, City Manager ATTEST: Kathleen Hart, Interim City Clerk CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, Kathleen Hart, Interim City Clerk of the City of Palm Springs, hereby certify that Resolution No. is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on by the following vote: AYES: NOES: ABSENT: ABSTAIN: Kathleen D. Hart, Interim City Clerk City of Palm Springs, California Terri Milton From: Judy Deertrack <judydeertrack@gmaiLcom> Sent: Wednesday,July 05, 2017 5:18 PM To: David Ready; Edward Kotkin; Flinn Fagg; Robert Moon; CityClerk; Geoff Kors; Ginny Foat; Chris Mills;JR Roberts Subject: 750 LOFTS/ PUBLIC COMMENTARY Attachments: 2017.07.05 CCSR D1 Comment Ltr J.Deertrack 750 Lofts.pdf To the City Clerk City of Palm Springs Re: Item D.1. 750 Lofts Please accept the following letter for the record. Thank you. Judy Deertrack t Terri Milton From: Judy Deertrack <judydeertrack@gmail.com> Sent: Wednesday,July 05, 2017 5:18 PM To: David Ready; Edward Kotkin; Flinn Fagg; Robert Moon; CityClerk; Geoff Kors; Ginny Foat; Chris Mills;JR Roberts Subject: 750 LOFTS/PUBLIC COMMENTARY Attachments: 2017.07.05 CCSR D1 Comment Ltr J.Deertrack 750 Lofts.pdf To the City Clerk City of Palm Springs Re: Item D.1. 750 Lofts Please accept the following letter for the record. Thank you. Judy Deertrack i Judy Deertrack 1333 South Belardo Road, Apt 510 Palm Springs, CA 92264 Wednesday, July 5, 2017 To the City Council Palm Springs, California RE: D.I. A PROPOSED RESOLUTION COMPLYING WITH WRIT OF MANDATE, REQUIRING ELIMINATION OF THE EVENT AREA FROM PLANNED DEVELOPMENT DISTRICT (PDD) 374, THE "750 LOFTS" PROJECT LOCATED AT 750 N. PALM CANYON DRIVE, CONFIRMING CONFORMITY WITH THE CITY'S MUNICIPAL CODE WITH REGARD TO PARKING, AND OTHERWISE AFFIRMING APPROVAL OF PDD 374, INTRODUCTION OF A RELATED ORDINANCE AFFIRMING APPROVAL OF PDD 374, AND A RELATED RESOLUTION AFFIRMING APPROVAL OF A MAJOR ARCHITECTURAL APPLICATION AND CONDITIONAL USE PERMITS: RECOMMENDATION: Take one of the following actions: 1) Approve the "750 Lofts" project as follows: a. Adopt Resolution No. , "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, COMPLYING WITH WRIT OF MANDATE, REQUIRING ELIMINATION OF THE EVENT AREA FROM PLANNED DEVELOPMENT DISTRICT(PDD) 374, THE 750 LOFTS" PROJECT LOCATED AT 750 N. PALM CANYON DRIVE, CONFIRMING CONFORMITY WITH THE PALM SPRINGS MUNICIPAL CODE WITH REGARD TO PARKING, AND OTHERWISE AFFIRMING APPROVAL OF PDD 374." b. Waive the reading of text in its entirety, read by title only, and introduce for first reading Ordinance No. _, "AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AFFIRMING APPROVAL OF PLANNED DEVELOPMENT DISTRICT (PDD) 374 (CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ)."c. Adopt Resolution No. , "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AFFIRMING APPROVAL OF A MAJOR ARCHITECTURAL APPLICATION AND CONDITIONAL USE PERMITS (CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ)--2) Reject the 750 Lofts" project as follows: Affirm the May 3, 2017, rescission of the PDD (Ordinance No. 1886), and the MAJ and CUPS (Resolution No. 23899). Rescind Resolution No. 23898 adopting the mitigated negative declaration ("MND") for this project, and Resolution No. 23900 approving the general plan amendment ("GPA") for this project. 3) Determine that the Council lacks sufficient information to decide whether to approve or deny the 750 Lofts" project at this time, and send the project, or a portion thereof, to the Historic Site Preservation Board and/or Planning Commission for further consideration with direction from the Council. 4) Express an intent to approve the 750 Lofts" project including the event space, but resolving all parking issues under the Palm Springs Municipal Code via a modification as to the scope and nature of the project as newly approved, e.g., a decision to approve the project with fewer hotel rooms, fewer seats in the restaurant and lounges, etc. 5) Express an intent to approve the "750 Lofts" project inclusive of the event space as per Alternative No. 4, but with the addition or removal of specific conditions of approval. 