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HomeMy WebLinkAbout5/4/2016 - STAFF REPORTS - 00 Cindy Berardi Subject: FW: Request to deny building permit for St. Baristo 3rd Phase From: staroateind(daol.com [mailto:staroateindColaol.com] Sent: Tuesday, May 03, 2016 11:19 PM To: Robert Moon Subject: Request to deny building permit for St. Baristo 3rd Phase Dear Mayor Moon: We respectfully demand that the city NOT issue building permits to Wessman for the 3rd phase of the St. Baristo project, AND that Wessman is made to comply with the Mitigated Negative Declaration requirements by diminishing the height of building 1A to a ONE story, no taller than 12' - 13' AND remove building D1 completely. If the city allows this developer to build as he would like, we will have a 36' building and a 24' building, and that shall greatly impact ALL of our surrounding properties negatively by obstructing or removing all views, shadowing our pools and invading our privacy, not to mention the parking issues. This is certainly not in the spirit of preserving the Tennis Club area, please do not be part of destroying the neighborhood we all know and love. Unfortunately we are not able to attend the May 4th meeting, please let the record show we object to the issuance of the building permit. Please decline issuance of this building permit as currently proposed. Thank You. Respectfully, Michael and Mildred DeLillo Building Owners since 2006 225 S. Cahuilla Rd. Palm Springs, CA 92262 (818) 512-9592 1 Sunday,May 1,2016 at 4:17:54 PM Pacific Daylight Time Subject: RE: Barristo + tE- Date: Wednesday,April 27,2016 at 5:31:28 PM Pacific Daylight Time From: Art Coon To: 'Douglas C. Holland' CC: 'Flinn Fagg', 'Marina Rossi (marina@avirossgroup.com)' Priority: High Doug (and Flinn), Further to my previous email below, and our phone conversation yesterday, I very much appreciate your calling to advise me that the City Council will be meeting in closed session next Wednesday, May 4, to consider this matter. I remain hopeful that a solution can be reached short of litigation. I write again because in researching another matter, I came across additional legal authority which is highly relevant and applicable here, which I had not previously brought to your and Flinn's attention, and which I am therefore providing in this email; I further request that you place this in the record and share it with the Council (in addition to my previous correspondence and emails, of course). The case of Katzeff v. Departmentaf Forestry& Fire Protection (2010) 181 Cal.App.4th 601 reversed a trial court judgment upholding a 2008 "conversion exemption" allowing the harvesting of less than 3 acres of timber without environmental review under CEQA or compliance with the Forest Practice Rules normally applicable to conversions of timberland. The reason was that the approval violated a CEQA mitigation measure imposed on each of two earlier and completed timber harvest plans (THPs) , which were approved decades earlier in 1988 and 1998, respectively, on the same property.The mitigation at issue, which was adopted in order to protect a neighboring home by providing a buffer against funneled and accelerated winds caused by the harvests, provided that no trees be harvested within 200 feet of the plaintiff's residential property without his permission. In rejecting CalFire's and the real party's arguments that the mitigation had "expired" due to the passage of time or because the prior THPs were complete, or because the "conversion exemption"" was a ministerial approval (like some building permits) not subject to CEQA, the Court of Appeal held that CEQA mitigation measures adopted for a project could not be destroyed in this manner. (1d. at 609-614.) Per the Court of Appeal: "Here, respondents contend, issuance of the conversion exemption was a ministerial action that required no environmental review. Under Orinda, however, even if we accept the argument that the exemption was ministerial, an applicant cannot avoid environmental review of a portion of a larger project simply by securing a separate ministerial permit, particularly where the permit would undo the protective effects of conditions imposed on a project's approval" (Id. at 611, citing and discussing Orindo Assn. v Board of Supervisors(1986) 182 Cal.App.3d 1145, passim.) Further: "We see no principled distinction between a conversion exemption sought immediately after the right to harvest under a THP has expired, and one sought a decade later. Whether or not the legal right to harvest the timber has expired, the environmental effects of the timber harvest are presumed to remain.The wind buffer was required to mitigate the effects of the timber harvest on [plaintiff's] property, and respondents offer no basis for a conclusion that the mitigation expires as a matter of law once the time to complete the timber harvesting— the very action that creates