HomeMy WebLinkAbout10/5/2016 - STAFF REPORTS - 1.O.Date: October 5, 2016
Citv Council Staff Report
CONSENT CALENDAR
Subject: CONSIDERATION OF A REQUEST FOR A REHEARING OF THE CITY
COUNCIL'S DENIAL OF AN APPEAL FOR AN EXTENSION OF TIME
REQUEST FOR THE CRESCENDO PLANNED DEVELOPMENT
DISTRICT (PDD 294); A PREVIOUSLY APPROVED PROJECT
CONSISTING OF A TENTATIVE TRACT MAP (TTM 31766), AND
PLANNED DEVELOPMENT DISTRICT 294 FOR THE CONSTRUCTION
OF 79 HOMES LOCATED AT W. RACQUET CLUB ROAD AND VISTA
GRANDE AVENUE; (CASE 5.0996/PDD 294/TTM 31766)
From: David H. Ready, City Manager
Initiated by: Department of Planning Services
SUMMARY
Per Palm Springs Municipal Code Section 2.05.120, City Council will consider granting
a request for a rehearing on the City Council's action taken on September 21, 2016, to
deny an appeal for an extension of time request for the Crescendo Planned
Development District 294.
RECOMMENDATION:
Direct staff as appropriate.
STAFF ANALYSIS:
On September 21, 2016, the City Council conducted a public hearing to consider an
appeal filed by Wessman Holdings, regarding the action of the Planning Commission on
August 10, 2016, to deny a request for a one-year extension of time for the Crescendo
development — a previously approved project consisting of a Tentative Tract Map (TTM
31766) and Planned Development District 294 (PD 294). The Crescendo development
was originally approved by the City Council on October 17, 2007, for a 79-lot
subdivision on an undeveloped 42.2-acre parcel located along West Racquet Club Drive
and Vista Grande Avenue.
After reviewing and considering all of the evidence presented in connection with the
appeal, including, but not limited to, the staff report, and all written and oral testimony
ITEM NO. 1O
City Council Staff Report
October 5, 2016 - Page 2
Request for Rehearing of City Council's Denial — PD 294
presented, the City Council took action and voted 4-1 (Mills voting no) to uphold the
Planning Commission's action to deny the requested one-year extension of time for PD
294.
Chapter 2.05 "Appeal to City Council" of the Palm Springs Municipal Code (PSMC)
regulates the manner in which all appeals to the City Council otherwise allowed by the
PSMC or other ordinances are prosecuted. In accordance with Section 2.05.100 "Time for
decision — Effective when" of the PSMC, the City Council's decision of an appeal shall be
final and effective at the final adjournment of the meeting at which the decision is
rendered, except in those cases where the City Council is authorized to grant a rehearing,
in which case the City Council's decision shall be final and effective:
(1) When the time to petition for rehearing has expired without the filing of a petition for
rehearing; or
(2) Upon the denial of a petition for rehearing.
Section 2.05.120 "Rehearing" of the PSMC states:
In those cases where the effect of a decision on appeal is to deny a permit or
entitlement, an appellant may apply for a rehearing by filing with the city clerk
and serving upon the other parties, within fifteen days of the date when the
decision was rendered, a petition therefor. Within thirty days after the filing of
such petition, the council shall grant or deny the petition, in whole or in part.
Failure to act within the thirty day limit shall constitute denial of the petition.
In accordance with Section 2.05.120 of the PSMC, on September 27, 2016, a request
for rehearing on the City Council's action to deny the appeal was timely filed. A copy of
the request for a City Council rehearing is included as Attachment 1.
If City Council desires to consider the request for a rehearing on its prior action to deny
the appeal, staff would be directed to schedule a public hearing for October 19, 2016,
for the formal rehearing pursuant to Section 2.05.120 of the PSMC. Absent the City
Council's approval of the request for rehearing and direction to schedule the public
hearing for October 19, 2016, the petition for rehearing filed September 27, 2016, will be
automatically deemed denied after the expiration of 30 days, on October 27, 2016. At
that time, the City Council's prior action taken on September 19, 2016, denying the
appeal will become final and effective.
ENVIRONMENTAL IMPACT:
The Crescendo development is considered a "project" pursuant to the terms of the
California Environmental Quality Act (CEQA), and the City prepared and completed a
Final Environmental Impact Report (FEIR) for the project. In accordance with CEQA, on
November 7, 2007, the City Council adopted Resolution No. 22064 certifying the FEIR,
adopting Statement of Overriding Considerations, and approving Planned Development
District 294, Case No. 5.0996 — PD 294, Tentative Tract Map 31766. No further actions
with regard to CEQA are required.
02
City Council Staff Report
October 5, 2016 - Page 3
Request for Rehearing of City Council's Denial — PD 294
FISCAL IMPACT:
None.
NOTIFICATION:
To the extent the City Council grants the request for rehearing and directs staff to
schedule a public hearing for October 19, 2016, to consider the rehearing, a public
hearing notice will be mailed to property owners within a 500-foot radius of the project
site, a public hearing notice will be published in the local newspaper, and the
surrounding neighborhood organizations will be notified.
SUBMITTED:
FnnaAICP' _�
99�
Director of Planning Services
David H. Ready, Esq., Ph.D.
City Manager
Attachments:
1. September 27, 2016, request for rehearing
GfivQ
Marcus Fuller, MPA, P.E., P.L.S.