6) Express an intent to approve the 750 Lofts" project excluding the event space, but with the addition or removal of specific conditions of approval. To the City Council: (1) POTENTIAL BROWN ACT VIOLATION IN THE DENIAL OF A PUBLIC HEARING AND RIGHT TO TESTIFY ON NEW MATTERS UNDER ITEM DA. "DEFERRED ITEMS FROM PREVIOUS CALENDAR:" On May 3, 2017, the City Council, for the first time since the court's decision on 750 Lofts, considered how to comply with the return on the Writ of Mandate, wherein the Superior Court had directed the City to comply with their ordinance and laws, with a finding that the 750 Lofts Project, as approved, did not comply with the City's Ordinances and parking requirements. City Attorney Doug Holland, on May Td, advised the City Council they had options and could either deny the project, re-open the project for de novo review, or choose to eliminate the fourth floor event center. This discussion is reflected in the taped video and in the Action Summary. On June 22, 2017, the Minutes of that Hearing had not yet been transcribed. The City Council, on May 3`d, introduced a Motion to Rescind Planned Development District (PDD) Permit # 374; the Conditional Use Permit (PDD) for PDD #374, and the Architectural Advisory Permit for PDD #374. The matter was acted upon, and the City Council effectively voted and rescinded the three permits, and left the General Plan Amendment (GPA) intact. The Action Summary of the Hearing reflects the rescission and vacating of the permits. The matter was continued to June 21s', 2017, for appropriate action in complying with the court order. On June 21, 2017, the City Council reconvened and took public testimony on Item 2C as a public hearing. The scope of that hearing was again the City's response to the Superior Court Return on the Writ of Mandate for inadequate parking for 750 Lofts, and the options of how to respond. At that hearing, City Council representative Ginny Foat immediately expressed her discomfort and confusion that a Supplemental Staff Report with new material and new options was released to the City Council only on the afternoon of the 2 hearing (and never to the public), expressing that she had not had a chance to review the document and its newly presented options for City Council Action, and did not have an adequate record in front of her to make any decision, and was confused on how they could possibly approve the project, or what they were even supposed to be doing. On that date, four out of five of the sitting City Council members were new and were not the City Council members who had approved the 750 Lofts Project in September 2015. On June 21s`, members of the public did not have meaningful access to the staff report changes that gave a whole new range of options, and were denied the opportunity to comment. Now, at this July 5th hearing, the right to comment on the range of options and their implications is completely denied because the public hearing has been "closed" and set on the "Deferred Item" Agenda. This denial of a right to set the administrative record of review is a denial of the public's fundamental right to respond to a full and complete record before public testimony terminates. (2) POTENTIAL BROWN ACT VIOLATION IN DENIAL OF FAIR HEARING RIGHTS FROM UNREASONABLY LIMITING PUBLIC TESTIMONY TO TWO MINUTES ON JUNE 21. 2017, AND ELIMINATING PUBLIC TESTIMONY ALTOGETHER ON JULY 5, 2017: On June 21, 2017, the public had 72 hours under the Brown Act, on the publication of the Agenda, to respond to the Agenda description, proposed Action Items, Staff Report, analysis, proposed Resolutions for Action, and attached documentation. What was NOT present and available to the public within that entire 72 hours up and through the hearing was meaningful access to a Supplemental Staff Report that had introduced a whole new range of Action Items and had significantly changed the wording and proposals of the Project Resolutions. Therefore, the testimony from June 21" was incomplete. The action on the July 5, 2017, Agenda for 750 Lofts has closed the public testimony, and has eliminated the public's opportunity to respond at any point on the administrative record to the Supplemental Staff Report. This is a denial of fair hearing rights and of Brown Act rights. To exacerbate this damage, the City has recently enacted an unreasonable and detrimental two-minute time limit on public testimony at public hearings. These matters (as you can see from this letter) are extremely complex, and often there is new information presented at the hearing itself by the developer and/or the City Council that results in the need to present orally, because written statements are already submitted. There is no other jurisdiction in the Coachella Valley that has a two-minute limitation. I can find no other jurisdiction in California that has a two-minute speaking limitation. And yet these meetings go until midnight and 2:OOAM because