the need for the mitigation—has expired" (Id. at 612.) After extensively discussing legal authorities including the case of Lincoln Place Tenants Assn. which I cited in my earlier email below, and in reversing and continuing a stay on the harvest imposed by its own writ of supersedeas, the Court summed up its key reasoning in the following pertinent passage: "Consistent with the reasoning of the cases we have discussed, we conclude that where a public agency has adopted a mitigation measure for a project, it may not authorize destruction or cancellation of the mitigation— whether or not the approval is ministerial—without reviewing the continuing need for the mitigation, stating a reason for its actions,and supporting it with substantial evidence" (Id. at 614, bold emph. added.) The parallels between the material facts of Katzeff and those involved in the Wessman "Barristo" project (with its MND's attached height reduction mitigation) presently confronting the City are too clear to require rehashing here, as I have already thoroughly and clearly laid out the facts in my prior correspondence. The relevance of this authority to the Council's consideration of the matter is also clear. Thanks again and in advance for your thoughtful attention to these matters. and for bringing them to your City Council's attention. From: Art Coon Sent.Monday,April 25, 2(T16 3:53 PM To: 'Douglas C. Holland' Cc: Flinn Fagg; Marina Rossi (marina@avirossgroup.com) Subject: RE: Barristo Importance: High Dear Doug, Thank you for your below email response sent after business hours last Friday evening. I'm sorry I was apparently not able to more clearly convey the serious problem here and have a more productive dialogue with the City regarding correcting it (despite my extensive prior correspondence and my client's and my meeting with you, Flinn and David at the City), because there truly are prejudicial violations of CEQA (among even more serious legal violations) that have occurred here, and the City still retains jurisdiction and legal authority to correct them. While you are correct that the MIND references a 38-unit project, that misses the most significant point I have repeatedly made. Both (a)the project application (which was never modified, based on our extensive review of the City's documents) and (b)the two sets of plans shown to the neighbors prior to the MND, and the PC and City Council hearings showed only 36 units and no duplex. Per your quote below, the MND represented the plans shown the neighbors (in well-documented meetings prior to October 21, 2003) had been revised such that "a two-story unit located in the northern section of the project...has been replaced with a single story unit" (Emph. added.) Only with this alleged change in the project was the MND able to conclude the project had been modified such that significant aesthetic/view impacts had been reduced to ITS. In other words, without the change, those impacts would have been significant and a full FIR would have been required. It is well established that a change in the project agreed to by the applicant before the MND is circulated can be a proper mitigation measure. Where (as here) such a change is relied on by the lead agency to satisfy CEQA, the change must be real, not illusory. Here,the plans ultimately approved compared to those shown the neighbors did not reflect the "replacement" of any previously proposed two-story unit with a one- story unit, merely the continuation of all structures previously proposed plus the addition of a two-story unit that had (until apparently on or just before the MND's date) never been shown on any plans for the project, and was, indeed, never even the subject of any formal application or revised application to the City. It could not be clearer that that change was not the mitigating project "change"the MND represented had been effected. As I have previously pointed out, whatever form they take, mitigation measures relied on by an agency to satisfy CEQA cannot simply be disregarded by the City or the developer, and if they are subsequently modified or deleted that can be done only after another CEQA review process, which was never conducted here. (Lincoln Place Tenants Assn. v. City of Los Angeles(2005) 130 Cal.App.4th 1491, 1508-1510.) Further, with respect to your prior comments to me about the City's supposed "ministerial" obligation to issue building permits, the City has no such obligation to developer Wessman here. Otherwise ministerial permits cannot issue where there has not been required compliance with mitigation measures earlier incorporated into or made conditions of the project of which they are a part where that project is subject to CEQA. (See, e.g., in. at 1507-1508, & fn. 22.) Moreover, the passage of many years since the MND and project approval is of no moment since the enforcement of required mitigation measures and conditions, such as the