Assistant City Manager/City Engineer
03
ATTACHMENT 1
04
Emily Perri Hemphill
Attomey-at Law
13614 E. Geronimo
Scottsdale, AZ $5259
76MOO.4292
eahemohill(a)aol.com
September 27, 2016
Flinn Fagg
City of Palm
Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92264
RE: Request for rehearing --Crescendo PDD 294
Dear Mr. Fagg:
This office represents Wessman Holdings. Pursuant to Palm Springs
Municipal Code Section 2.05.120, please accept this letter as my client's formal request for a
rehearing of the action taken by the Palm Springs City Council on September 21, 2016 with
regard to the denial of an extension of PDD 294 for the Crescendo Project.
FACTS
PDD 294 and Tentative Tract Map 31766 (the "Map") were approved in 2007.
Concurrent with the adoption of those entitlements, the City approved the project's
Environmental Impact Report (the "EIR"), and that EIR was challenged by a group of
neighbors calling themselves the Friends of the Desert Mountains. That lawsuit was
ultimately settled, via a three party settlement agreement between the Petitioner, the City
and Wessman, dated May 29, 2008 (the "Settlement Agreement")
Under the terms of the Settlement Agreement, Wessman made certain
concessions to the Petitioners, namely, the elimination of rock crushing on the site, and the
promise to pursue permission from the Tramway Authority for use of Tramway for hauling
of material to and from the Crescendo site. The Settlement Agreement also required
Wessman to include, in the architecture for the Project, a variety of architectural styles,
prohibited two story units along the Project perimeter or adjacent to other two story units,
and provided that no more than 25% of all units may have a second story.
In the context of that Settlement Agreement, the City agreed that the term of
both the Map and the PD would be extended for an additional three years, and that such
extension was in addition to any extensions that might be granted by the State. Since that
time, the State recognized the severe economic downturn that occurred and passed several
pieces of legislation over the course of several years, each of which extended the life of the
Map, and each of which provided it was in addition to any extensions granted by the City.
As a result of those State extensions and the Settlement Agreement extension, the Map
remains valid unfit 2019. This has been confirmed by both the City Attorney and City Staff.
When the City approved the Map and the PD, it took the unusual step of
drafting only one set of conditions for both entitlements, rather than a set of conditions for
05
the Map and separate set of conditions for the PD. Among those conditions, was a
requirement that the Map could not be finalized until the PD was finalized. When first
approved, this was not problematic as the life of the Map and the PD were coextensive.
When the Council denied extension of the PD on September 21, it essentially terminated the
Map, contrary to State law and the Settlement Agreement, as without the PD, the Map can
never be finalized.
BASIS FOR APPEAL
1. In its review of the PD, the City focused on issues related to grading design, which
Is established by the Map and not by the PD.
The purpose of the PD is to establish architectural design of the homes, and to
define setbacks and development standards within the tots established by the Map. Yet in
denying the extension of the PD, the Council did not even look at those issues. Rather, they
objected to the grading design and the "terracing" it included, claiming that this project
would not be approved today.
Grading is established by the Map, not the PD. Therefore, by denying the extension
of the PD because they don't like the grading, the City is attempting to force a new condition
on the Map. Such an action is a violation of the Subdivision Map Act ("SMA") which
provides that the city may not impose new or different conditions on a final map than those
that were In effect at the time the tentative mao was aooroved. (Gov. Code 66473, 66474.1.)
Suggesting that the City's policies or design standards are different today and that
justifies their action cannot be used to defeat the Map, directly or indirectly as the City is
attempting to do by denying the PD. There is abundant case law affirming that the SMA
does not permit a City to impose changes on a tentative Map, whether those changes be to
city codes or aesthetic philosophy. Even a change in the General Plan would not affect a
tentative map as all tentative maps must be evaluated under the General Plan that existed at
the time the tentative map was approved.. (Youngblood v. Board of Suoervisors (1978) 22
C3d 644, Great W. Say. & Loan v. City of Los Anaeles (1973) 31 CA3 443.)
2. Because the City tied the Map to the final PD, elimination of the preliminary PD or
requiring a change to the preliminary PD violates the SMA.
As noted above, the SMA prohibits the City from imposing new or different
conditions on a final map other than those that were in effect at the time the tentative Map
was aoaroved. The condition that was imposed on the Map in this case, therefore, was the
preliminary PD that was approved concurrently with the Map, itself. By forcing changes to
the PD or eliminating the PD, the City is, in this case, forcing changes to the Map conditions
in violation of the SMA. Changes which may occur after the tentative map was approved do
not, by law, apply to the final map.
3. The City does not have the right, under State law and the terms of the Settlement
Agreement to shorten the life of Map, and by eliminating the PD but not eliminating
the condition for the PD from the Map, the City makes the Map a nullity.
The life of a tentative map is established by State law, and the City does not have
the authority to override State law. In this case, the life of the Map is extended 3 more years
beyond that given under State law as a result of the Settlement Agreement. Therefore, the
City may not impose or modify a condition which, in effect, terminates the Map without
violating the SMA and breaching its obligations under the Settlement Agreement.
4. Claims of CEQA issues are invalid as, by law, the EIR is final and presumed correct
and there have been no changes which were not analyzed or which would increase
impacts beyond those analyzed.
Commenters during the hearing attempted to claim that the PD extension should be
denied based on the need for further CEQA review, however, such claim is in violation of
CEQA which provides that once an EIR is certified and becomes final, it is presumed correct
for all purposes, and the City may not require further review unless there are circumstances
which have changed that trigger new impacts which could not be anticipated and which
increase the impacts beyond those which were analyzed.