of the prolific comments of the City Council itself. In all fairness, the balance of comments should result in the public having a reasonable time to rebut the wide-ranging positions of the City Council -- it is a matter of fairness and respect— but also a matter of allowing a proper record of the decision. (3) POTENTIAL VIOLATION OF STATE LAW AND LOCAL LAW ON DUE PROCESS BY IMPROPERLY PROPOSING THE CITY COUNCIL ACTIVATE A SERIES OF RESCINDED PERMITS FROM THE ACTIONS TAKEN BY CITY COUNCIL ON 750 LOFTS ON THE DATE OF JUNE 21, 2017 WITHOUT FOLLOWING LOCAL ORDINANCES AND LAWS ON THE APPROVAL OF PDD'S, CONDITIONAL USE PERMITS, AND ARCHITECTURAL PERMITS: Agenda Action Item for ITEM D.1. contains an option for consideration and approval by the City Council to: "2) Reject the 750 Lofts" project as follows: Affirm the May 3, 2017, rescission of the PDD (Ordinance No. 1886), and the MAJ and CUPS (Resolution No. 23899)." The Agenda then gives a full range of alternative options, such as: "4) Express an intent to approve the "750 Lofts" project including the event space, but resolving all parking issues........ (See also Recommendation Items 5 and 6.) On June 21, 2017, the City Council voted effectively to rescind the 750 Lofts PDD, Conditional Use Permit, and Architectural Permits. The City Council had options, but this was their choice. A rescission voids a permit. A void permit, to my knowledge, cannot be re-activated unless the City has an ordinance or procedure that makes provision for such re-activation, and I can find nothing in the City's laws and ordinances that pertains. Given the rescission (voiding) of the permits, the only due process option available to the City is to properly follow its laws and ordinances on the processing of a PDD (Ordinance 94.03.00), a Conditional Use Permit (Ordinance 94.02.00) and an Architectural Permit (Ordinance 94.04.00). None of these ordinances contain a procedure for re-activating a permit once it has been acted upon and rescinded by the City Council. A dead horse is a dead horse. 3 Also, the language of the Agenda at Recommendation #2 that states or infers there is an OPTION to either ,.affirm or reject" the May 3, 2017, "rescission" is incorrect and misleading the City Council, The City Council does not need to affirm a rescission, because "rescission" is final. A rescission (voiding a permit) does not need a second and supplemental affirmation, and there is nothing in the ordinances that provides for this "secondary affirmation.° Secondly, the City Council doesn't even have the option of"rejecting the rescission" because upon the vote to rescind, jurisdiction over the PDD, the Conditional Use Permit, and the Architectural Permit on 750 Lofts is irretrievably lost! This is allowing a City to void a permit in one City Council meeting, and then approve the same permits in the next City Council meeting, and reverse the prior decision. There are no grounds to reverse. (4) Even ASSUMING the City can get past these objections, it is clear that in returning the matter of the 750 Lofts approval to the Superior Court to show compliance with the court's order does not simply involve an Action at some point in time to remove fourth floor activities, buildings, events, and structures — however that is accomplished — with no further requirements. In whatever way the City has chosen to act on a development permit, it must AT ALL TIMES conform to due process, to the City's laws and ordinances, to the Brown Act, to the Fair Hearing Laws, to the General Plan Consistency Doctrine, and ultimately, to the Findings requirements of the City and the State of California. These issues, if violated, return to the Court on the review of compliance with its court order. (5) THE SEPARATE ACTION TO GRANT A POTENTIAL HOTEL SUBSIDY ON A 39-ROOM HOTEL AT AN UPPER LIMIT OF $50,000,000 ON 750 LOFTS (AS A NEW ACTION) DESTROYS AND UNDERMINES THE PREVIOUS FINDINGS OF SEPTEMBER 2015, THAT THE PROJECT WAIVERS UNDER PDD ORDINANCE 94.03.00 ARE JUSTIFIED BECAUSE THE PROJECT IS AN ECONOMIC BENEFIT TO THE CITY. This has not been assessed after the hotel incentive grant was added recently. The Action to Grant the Hotel Subsidy should have been linked to this action and should have run concurrently with this action, because it impacts the findings. The findings in 2015 that the project as a PDD, with its sacrifice of open space, parking, set backs, height, and inappropriate waiver of the High-Rise Ordinance (93.04.00) cannot stand today because those waivers were justified