height reduction of the triplex here, are not subject to any statute of limitations (Lincoln Place Tenants Assn. v. City of Los Angeles(2007) 155 Cal.App.4th 425, 453, &fn. 23), and it is clear since the offending structure has not yet been built that the matter is in no way moot. The mitigation measure of most concern to my client and many of its neighbors can still be enforced here--if only the City is willing to do so. I have reviewed the 14 minute video of the December 17, 2003 City Council hearing on the project. It reveals that the only member of the public who attended that hearing, or the prior PC hearing, was Mr. Wessman himself; notably, both the Planning Director and then-mayor even commented on the video how unusual it was for HTC neighbors not to come out and complain or comment about the project(given their usual behavior and keen concern with regard to HTC neighborhood projects), and they attributed this to Mr. Wessman's meetings with the neighbors beforehand and his modifying the project to address their concerns. As you should now know, what actually occurred is different, and of a much more insidious character. In short,what I set forth in my prior correspondence to the City is absolutely accurate, and corroborating evidence subsequently obtained thus far from eyewitness neighbors who attended the relevant neighborhood meetings confirms that a fraud occurred: the promised mitigating project change to the plans shown the neighbors that was represented by the developer and MND as having been made to an existing structure as of the date of the MND was, in fact, not made and a new duplex was added that had never been part of the plans shown the neighbors and did nothing to address their concerns.The reason that neighbors didn't show up at the public hearings also is now clear: they relied on the representations made to them by the developer who promised certain changes would be made, but then presented something quite different to the City that reduced the height of nothing and illegitimately added two extra units to boot. Extra-record evidence of such a fraud would be admissible even in CEQA proceedings, not to mention in other judicial proceedings. (Western States Petroleum Assn. v.Superior Court(1995) 9 Ca.4" 559, 575-76,fn. 5 [noting as suggested exceptions to general rule limiting evidence to record instances where the extra- record evidence is relevant to accuracy of record, procedural unfairness, and agency misconduct].) My client and I have approached the City in good faith and proposed a reasonable resolution. I know you have advised me you were "not there" 13 years ago when this unfortunate situation occurred, but it seems to me that neither you (as the city attorney) nor Flinn (as a certified planner with corresponding ethical obligations) can properly simply ignore compelling evidence of a fraud benefitting the developer (and, perhaps, others within the City) at the expense of the environment and the City's citizens whom the mitigation was supposed to protect. If you believe there is a reasonable possibility of resolving these issues short of litigation, my client would be open to considering another meeting with you and appropriate City representatives and Mr. Wessman or his authorized representative to discuss such a resolution. if the City's position remains as stated in your email, however, my client reserves all rights to pursue all appropriate remedies without further notice. Very truly yours, Art Coon From: Douglas C. Holland [mailto DHo1land_C35)wss-law.corn1 Sent: Friday, April 22, 2016 530 PM To: Art Coon Cc: Flinn Fagg Subject: Barristo Good afternoon,Art: I am writing in response to your prior correspondence regarding the St. Baristo Project, Case No. 5.0977-PD- 288 and TTM 31887 for the construction of 38 condominium units located at 284 Cahuilla Road (the "Project"). As you know,the first two phases of the Project are built out. Development of the third and final phase is expected to commence in the near future. This last phase includes a duplex on the northeast corner of the project site and a tri-plex on the northwest corner of the project site. You have expressed concern that the Project's plans for a two story triplex on the northwest corner of the project site deviate from the project described in the Initial Study/Mitigated Negative Declaration ("IS/MND") adopted by the City Council on December 17, 2003. Further,you have asserted that developing the third and final phase in accordance with the approved plans would violate mitigation measures imposed by the IS/MND. Upon review,we have determined that these contentions are not supported by the record. The approved Project plans conform to the project description set forth in the IS/MND. The IS/MND, distributed on October 24, 2003, describes the Project as consisting of the construction of"twelve (12)two- story triplex buildings and one (1) duplex building for a total of 38 condominium units." (IS/MND at p. 1.)