When the EIR for the project was done, the area was presumed to be bighorn sheep
habitat, and mitigation measures appropriate to those circumstances were included in the
project. The presence of sheep at or near the site was already considered and does not
permit the City to require further review under CEQA.
In terms of traffic and other impacts, Crescendo, Boulders and Desert Palisades all
did EIR's which considered cumulative impacts of known projects and full build out to the
General Plan. Since that time, the Shadow Rock project, which was included as an
anticipated project, has terminated, and therefore, cumulative impacts are less than
anticipated in the EIR's.
Further, traffic issues which arose in the course of the Desert Palisades project were
largely resolved by the developer modifying his construction traffic access such that
construction vehicles used Tramway, where previously, they were using surface streets
through the adjacent neighborhood. In the case of Crescendo, as part of the Settlement
Agreement, Wessman has already arranged for and agreed to use Tramway for construction
traffic thereby further reducing the traffic impacts to the adjacent neighborhood as analyzed
in the EIR. Therefore, there is no evidence that circumstances exist which would permit the
City to require further environmental review of Crescendo.
S. Wessman was misled to its detriment by direction of staff in preparing for the final
map.
Wessman advised City Staff that we were prepared to finalize the Map, and were told
by staff that by paying 150% of the required fees, the Map would be fast tracked to the City
Council for final approval. Wessman paid the excess fees, and performed all other acts
required to obtain the map, including purchasing bonds and moving forward with the
annexation in the CFD. It was not until all of those actions were done, and those costs
incurred that staff refused to put the Map forward for approval because of the PD condition.
Had we been advised of this fact, we would not have incurred the extra fees for the map
processing, we would not have paid the bond premium and we would not have annexed into
the CFD thereby raising our taxes until we actually had the ability to finalize the Map.
6. Good cause exists for the extension of the PD.
If the City fails to extend the PD, it effectively terminates the Map and violates the
SMA and the Settlement Agreement. Therefore, good cause exists to extend the PD and
allow the developer the State given benefits of the SMA and avoid liability for the City.
Further, the State clearly recognized the economic circumstances that justified numerous
extensions of the Map, and those circumstances are equally applicable to the PD under
these circumstances. Further, the delay in construction at Crescendo assured the
neighbors that construction on Crescendo and Desert Palisades did not occur
07
simultaneously, thereby decreasing the impacts on the neighbors that would have
otherwise occurred.
While we recognize that the personalities on the Council are different from those
that approved the PD originally, a change in personalities that dictates a change in
philosophy does not justify denying the developer the protections afforded him by the law.
In fact, the SMA's prohibition against changed or new conditions on a map are specifically
designed to afford a developer protection that his investment is not wasted because
personnel changes bring changes in philosophy, in essence, the SMA is designed to
prevent precisely what is happening in this case with the denial of the PD extension and its
effect on termination of the Map, We therefore request a rehearing on this matter.
Sincerely,
l-
Emily err Hemphill
cc: Michael Braun
Doug Holland
Jay Thompson
From: Judy Deertrack <judydeertrack@gmail.com>
Sent: Monday, October 03, 201610:59 AM
To: Jay Thompson; Douglas C. Holland; Geoff Kors; Robert Moon
Subject: CITY COUNCIL AGENDA ITEM 1.0. OCT 5, 2016, REQUEST FOR REHEARING ON
CRESCENDO EOT
Attachments: 94.03.00 Planned development district (PD)..pdf
Mr. Jay Thompson
City Clerk's Office
Palm Springs, CA
RE: Wednesday City Council Agenda, October 5, 2016, Item 1.0. (Crescendo Appeal)
Dear Mr. Thompson;
Would you please put my email on the record on the above appeal. My question to the City is
whether the PDD Ordinance 94.03.00 allows for an appeal by the Developer to the City Council. The
express terms of Ordinance 94.03.00 seem to negate the possibility of appeal.
It would appear from the language that if, within two years of the approval of the preliminary plan,
the applicant has not secured the approval of the final plan by the planning commission, the
"procedures and actions which have taken place up until that time shall be null and void." It does
say that "extensions of time shall be granted for good cause." The ordinance DOES NOT SAY that if
the Planning Commission finds good cause does not exist, that the applicant has a right to appeal the
matter.
Given the lack of jurisdiction, unless there is another appeal provision I am not aware of (and this
could be the case), this matter should be removed from the agenda altogether.
Thank you.
Judy Deertrack
Tkm 1.0.
,o1s114o
_______a__ ____ _r _ __rr _____ _ __ _--- _-_
H. Termination of Proceedings.
If, within two (2) years after the date of approval by the city council of the prelimina
final development plan, as indicated in Section 94.03.00(I), has not been approved by the F
procedures and actions which have taken place up to that time shall be null and void and tt
district shall expire. Extensions of time may be allowed for good cause.
I. Termination of Planned Development District.
1. If the owner or owners of property in the planned development district have no
construction within six (6) months from the date of the final development plan as app
commission or within the time set by planning commission or city council approval,1
district shall become null and void. For good cause shown by the property owner, the
may extend the six (6) month period required for commencing construction.
2. For any phased planned development, cessation of development for a period of
shall require planning commission review and approval prior to further development
of an approved development agreement.
3. Planned development districts which are approved in conjunction with an apprc
development agreement (DDA) and/or subdivision map shall not terminate if substan
commenced prior to the termination of the DDA and/or subdivision map.
Palm Springs Municipal Code
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ZONING CODE
Chanter 94.00 PROCEDURES
94.03.00 Planned development district (PD).
Purpose.