with a finding that the economic value of the project justified the loss of public amenities (resulting in increased height, bulk, use of the land — and even a new and prohibited USE of the land as a hotel). Regardless if the subsidy is $15,000,000 or $50,000,000, depending on its ultimate designation, there is absolutely NO evidence on the record to justify the conclusion that this project is of economic value to the City and justifies the PDD waivers. To the contrary, this proposed subsidy results in a 50% or 75% rebate of bed tax over a long period of years that goes directly into the pocket of the Developer, and is not re-invested into this property. This may well result in a negative cash flow at this location, not a public benefit. This also demonstrates the need to make proper and current findings because of changed circumstances with a subsidy that is only recently coming forward and proposed. (6) The introduction of a subsidy and the possible re-design of the project may trigger the need for review under the California Environmental Policy Act. (7) Mr. Babak Naficy, the attorney for Advocates for Better Community Development, has placed a letter on file that argues regardless of how the City chooses to address the court order to comply with its local ordinances on parking, this new City Council of four new members, and City Council Representative Chris Mills, who voted in 2015, MUST make all necessary findings required by state law and local law that the project, as approved today in its final design — (1) Complies with the General Plan intent for the District and does not frustrate or obstruct the intent of the general plan — in a District which has been built out COMPLETELY as Neighborhood Commercial Designation that PROHIBITS HOTELS and has provided for R-3 Boutique Hotels across Indian Canyon on the Eastern flank of the Las Palmas Historic District; (2) Complies with the General Plan intent for the Las Palmas Historic District Guidelines, and its recommendations that the height, bulk, mass, and open space comply with the low-intensity retail-office nature of its surroundings. Those findings cannot honestly be made. I would guess that the City Council sees this as an approval from the past that should be honored and passed through, regardless of its compliance with law. Nothing in the obligations of an administrative tribunal supports this kind of result. No matter what, at the date of the decision, the law must be followed. The moment these permits were rescinded, the only recourse was for 4 the Developer, if he so chooses, to re-file new applications and proceed under the Ordinances for a PDD, CUP, and AAC Permit. I highly recommend the City also review the retention of the General Plan Amendment after vacating these permits, because the General Plan Amendment was justified by the economic return on the project, which no longer obtains. With regard, Judy Deertrack Judy Deertrack 1333 South Belardo Road, Apt 510 Palm Springs, CA 92264 Wednesday, July 5, 2017 To the City Council Palm Springs, California i E: ¥1 I, A =ROPO3ED RESOLUTION COMPLYING WITH WRIT OF MANDATE, REQUIRING ELIMINATION OF THE !]VENT AREA 3-RONI PLANNED DEVELOPMENT DISTRICT (PDD) 374, THE ;7sO LOFTS PROJECT LOCAF ED AT 753 N. ?AIM CANYON DRIVE, CONFIRMING CONFORMITY WIFI i THE CITY'E M UNIC.I'AL CODE WITH REGARD RD TO PARKING, AND OTHERWISE AFFIF?WNG APPROVAL OF PDO 374, INTRODUCTION OF A RELATED ORDINANCE AFFIRMING APPROVAL OF 000 37-T, AND A RELATED RESOLUTION AFFIRMING APPROVAL OF A MAJOR ..ARCHITECTURAL APPLICATION AND CONDITIONAL USE -ERMIT$ RECOMMENDATION: Take one of the following actions: 1) Approve the "750 Lofts" project as follows: a. Adopt Resolution No. , "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, COMPLYING WITH WRIT OF MANDATE, REQUIRING ELIMINATION OF THE EVENT AREA FROM PLANNED DEVELOPMENT DISTRICT (PDD)374, THE "750 LOFTS" PROJECT LOCATED AT 750 N. PALM CANYON DRIVE, CONFIRMING CONFORMITY WITH THE PALM SPRINGS MUNICIPAL CODE WITH REGARD TO PARKING, AND OTHERWISE AFFIRMING APPROVAL OF PDD 374." b. Waive the reading of text in its entirety, read by title only, and introduce for first reading Ordinance No. _, "AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AFFIRMING APPROVAL OF PLANNED DEVELOPMENT DISTRICT (PDD) 374 (CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ)."c. Adopt Resolution No. , "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AFFIRMING APPROVAL OF A MAJOR ARCHITECTURAL APPLICATION AND CONDITIONAL USE PERMITS (CASE 5.1350 PDD 374/GPA/CUP/3.3795 MAJ)."2) Reject the 750 Lofts" project as follows: Affirm the May 3, 2017, rescission of the PDD (Ordinance No. 1886), and the MAJ and CUPS (Resolution No. 23899). Rescind Resolution No. 23898 adopting the mitigated negative declaration ("MND") for this project, and Resolution No. 23900 approving the general plan amendment ("GPA") for this project. 