(See also, IS/MND at pp. 6-7 describing the Project as consisting of"twelve two story triplex buildings" and "one duplex".) Tentative Tract Map No. 31887 is consistent with this description,showing a total of thirteen buildings, including one single-story duplex unit located at the northeastern corner of the Project site. The "Map Date Identifier" on this map shows the "date of latest change to this map" as being October 21, 2003, predating the distribution of the IS/MND. The project studied by the IS/MND is the Project reflected in the approved Project plans. With respect to aesthetic impacts, the IS/MND identifies "the height of structures in relationship to property lines and adjacent single story structures and the impact to view corridors from existing properties" as an issue of concern. (IS/MND at p. 7.)To address these concerns,the IS/MND provides: As a result of input from the neighborhood and staff's aesthetic analysis, a two story unit located in the northern section of the project and adjacent to existing single-story residential has been replaced with a single story unit. With this change potential significant aesthetic/view impacts are reduced to less than a significant impact. (IS/MND at p. 7.) This passage does not impose height restrictions on the Project's northern boundary as mitigation measures. Rather, it acknowledges that modifications to the Project design, pre-dating distribution of the IS/MND, resulted in a less than significant impact to aesthetics,and that as a consequence, no mitigation was necessary. As evidenced by review of the public hearings held for the matter,the Project was modified by reducing the height of the duplex located at the northeast corner of the Project site. Staff's November 26, 2003 presentation to the Planning Commission explains that the height of the duplex building had been reduced in response to concerns expressed at the neighborhood meetings. Staff also stated that the northernmost triplex unit, which is shown as a multi-story structure,was reoriented to address concerns about the ability of triplex residents to look down into the hotel property.There is no discussion of reducing the height of the tri- plex structure. During his comments on the matter, developerJohn Wessman explained that a multi-story building had been proposed for the northeast corner of the Project site, but that the height had been reduced to a single story unit. When presenting to City Council on December 17, 20103,Staff reiterated that the duplex had been reduced to a single-story structure at the request of the neighbors. In light of the record, it appears that the IS/MND's discussion of a replacement of a two-story unit located in the northeast section of the Project with a single story unit is referring to the change in the Project design that reduced the duplex building to one-story.With this change in the Project design,the IS/MND concluded that no significant impacts to aesthetics would result,and no mitigation was required. I have asked my staff to forward copies of the Planning Commission and Council hearings to you. �If VA Douglas C. Holland, Esq. ,r p l I:G .T 5» ..,to a ard. t" RPO 714 415 1,42 DFa a•:G '%s­ay..Cum CONFIDENTIALITY NOTICE—This e-mail transmission, and any documents,files, or previous e-mail messages attached to it contain information that is confidential or legally privileged. Recipients should not file copies of this e-mail with Publicly accessible written or electronic records. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient,you are hereby notified that you must not read this transmission and that any disclosure,copying, printing, distribution, or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify the sender by telephone at(714)564-2642 or return this e- mail and delete the original transmission and its attachments without reading or saving in any manner-Thank you. Fb MILLER STARR REGALIA MILLER STARR REGALIA CONFIDENTIAL COMMUNICATION This electronic mail message and any amchments are intended only for the use of the addressee(s)named above and may contain information that is privileged, WrIfidental and exempt from disclosure under applicalae law.If you are not an intended recipient or the employee or agent responsible for delivering this e-mail to the intended recipient,you are hereby noMed that any dissemination,distnbufion or copying of this=mmunir Lion is strictly prohibited.If you received this e-mail massage in error,please immediately notiN the sender by replying to this message or by telephone.Thank you. «�� , : « : � � . � \�� © \ \` � . y/ � �f . :\ » « . : § . � ; ?- .��m � « . ° . �\ \ . . , � : . . . ������/ �� �. ,� �\ v «� /\ » �( . w . '«��% � gay :� ee>�x��. . ¥ �«�����®� \�\ � � .�� \ � � � . . s: � .. .. � «�^ � � ^�: . .��«a �. - ° - . : ��:�« � . \.