The planned development district is designed to provide various types of land use which can be combined in
compatible relationship with each other as part of a totally planned development. It is the intent of this district to
insure compliance with the general plan and good zoning practices while allowing certain desirable departures from
the strict provisions of specific zone classifications. The advantages which are intended to result from the
application of the planned development district are to be insured by the adoption of a precise development plan with
a specific time limit for commencement of construction.
A. Applicability of Regulations.
The following regulations and general rules set forth in this section and in Section 94.02.00 (Conditional use
permit) shall apply in a planned development district. Where a conflict in regulations occurs, the regulations
specified in this section shall apply. A planned development district may be approved in lieu of a change of zone as
specified in Section 94.07.00.
B. Uses Permitted.
The planning commission and city council shall find that the proposed uses as shown on the preliminary
development plan for the PD are in conformity with the required findings and conditions as set forth in Section
94.02.00 (Conditional use permit), the general plan and sound community development. Only those uses approved
by the planning commission and city council may be permitted in the planned development district. The following
types of uses may be permitted in a planned development district.
1. Planned residential development districts may include a multiplicity of housing types; provided, the
density does not exceed the general plan requirements. Housing density may be increased in conformance with
state and local regulations if the district assists the city in meeting its housing goals as set forth in the housing
element of the general plan. The form and type of development on the PD site boundary shall be compatible
with the existing or potential development of the surrounding neighborhoods.
2. A specific commercial use for property adjacent to an existing commercial zone may be approved as a
PD when such property is to be used for additional off-street parking or an extension of buildings proposed in
the existing commercial zone or in combination with residential uses. Where this is permitted, the plan for the
total property shall be submitted and the applicant shall clearly detail, by engineering and architectural
specifications and drawings, the manner in which the subject area is to be developed and the means that will
be employed to protect the abutting property and the health, safety, welfare and privacy enjoyed thereon.
3. In industrial zones, a property which combines industrial and service commercial uses may be approved
as a PD subject to the performance standards of the M-1-P zone to protect the health, safety and welfare of the
area. Such PD's shall be permitted on a major or secondary thoroughfare as indicated on the general plan
street plan or when these uses are integrated into an overall development plan. In both instances the proposed
use shall not adversely affect the uses of properties in adjoining areas.
4. Additional uses may be permitted in the PD including churches, nursery and day schools for pre-school
children, when these uses are located on a secondary or major thoroughfare as indicated on the general plan
street plan or when these uses are integrated into an overall development plan and when in both instances the
proposed use would not adversely affect the uses of property in adjoining areas.
5. Planned development districts may include a multiplicity of uses; providing, the proposed uses are
permitted by the subject zoning and/or general plan regulations. The form and type of development on the site
boundary shall be compatible with the existing or potential development of the surrounding neighborhoods.
6. On the trust lands of the Agua Caliente Indian Reservation, a property which contains a gaming facility
may be approved as a PD subject to the objectives and general plan land use section to protect the health,
safety and welfare of the area. Such PD may include support uses such as resort hotels, restaurants, retail
commercial, and entertainment and parking facilities. Such PD shall be permitted on a major or secondary
thoroughfare as indicated on the general plan street plan or integrated into an overall development plan. In
both instances the proposed use shall not adversely affect the uses of adjoining properties.
C. Property Development Standards.
The planning commission and the city council shall establish a full range of development standards
appropriate to the orderly development of the site which shall include the following:
1. Building heights shall conform to the requirements of the underlying zoning district. Structures which
exceed permitted heights shall be subject to the requirements of Sections 93.03.00 and 93.04.00.
2. Parking and loading requirements shall be subject to the requirements of Sections 93.06.00 and
93.07.00, respectively. The planning commission and the city council may modify such requirements based
upon the submittal of a specific parking plan.
3. Front yard setbacks compatible with the existing or potential development adjacent and/or opposite
from existing development shall be required to provide for an orderly and uniform transition along the
streetscape to preserve, protect and enhance the properties adjacent to the proposed PD. Nonperipheral areas
of the PD shall not be subject to this requirement but shall be determined by approval of the preliminary
development plan by the planning commission.
4. Minimum lot frontage not less than that of existing lots adjacent and/or opposite from existing
developments shall be required to provide for an orderly and uniform transition along the streetscape to
preserve, protect and enhance the properties adjacent to a proposed PD. Nonperipheral areas of the PD shall
not be subject to this requirement but shall be determined by approval of the preliminary development plan by
the planning commission.
5. Open space for planned districts shall be equal to or greater than the minimum open space requirement
for the zone in which the planned district is located, unless otherwise approved by the planning commission
and city council. Recreational areas, drainage facilities and other man-made structures may be considered to
meet a part of the open space requirements.
a. Protection of natural landscape features such as watercourses, hillsides, sensitive land area,
existing vegetation, wildlife, unique topographical features, and views shall be encouraged. Open spaces
shall be integrated into the overall design of the project.
b. Open space for commercial, industrial and mixed uses shall be determined by the development
plan approved by the planning commission and city council.
D. Subdivision Map.
A planned development which requires a subdivision map may include the required map proceedings in the
PD public hearing process.
E. Establishment and Development of a PD District.
A PD may be established through application of the property owner or his legal representative or the city
council in accordance with the public hearing procedures of the conditional use permit as set forth in Section
94.09.00, compliance with the requirements of the California Environmental Quality Act, and the approval of
preliminary and final development plans. A PD may be approved in lieu of a change of zone as specified in Section
94.07.00.
Development in a PD shall be subject to the requirements of this section and shall conform to the
specifications of the final development plan as approved by the city council.