3) Determine that the Council lacks sufficient information to decide whether to approve or deny the 750 Lofts" project at this time, and send the project, or a portion thereof, to the Historic Site Preservation Board and/or Planning Commission for further consideration with direction from the Council.4) Express an intent to approve the 750 Lofts" project including the event space, but resolving all parking issues under the Palm Springs Municipal Code via a modification as,to the scope and nature of the project as newly approved, e.g., a decision to approve the project with fewer hotel rooms, fewer seats in the restaurant and lounges, etc. 5) Express an intent to approve the 750 Lofts" project inclusive of the event space as per Alternative No. 4, but with the addition or removal of specific conditions of approval. 6) Express an intent to approve the 750 Lofts" project excluding the event space, but with the addition or removal of specific conditions of approval. To the City Council: (1) POTENTIAL BROWN ACT VIOLATION IN THE DENIAL OF A PUBLIC HEARING AND RIGHT TO TESTIFY ON NEW MATTERS UNDER ITEM D.1. "DEFERRED ITEMS FROM PREVIOUS CALENDAR:" On May 3, 2017, the City Council, for the first time since the court's decision on 750 Lofts, considered how to comply with the return on the Writ of Mandate, wherein the Superior Court had directed the City to comply with their ordinance and laws, with a finding that the 750 Lofts Project, as approved, did not comply with the City's Ordinances and parking requirements. City Attorney Doug Holland, on May 3rd, advised the City Council they had options and could either deny the project, re-open the project for de novo review, or choose to eliminate the fourth floor event center. This discussion is reflected in the taped video and in the Action Summary. On June 22, 2017, the Minutes of that Hearing had not yet been transcribed. The City Council, on May 3`d, introduced a Motion to Rescind Planned Development District (PDD) Permit # 374; the Conditional Use Permit (PDD) for PDD #374, and the Architectural Advisory Permit for PDD #374. The matter was acted upon, and the City Council effectively voted and rescinded the three permits, and left the General Plan Amendment (GPA) intact. The Action Summary of the Hearing reflects the rescission and vacating of the permits. The matter was continued to June 215t, 2017, for appropriate action in complying with the court order. On June 21, 2017, the City Council reconvened and took public testimony on Item 2C as a public hearing. The scope of that hearing was again the City's response to the Superior Court Return on the Writ of Mandate for inadequate parking for 750 Lofts, and the options of how to respond. At that hearing, City Council representative Ginny Foat immediately expressed her discomfort and confusion that a Supplemental Staff Report with new material and new options was released to the City Council only on the afternoon of the 2 hearing (and never to the public), expressing that she had not had a chance to review the document and its newly presented options for City Council Action, and did not have an adequate record in front of her to make any decision, and was confused on how they could possibly approve the project, or what they were even supposed to be doing. On that date, four out of five of the sitting City Council members were new and were not the City Council members who had approved the 750 Lofts Project in September 2015. On June 215i, members of the public did not have meaningful access to the staff report changes that gave a whole new range of options, and were denied the opportunity to comment. Now, at this July 5th hearing, the right to comment on the range of options and their implications is completely denied because the public hearing has been "closed" and set on the "Deferred Item" Agenda. This denial of a right to set the administrative record of review is a denial of the public's fundamental right to respond to a full and complete record before public testimony terminates. (2) POTENTIAL BROWN ACT VIOLATION IN DENIAL OF FAIR HEARING RIGHTS FROM UNREASONABLY LIMITING PUBLIC TESTIMONY TO TWO MINUTES