���» » �*y�� . From: Marina Rossi [mailto:marina(davirossgroup.com] Sent: Monday, May 02, 2016 3:33 PM To: Robert Moon; Geoff Kors; ]R Roberts; Chris Mills; Ginny Foat Subject: St. Baristo Development - closed session agenda item - May 4, 2016 (1 of 4 emails) Dear Mayor and Council Members, I am writing regarding a matter that will come before you in closed session on Wednesday, May 4, 2016 that is of great importance to myself as well as to numerous properties adjacent and surrounding the approved St. Baristo Project in the Historic Tennis Club Neighborhood. It has recently, within the last month and a half, been discovered that issues with the approvals given to Wessman Development on this project may have been obtained in a questionable manner. Please note our points below: 1. Original application was for 12 buildings—36 units total. Plans and original application dated September 25, 2003. The neighborhood was notified of proposed plan and information sent regarding the application. All neighbor notifications describe the project as a 1 and 2 story project. Neighborhood meeting was held October 2, 2003. Neighbors were shown two plans—both had only 12 buildings—one plan had driveway adjacent northern boundary with San Giuliano and another had the drive way between triplex units on Lugo. The neighbors chose the second plan. At the urgency of the neighbors, Mr. Wessman reluctantly agreed to reduce the height of building 1A to a one story. Mr. Bill Davis, then owner of 227 S. Cahuilla, was an experienced planner for the City of Santa Barbara. He describes the situation at the meeting requiring the developer to diminish the height of building 1A to one story (12' - 13"). The developer agreed and prepared elevations to show that the building had been decreased to a one story (12' to 13' max). These drawings were shown to the neighbors at a future meeting and the neighbors were satisfied with the changes and therefore did not attend the council meeting and in fact, were in support of the project with the agreed upon changes. The agreed upon changes were incorporated into the MND and were REQUIRED conditions of approval. Mr. Davis will attest to this and there are several other neighbors that were in attendance that will also attest to these facts. 2. St. Baristo approvals—is in violation of its conditions of approval, including height restriction conditions imposed as mitigation measures pursuant to the October 24, 2003 Initial Study Mitigated Negative Declaration adopted by the City for the Project. These conditions and mitigation measures imposed under California Environmental Quality Act(CEQA). "...as a result of input from the neighborhood and staffs aesthetic analysis, a two story unit located in the northern section of the project and adjacent to existing single- story residential has been replaced with a single story unit. With this change potential significant aesthetic/view impacts are reduced to a less than significant impact." This change was NOT ever reflected in the plans submitted and approved. Project has now become 38 units with 13 buildings. No amendment was filed or re- notification of residents filed for the material change of adding another building and 2 more units as required by CEQA. City of Palm Springs allowed this material change with no requirements and represented to Council that this was the original plan as submitted on September 25, 2003. 3. Plans submitted for council approval were different than original submission dated September 25, 2003 and added a new duplex unit which increased the number of total units to 38. This was done WITHOUT an amendment or required neighbor notification. The plan also did not include the agreed upon decreased height of building 1A required by the MND AND promised to the neighbors by John Wessman in two previous neighborhood meetings. The City of Palm Springs, I believe, was complicit with Wessman Development in participating in the fraudulent submission of plans that ADDED an additional 2 units and DID NOT comply with the mitigation measures stated in the MND. The staff report prepared by the City of PS to City Council dated December 17, 2003, included verbage regarding the neighborhood support of project; this is a clear and purposeful misrepresentation since the support of the neighbors was based on a COMPLETELY DIFFERENT PLAN THAT WAS SHOWN TO NEIGHBORS BY WESSMAN AND THE CITY,THIS STATEMENT IS ALSO FALSE IN THAT IT DOES NOT SPECIFICALLY MENTION THAT NEIGHBORS WERE IN AGREEMENT BASED ON THE AGREED UPON DECREASE IN HEIGHT OF BUILDING 1A TO ONE STORY (12'— 13"). It is not unreasonable to expect that the City must have known or certainly should have known that the plans being submitted to Council for approval were substantially different than the plans originally submitted AND that the differing/ new plans did NOT comply with the MND requiring the decrease in height of one building(1A) to a one story (12'— 13') as was promised to the neighbors for their cooperation with the project. Unfortunately, the MND misrepresents the fact that the one tri-plex building had been diminished to a one story, it had not. The argument that the duplex represents the building that had been diminished in height to a one story could not be the case since the Duplex unit (which is a two story) never existed in the plans originally submitted or shown and distributed to residents by the city and Wessman Development. 