1. Conceptual Development Plan.
(Deleted by Ord. 1553).
2. Preliminary Development Plan.
The applicant shall submit a preliminary development plan package to the department of planning and building for
a preliminary approval by the planning commission and city council. A map and/or site plan of the subject property
shall conform to the requirements of the preliminary application checklist provided by the department of planning
and building.
3. Preliminary Development Plan —Approval by the Planning Commission and City Council.
Approval by the planning commission and city council of the preliminary development plan in accordance with the
procedures required by Section 94.02.00 shall constitute approval of a preliminary planned development district.
The preliminary development plan shall, by reference, be incorporated into and become a part of the planned
development district.
4. Final Development Plan —Approval by Planning Commission.
The applicant shall submit a final development plan for approval by the planning commission. The final plan shall
be substantially in conformance with the approved preliminary plan and shall incorporate all modifications and
conditions to the preliminary development plan made by the commission and city council, and shall be submitted
with the final development plan checklist provided by the department of planning and building. Should the final
plan propose modifications which are not
in substantial conformance with the approved preliminary plan, such Plan shall be processed as a new application.
The final development plan may be processed concurrently with the preliminary development plan.
F. Final Development Plan —Appeal of Planning Commission Action.
Approval of the final development plan by the planning commission shall be final unless appealed to the city
council. The appeal procedure shall be pursuant to Chapter 2.05 of the Palm Springs Municipal Code.
G. Modification of Final Development Plan.
The final development plan may be modified by submitting a request for such modification according to the
same procedure as is required in the initial review and approval process, including public hearing by the planning
commission and city council in accordance with Section 94.09.00. Minor architectural or site changes not affecting
the intent of the PD may be approved by the planning commission. No council action is necessary for minor
changes except appealed decisions.
H. Termination of Proceedings.
If, within two (2) years after the date of approval by the city council of the preliminary development plan, the
final development plan, as indicated in Section 94.03.00(1), has not been approved by the planning commission, the
procedures and actions which have taken place up to that time shall be null and void and the planned development
district shall expire. Extensions of time may be allowed for good cause.
I. Termination of Planned Development District.
1. If the owner or owners of property in the planned development district have not commenced substantial
construction within six (6) months from the date of the final development plan as approved by the planning
commission or within the time set by planning commission or city council approval, the planned development
district shall become null and void. For good cause shown by the property owner, the planning commission
may extend the six (6) month period required for commencing construction.
2. For any phased planned development, cessation of development for a period of two (2) years or more
shall require planning commission review and approval prior to further development of the district unless part
of an approved development agreement.
3. Planned development districts which are approved in conjunction with an approved disposition and
development agreement (DDA) and/or subdivision map shall not terminate if substantial construction has
commenced prior to the termination of the DDA and/or subdivision map.
I Designation of Planned Development District on Zoning Map.
Each planned development district shall be numbered, the first being shown on the official zoning map as
PD(1) and each district subsequently applied for being numbered successively. All planned development districts
granted final plan approval, including planned development districts in lieu of changes of zone, shall be shown on
the official zoning map of the city. Designation of a planned development district on the official zoning map shall
not constitute an amendment of the official zoning map, except PD's approved in lieu of a change of zone as
provided in Section 94.07.00.
K. Previously Approved Projects.
Expired projects approved prior to the adoption of this section, may apply for consideration of a time
extension under the provisions of this chapter within one (1) year from the effective date of this Zoning Code. Such
projects shall be subject to all new applicable regulations.
L. Reversion to Previous Zoning.
Any PD which has not started construction within the time constraints of this Zoning Code shall revert to the
original zoning designation and the designation shall be removed from the zoning map.
(Ord. 1829 § 3, 2013; Ord. 1553, 1998; Ord. 1551, 1998; Ord. 1482, 1994; Ord. 1294, 1988)
View the mobile version.
Jay Thompson
From: Judy Deertrack <judydeertrack@gmail.com>
Sent: Monday, October 03, 2016 2:04 PM
To: Jay Thompson; Douglas C. Holland; David Ready; Geoff Kars; Robert Moon
Subject: Fwd: CITY COUNCIL AGENDA ITEM 1.0. OCT 5, 2016, CRESCENDO / ADDENDUM TO
COMMENT LETTER
Mr. Jay Thompson
City Clerk's Office
Palm Springs, CA
Re: ADDENDUM TO COMMENTS
Item 1.0 Crescendo / City Council Agenda Wed, October 5, 2016
Dear Mr. Thompson,
After sending my first comment letter, I took a closer look at Chapter 2.05.00 Appeal to City
Council. At Ordinance 2.05.030 Filing of Appeal, the language is explicit that if a person is aggrieved
by a decision, that person may appeal "IF THE ACTION IS MADE APPEALABLE BY APPLICABLE
PROVISION OF THE PALM SPRINGS MUNICIPAL CODE OR OTHER CITY ORDINANCE."
Once one concentrates on the highlighted section of 2.05.030 (above), that language would direct
the City to Ordinance 94.03.00 PDD (as the underlying applicable provision of the muni code) to look
for its appeal provisions, and IT HAS NONE.
Of course, upon approval of the original Preliminary Plan, Chapter 2.05.120 grants a right of
Rehearing, BUT that action is NOT initiated by a Developer, it is initiated by a member of City
Council. AND this is not the PDD permit entitlement; this is the extension of time, and the Planning
Commission is the final hearing body on the extension of time (although the City Council may be able
to "call it up" by its own initiative, not the developers).