ON JUNE 21, 2017, AND ELIMINATING PUBLIC TESTIMONY ALTOGETHER ON JULY 5, 2017: On June 21, 2017, the public had 72 hours under the Brown Act, on the publication of the Agenda, to respond to the Agenda description, proposed Action Items, Staff Report, analysis, proposed Resolutions for Action, and attached documentation. What was NOT present and available to the public within that entire 72 hours up and through the hearing was meaningful access to a Supplemental Staff Report that had introduced a whole new range of Action Items and had significantly changed the wording and proposals of the Project Resolutions. Therefore, the testimony from June 215' was incomplete. The action on the July 5, 2017, Agenda for 750 Lofts has closed the public testimony, and has eliminated the public's opportunity to respond at any point on the administrative record to the Supplemental Staff Report. This is a denial of fair hearing rights and of Brown Act rights. To exacerbate this damage, the City has recently enacted an unreasonable and detrimental two-minute time limit on public testimony at public hearings. These matters (as you can see from this letter) are extremely complex, and often there is new information presented at the hearing itself by the developer and/or the City Council that results in the need to present orally, because written statements are already submitted. There is no other jurisdiction in the Coachella Valley that has a two-minute limitation. I can find no other jurisdiction in California that has a two-minute speaking limitation. And yet these meetings go until midnight and 2:OOAM because of the prolific comments of the City Council itself. In all fairness, the balance of comments should result in the public having a reasonable time to rebut the wide-ranging positions of the City Council -- it is a matter of fairness and respect— but also a matter of allowing a proper record of the decision. (3) POTENTIAL VIOLATION OF STATE LAW AND LOCAL LAW ON DUE PROCESS BY IMPROPERLY PROPOSING THE CITY COUNCIL ACTIVATE A SERIES OF RESCINDED PERMITS FROM THE ACTIONS TAKEN BY CITY COUNCIL ON 750 LOFTS ON THE DATE OF JUNE 21, 2017 WITHOUT FOLLOWING LOCAL ORDINANCES AND LAWS ON THE APPROVAL OF PDD'S, CONDITIONAL USE PERMITS, AND ARCHITECTURAL PERMITS: Agenda Action Item for ITEM D.I. contains an option for consideration and approval by the City Council to: "2) Reject the 750 Lofts" project as follows: Affirm the May 3, 2017, rescission of the PDD (Ordinance No. 1886), and the MAJ and CUPs (Resolution No. 23899)." The Agenda then gives a full range of alternative options, such as: "4) Express an intent to approve the "750 Lofts" project including the event space, but resolving all parking issues........ (See also Recommendation Items 5 and 6.) On June 21, 2017, the City Council voted effectively to rescind the 750 Lofts PDD, Conditional Use Permit, and Architectural Permits. The City Council had options, but this was their choice. A rescission voids a permit. A void permit, to my knowledge, cannot be re-activated unless the City has an ordinance or procedure that makes provision for such re-activation, and I can find nothing in the City's laws and ordinances that pertains. Given the rescission (voiding) of the permits, the only due process option available to the City is to properly follow its laws and ordinances on the processing of a PDD (Ordinance 94.03.00), a Conditional Use Permit (Ordinance 94.02.00) and an Architectural Permit (Ordinance 94.04.00). None of these ordinances contain a procedure for re-activating a permit once it has been acted upon and rescinded by the City Council. A dead horse is a dead horse. 3 Also, the language of the Agenda at Recommendation #2 that states or infers there is an OPTION to either "affirm or reject" the May 3, 2017, "rescission" is incorrect and misleading the City Council. The City Council does not need to affirm a rescission, because "rescission" is final. A rescission (voiding a permit) does not need a second and supplemental affirmation, and there is nothing in the ordinances that provides for this "secondary affirmation." Secondly, the City Council doesn't even have the option of"rejecting the rescission" because upon the vote to rescind, jurisdiction over the PDD, the Conditional Use Permit, and the Architectural Permit on 750 Lofts is irretrievably lost! This is allowing a City to void a permit in one City Council meeting, and then approve the same permits in the next City Council meeting, and reverse the prior decision. There are