4. 1 believe that the City of Palm Springs was negligent in stating in the MND dated October 21, 2003 that Wessman Development modified plans to reflect the decrease in height agreed upon with the neighbors and required by the MND. It is the obligation of the city to assure that MND measures are adhered to by applicant so that adverse affects upon adjacent properties will not occur. 5. There were repeated communications issued by the City of Palm Springs to residents and to the Council misrepresenting the project as a 1 and 2 story development, when in fact, it was a 3 story development. These were communications that came from various staff and departments within the city. I believe it is the obligation and role of the city to represent a project correctly not only to the public but to the council that is basing their important decisions on the information they are given. 6. City Council approved plan with 38 units, ALL 2 and 3 stories. The Council Resolution#20803 dated December 17, 2003, describes the project as a 1 and 2 story development. It is unclear as to whether the Council was aware that it was approving a 3 story project as opposed to the 1 and 2 story project as represented by City Staff. Please note that ALL surrounding properties are either low lying one stories or shorter two stories, but nothing in the entire neighborhood comes close to the max height of the approved St. Baristo Project of 36'. As a side note,the height limit at the time of the approvals and currently is 24' for everyone else AND the setbacks both front and side are more than double (25' when adjacent single story) what was allowed by Wessman Development on this project (he was allowed 9-10'). Please note that there are 9 property owners that this will adversely affect this includes view impacts, pool shading and privacy issues. We are prepared to move forward with any legal means possible in order to protect the value of our properties and businesses. I've attached a few pictures that will show the view impacts. Some of the properties will have a complete destruction of views, privacy and permanent shading to our pools. There are a total of 5 affected pools and 9 property owners. I would like to express that I am IN SUPPORT of the development of the St. Baristo project, we are simply asking that Wessman Development comply with the MND and the promises he made to the neighbors to gain support. Specifically, that the height of building 1A be diminished to a one story (12' - 13' max) and that the duplex be removed. If developer would like to modify his original application submitted on September 25, 2003, then they should comply with all required CECA steps in amending the project that were not followed in the first place. Please contact me directly with any questions. All of the documents referred to in this email were obtained from the file located in the Planning department at the City. I would be happy to provide hard copies for your review. Thank you, Marina Rossi 949-310-2223 %1laV44 ,Raaat The San Giuliano Hotel 375 W.Arenas Road Palm Springs, CA 92262 T. 949-310-2223 ICJ I _ � l i r ll h i • SECTION B l i X'-' L _ ' uaow,u , mmxt . .rep wmn SFCTION A a LINE oP slcerr.secrrox snrolEs a msnw e CHURCH SITE PALM SPRINGS -� DESIGN DEVELOPMENT - I II 1k. j (DiI Site Scheme �z t - I nmcrxr,e i JT� ummxr. uur ri i z ,+. * z o ° 1 2I,I CHURCH SITE B k — BARRISTO _. 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SIRE SntEETS _ _______ r : , : r r r r r r r r _ r RIIMIVIz 1 0 Y N 4 __. - _ __—_ --- _ �.� a' v lo• a PREPARED FOR- PREPARED BY. _ WESSMAN g z a opmvff coMWANv } Pa CmF R re •Am'STR� Palm Sp}ga,U 92262 $ 66o)vsnzl ;z_r:_ y TENTATIVE TRACT z � I NO. 31887 Cindy Berardi From: Jennifer Nelson Sent: Wednesday, May 04, 2016 2:32 PM To: Jay Thompson Cc: Kathie Hart; Cindy Berardi Subject: FW: baristo project From: Larry Kramer [mailto:lk(�harryshofbrau.com] Sent: Wednesday, May 04, 2016 2:31 PM To: Jennifer Nelson Subject: baristo project I am a property owner at 355 west arenas palm springs ca . I am protesting the development backing up to my triplex on west arenas .There has been a major changes in the original plans we were shown for this development which do not meet with our approval .Unless changes are made we will join with San Marino hotel and proceed with legal action. Larry Kramer 1909 el camino redwood city ca 94063 650 208 0343 thank you for your consideration in this matter Ik@harrvshofbrau.com 1 I