Ord. 94.03.00 PD DOES address extensions of time, and ORDINANCE 94.03.00 IS SILENT ON
RIGHTS TO APPEAL DENIAL OF AN EXTENSION OF TIME.
Please note again:
H. Termination of Proceedings.
If, within two (2) years after the date of approval by the city council of the preliminar}
final development plan, as indicated in Section 94.03.00(I), has not been approved by the ph-
vrocedures and actions which have taken place uv to that time shall be null and void and the
district shall exvire. Extensions of time may be allowed for Rood cause.
This language in Ordinance 94.03.00 H. would suggest that the applicant (Wessman) NEVER had
grounds to appeal the Planning Commission DENIAL of the Crescendo Extension of Time request in
the first place, and the City Council may have acted without proper jurisdiction on September 21,
2016 under Item 2.B:
2.B. APPEAL BY WESSMAIN HOLDINGS OF THE PLANNING COMMISSIC
AN EXTENSION OF TIME REQUEST FOR THE CRESCENDO PLAN -AN
DISTRICT (PDD 294), A PREVIOUSLY APPROVED PROJECT CONSISTIN
TRACT' MAP CITY[ 31766), AND PLANNED DEVELOPMENT' DIS'1'Rl
CONSTRUCTION OF 79 HOMES LOCATED AT W. RACQUET CLUB ROAD.
AVENUE, (CASE 5.o996/PDD 294/TTM 31766):
Ordinance 94.03.00 does not grant such jurisdiction, and Ordinance 2.05.030 makes it clear that the
jurisdiction to act is granted from the underlying ordinances tied to the permits and their
procedures. Given that fact, the City Council is now in a very strange position, because this matter
is AGAIN on the City Council Agenda, and I don't quite understand how, given the fact that EVEN IF
ONE CONSIDERS THE POSSIBILITY THE CITY COUNCIL HAD JURISDICTION TO ACT ON SEPTEMBER
21ST, this matter should have been set on another agenda ONLY IF one of the City Council members
filed under Ordinance 2.05.110 Reconsideration:
2.05.110 Reconsideration.
Without granting a rehearing, the city council may reopen and reconsider a decision at
decision becomes final. A motion to reconsider may be made only by a member of the city c
favor of the decision. (Ord. 1226 § 1, 1984)
One might argue that Mr. Wessman (applicant) had a right to a rehearing under 2.05.120
Rehearing. However, two circumstances lead away from that conclusion; namely, (1) 94.03.00 has
no appeal provisions from an extension of time; (2) even if it did, the language of 2.05.120
Rehearing states, "In those cases where the effect of a decision on appeal is to deny a permit or
entitlement........ The showing of good cause for an extension of time cannot fairly be classified as
the "denial of the permit or entitlement." The appeal provisions on the direct entitlement lapsed
many, many years ago.
I have included 2.05.120 Rehearing language:
e
2.03.120 Rehearing.
In those cases where the effect of a decision on anneal is to deny a permit or entitienn
apply for a rehearing by filing with the city clerk and serving upon the other parties, within:
when the decision was rendered, a petition therefor. Within thirty days after the filing of suc
shall grant or deny the petition, in whole or in part. Failure to act within the thirty day limit
the petition. (Ord. 1226 § 1, 1984)
Accordingly, I would ask the City to consider and act upon my points of law. I would ask that the
City recognize it was without jurisdiction to act on its denial of September 21, 2016, and recognize
that the denial of the Planning Commission on September 14, 2016, was the final decision.
I would ask the City to consider and act upon my point of law that (should it find it had jurisdiction to
act on September 21st), that now the only available remedy for rehearing or reconsideration is under
2.05.110 Reconsideration, and the grounds are not present, since no member of the City Council
has moved for Reconsideration of the September 21 decision; and
I would ask that this matter be vacated from the calendar for lack of jurisdiction.
I was appointed to the City's Government Reform Transparency Committee. We made a very strong
recommendation to the City that the Mayor of Palm Springs should review the City Council Agendas
prior to publication. This is incredibly important, and it is a powerful check -and -balance. I have seen
more than a few items recently on the agenda that, upon inspection by the City Council during the
meetings, would have been better off either not making it to the agenda, or placed on the agenda in
a more timely manner.
I hope the City takes this recommendation in good stead. We did a lot of hard work on that
Committee, and we hope the City respects and honors some very common sense changes that might
help with some of these problems.
Ultimately, HOW DID THIS MAKE IT ON THE AGENDA? I believe it was from the Developer's request
for an appeal, but look at the options the City Council has. They made their wishes very clear in the
hearing that they were through with this item!! So..... Even where an applicant files for a rehearing
under 2.05.120 Rehearing, the City Council NEED NOT ACT TO CALENDAR THE REQUEST!
Please note the following language, "Failure to act within the thirty day limit shall constitute denial of
the petition." If Mr. Wessman's request had just been ignored for thirty days, this would go
away. No City Council member asked for this return. Having the Mayor's input on this would have
clarified this.
3
2.05.120 Rehearing.
In t ioi ,fie cases where the effect of a decision on apveal is to denv a permit or entitlemE
apply for a rehearing by filing with the city clerk and serving upon the other parties, within
when the decision was rendered, a petition therefor. Within thirty days after the filing of suc
shall grant or deny the petition, in whole or in part. Failure to act within the thirty day limit ;
the petition. (Ord. 1226 § 1, 1984)
Thank you.