no grounds to reverse. (4) Even ASSUMING the City can get past these objections, it is clear that in returning the matter of the 750 Lofts approval to the Superior Court to show compliance with the court's order does not simply involve an Action at some point in time to remove fourth floor activities, buildings, events, and structures — however that is accomplished — with no further requirements. In whatever way the City has chosen to act on a development permit, it must AT ALL TIMES conform to due process, to the City's laws and ordinances, to the Brown Act, to the Fair Hearing Laws, to the General Plan Consistency Doctrine, and ultimately, to the Findings requirements of the City and the State of California. These issues, if violated, return to the Court on the review of compliance with its court order. (5) THE SEPARATE ACTION TO GRANT A POTENTIAL HOTEL SUBSIDY ON A 39-ROOM HOTEL AT AN UPPER LIMIT OF $50,000,000 ON 750 LOFTS (AS A NEW ACTION) DESTROYS AND UNDERMINES THE PREVIOUS FINDINGS OF SEPTEMBER 2015, THAT THE PROJECT WAIVERS UNDER PDD ORDINANCE 94.03.00 ARE JUSTIFIED BECAUSE THE PROJECT IS AN ECONOMIC BENEFIT TO THE CITY. This has not been assessed after the hotel incentive grant was added recently. The Action to Grant the Hotel Subsidy should have been linked to this action and should have run concurrently with this action, because it impacts the findings. The findings in 2015 that the project as a PDD, with its sacrifice of open space, parking, set backs, height, and inappropriate waiver of the High-Rise Ordinance (93.04.00) cannot stand today because those waivers were justified with a finding that the economic value of the project justified the loss of public amenities (resulting in increased height, bulk, use of the land — and even a new and prohibited USE of the land as a hotel). Regardless if the subsidy is $15,000,000 or $50,000,000, depending on its ultimate designation, there is absolutely NO evidence on the record to justify the conclusion that this project is of economic value to the City and justifies the PDD waivers. To the contrary, this proposed subsidy results in a 50% or 75% rebate of bed tax over a long period of years that goes directly into the pocket of the Developer, and is not re-invested into this property. This may well result in a negative cash flow at this location, not a public benefit. This also demonstrates the need to make proper and current findings because of changed circumstances with a subsidy that is only recently coming forward and proposed. (6) The introduction of a subsidy and the possible re-design of the project may trigger the need for review under the California Environmental Policy Act. (7) Mr. Babak Naficy, the attorney for Advocates for Better Community Development, has placed a letter on file that argues regardless of how the City chooses to address the court order to comply with its local ordinances on parking, this new City Council of four new members, and City Council Representative Chris Mills, who voted in 2015, MUST make all necessary findings required by state law and local law that the project, as approved today in its final design — (1) Complies with the General Plan intent for the District and does not frustrate or obstruct the intent of the general plan — in a District which has been built out COMPLETELY as Neighborhood Commercial Designation that PROHIBITS HOTELS and has provided for R-3 Boutique Hotels across Indian Canyon on the Eastern flank of the Las Palmas Historic District; (2) Complies with the General Plan intent for the Las Palmas Historic District Guidelines, and its recommendations that the height, bulk, mass, and open space comply with the low-intensity retail-office nature of its surroundings. Those findings cannot honestly be made. I would guess that the City Council sees this as an approval from the past that should be honored and passed through, regardless of its compliance with law. Nothing in the obligations of an administrative tribunal supports this kind of result. No matter what, at the date of the decision, the law must be followed. The moment these permits were rescinded, the only recourse was for 4 the Developer, if he so chooses, to re-file new applications and proceed under the Ordinances for a PDD, CUP, and AAC Permit. I highly recommend the City also review the retention of the General Plan Amendment after vacating these permits, because the General Plan Amendment was justified by the economic return on the project, which no longer obtains. With regard, Judy Deertrack