Judy Deertrack
1333 South Belardo Road, Apt 510
Palm Springs, CA
760 325 4290
---------- Forwarded message ----------
From: Judy Deertrack <iudvdeertrackaa amail.com>
Date: Mon, Oct 3, 2016 at 10:58 AM
Subject: CITY COUNCIL AGENDA ITEM 1.0. OCT 5, 2016, REQUEST FOR REHEARING ON
CRESCENDO EOT
To: Jay Thompson <Jay.Thomnsonaa oalmsnrines-ca. eov>, "Douglas C. Holland"
<Douelas.Holland(a nalmsnrines-ca.eov>, Geoff Kors <Geoff.Kors(ayalmsvrinas-ca.gov>, Robert Moon
<Robert.Moon(a palmsgrinasca.eov>
Mr. Jay Thompson
City Clerk's Office
Palm Springs, CA
RE: Wednesday City Council Agenda, October 5, 2016, Item 1.0. (Crescendo Appeal)
Dear Mr. Thompson;
Would you please put my email on the record on the above appeal. My question to the City is
whether the PDD Ordinance 94.03.00 allows for an appeal by the Developer to the City Council. The
express terms of Ordinance 94.03.00 seem to negate the possibility of appeal.
It would appear from the language that if, within two years of the approval of the preliminary plan,
the applicant has not secured the approval of the final plan by the planning commission, the
"procedures and actions which have taken place up until that time shall be null and void." It does
say that "extensions of time shall be granted for good cause." The ordinance DOES NOT SAY that if
the Planning Commission finds good cause does not exist, that the applicant has a right to appeal the
matter.
Given the lack of jurisdiction, unless there is another appeal provision I am not aware of (and this
could be the case), this matter should be removed from the agenda altogether.
Thank you.
Judy Deertrack
H. Termination of Proceedings.
If, within two (2) years after the date of approval by the city council of the prelimina
final development plan, as indicated in Section 94.03.00(I), has not been approved by the I
procedures and actions which have taken place up to that time shall be null and void and tt
district shall expire. Extensions of time may be allowed for good cause.
I. Termination of Planned Development District.
1. If the owner or owners of property in the planned development district have no
construction within six (6) months from the date of the final development plan as app
commission or within the time set by planning commission or city council approval, 1
district shall become null and void. For good cause shown by the property owner, the
may extend the six (6) month period required for commencing construction.
2. For any phased planned development, cessation of development for a period of
shall require planning commission review and approval prior to further development
of an approved development agreement.
3. Planned development districts which are approved in conjunction with an apprc
development agreement (DDA) and/or subdivision map shall not terminate if substan
commenced prior to the termination of the DDA and/or subdivision map.
Jay Thompson
From: Judy Deertrack <judydeertrack@gmail.com>
Sent: Monday, October 03, 2016 2:28 PM
To: Jay Thompson; David Ready; Douglas C. Holland; Geoff Kors; Robert Moon; Flinn Fagg
Subject: Fwd: CITY COUNCIL AGENDA ITEM 1.0. OCT 5, 2016, CRESCENDO / ADDENDUM TO
COMMENT LETTER
Folks,
As an afterthought, I realize that the Request for Rehearing would have been put on the consent
agenda so that the Applicant would have no grounds to claim that the City Council's "failure to act"
within thirty days was based upon not knowing about the requested appeal. So sorry for that mishap
in my thinking. However, the real point is whether the Chapter 2 and the PDD ordinance, read in
conjunction with one another, prohibit an appeal to the City Council on extensions of time, except for
use of the call-up ordinance (initiated by the City Council member). I also maintain it is quite
important that a representative of the City Council help review the ordinance for timeliness and
content, and that would be the Mayor, from past practice, I believe.
Mr. Fagg, I think this is a good topic for discussion at this week's PDD Study Committee, since a fair
number of Preliminary Plans were granted years ago, and are hanging in the balance, and the
grounds for "good cause" on further Extensions, together with new approaches to the scope of PDD
waivers, suggests this might be a good point of review.
Just a suggestion.
Thank you.
Judy Deertrack
760 325 4290
---------- Forwarded message ----------
From: Judy Deertrack <iudvdeertracknemail.com>
Date: Mon, Oct 3, 2016 at 2:03 PM
Subject: Fwd: CITY COUNCIL AGENDA ITEM 1.0. OCT 5, 2016, CRESCENDO / ADDENDUM TO
COMMENT LETTER
To: Jay ThompsonQay.Thomosonnnalmsnrines-ca.Rov>, "Douglas C. Holland"
<Douglas.HollandnnalmsnrinRS-ca.Rov>, David Ready <David.Readvnnalmsnrines-ca.Rov>, Geoff Kors
<Geoff.KorsnnalmsnrinRs-ca.Rov>, Robert Moon <Robert.Moonnnalmsnrinesca.Rov>
Mr. Jay Thompson
City Clerk's Office
Palm Springs, CA
Re: ADDENDUM TO COMMENTS
n'Pe
P.
r. 3
LITTLE TUSCANY
NEIGHBORHOOD ORGANIZATIOf4,r,.,
Palm Springs City Council
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
October 4, 2016
Subject: Comments on item 1.0 on the October 5, 2016 City Council Agenda:
1.0 CONSIDERATION OF A REQUEST FOR A REHEARING OF THE CITY
COUNCIL'S DENIAL OF AN APPEAL FOR AN EXTENSION OF TIME REQUEST FOR
THE CRESCENDO PLANNED DEVELOPMENT DISTRICT (PDD 294): A PREVIOUSLY
APPROVED PROJECT CONSISTING OF A TENTATIVE TRACT MAP (TTM 31766). AND
PLANNED DEVELOPMENT DISTRICT 294 FOR THE CONSTRUCTION OF 79 HOMES
LOCATED AT W. RACQUET CLUB ROAD AND VISTA GRANDE AVENUE; (CASE
5.0996/PDD 294/TTM 31766):
Dear Mayor and City Council Members,
We, the Little Tuscany Neighborhood Organization, respectfully request the City Council take
the following action:
1. Uphold the decision of the Planning Commission and the City Council to deny a request
for a time extension for PDD 294, the Crescendo Development; and,
2. Deny a re -hearing of the City Council's denial of the Crescendo Planned Development.
The September 27, 2016 letter submitted by the developer's legal counsel requesting a re-
hearing, is written to argue supposed findings, confuses the issue, and provides no new
evidence to support a re -hearing. By law, findings are not necessary to deny the time extension
for the PDD. According to the previous staff report and Palm Springs Municipal Code section
94.03.00(H), denying or approving a PDD time extension is completely discretionary and no
findings are reauired.
Little Tuscany Neighborhood Organization - Re: Crescendo
Due to the fact that the approval of the Map included a Condition of Approval that the Map
cannot be finalized until the PDD 294 is finalized, the letter argues that this is in violation of
State law (Government Code 66473-6647.1.). The City Council did not deny the Map, it
denied the PDD. The PDD was a condition of the Map and the developer accepted the
Conditions of Approval ten years ago reaffirming its existence and importance by requesting, in
writing, numerous PDD time extensions. Local agencies backed by State law commonly reject
final approval of Maps because requirements are not met, but in this case the Map is not being
denied.
Below is the language from State Law as it pertains to tract maps that was referenced in the
developer's letter. This law, however, is not related to the PDD as the developer's letter may
lead you to believe.
GOVERNMENT CODE
SECTION 66473-66474.10
66473. A local agency shall disapprove a map for failure to meet or
perform any of the requirements or conditions imposed by this
division or local ordinance enacted pursuant thereto; provided that a
final map shall be disapproved only for failure to meet cr perform
requirements or conditions which were applicable to the sutdivision
at the time of approval of the tentative map; and provided further
that such disapproval shall be accompanied by a finding identifying
the requirements or conditions which have not beer, met or performed.
Such local ordrnan^e shall include, but need not be limited to, a
procedure for waiver of the provisions of this section when the
failure of the map is the result of a technical and inadvertent error
which, in the determination of the local agency, does not materially
affect the validity of the map.
The City Council and the Planning Commission did not deny the Map, it was the PDD that was
denied. The Map is still active. As stated by the Palm Springs City Attorney at the City Council
meeting denying the PDD time extension, the developer has options as the Map is still alive.
The developer not only failed to meet the requirements of the PDD but failed to do so over 10
years. The developer filed repeated requests for one-year time extensions each time putting
into writing that the project would start within a year. This delay in time and the fact the
developer did not honor his written word is "good cause" unto itself to uphold the denial of the
PDD extension of time and not grant a rehearing.
Page 12
Little Tuscany Neighborhood Organization - Re: Crescendo
Additionally, contrary to the developer's letter, conditions have substantially changed as the
record indicates.
What the developer might be referring to is the following Government Code section:
66474.1. A legislative body shall not deny approval of a final or
parcel map if it has previously approved a tentative map for the
proposed subdivision and if it finds that the final or parcel map is
in substantial compliance with the previously approved tentative map.
Again the City Council did not deny the Map, it denied the PDD. This reference in the
Government Code is about the Map not the PDD.
The developer was well aware of the need to keep the PDD alive by the simple fact that he filed
repeated written PDD time extensions over the 10-year period. The act of filing for PDD time
extensions alone clearly indicates that the developer was not only aware of the Condition of
Approval tying the Map to the PDD, but was keenly conscious of the importance to have the
PDD time extended to satisfy the Conditions of Approval for the Map. Again the Map has not
been denied.
Citing Youngblood v. Board of Supervisors (1978) 22 Old 644, Great W. Say. & Loan v. City of
Los Angeles (1973 31 CA3 403.), The developer states:
"There is abundant case law affirming that the SMA does not permit a
City to impose changes on a tentative Map, whether those changes be to
city codes cr aesthetic philosophy."
Your denial of the PDD time extension did not impose any new changes to the Map as the Map
currently exists with its Conditions of Approval that included conditions tying the PDD to the
Map. The developer failed in a timely manner to meet or satisfy the requirements of the PDD.
Again, the developer has affirmed in writing his knowledge of the Conditions and the
importance of all the Conditions that have existed for 10 years.
In closing, although you do not need findings to uphold your denial of the time extension, we
have provided foundational reasons why City Council should not grant a re -hearing. The
developer has not provided any new information in its appeal that was not part of the City
Council hearing where you denied the PDD time extension. It is assumed by the comments
made during the public hearing denying the PDD time extension, the Developer is likely
lobbying the City Council to grant a re -hearing, but this would be on political grounds and not
on the evidence provided by the developer.
Page 13
Little Tuscany Neighborhood Organization — Re: Crescendo
Cordially,
Dennis Woods, Co -Chair Little Tuscany Neighborhood Organization
Tim O'Bayley, Co -Chair Little Tuscany Neighborhood Organization
Robert Dorn, Treasurer/Secretary Little Tuscany Neighborhood Organization
Tony Hoetker, Board Member Little Tuscany Neighborhood Organization
Denise Hoetker, Social Chair Little Tuscany Neighborhood Organization
CC: Little Tuscany Board
Little Tuscany Neighborhood Improvement Committee
Posted on Next Door Little Tuscany
Page 14