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Home My WebLink AboutCORRESPONDENCE - 75BMitre - Ramirez, Norma From: Huizar, Maria Sent: Tuesday, September 02, 2014 3:50 PM To: Cavazos, David; Haluza, Karen; Carvalho, Sonia R. Cc: Fregoso, Vince, Foulkes, Matt; Hodge, Ryan; Sandoval, Jose; Schwarzmann, Sandra Subject: FW: Comments re Item 75B for tonight's CC meeting - Sexlinger Farmhouse and Orchard Attachments: PDF_2014090214403000.PDF; Index of Enclosures to DMR letter to City Council dated 9- 2- 2014.pdf Mayor and City Council, Attached is correspondence received on Agenda Item 75B (Sexlinger matter) for your review and consideration. Hard copies will be provided to you at the City Council Meeting. From: Cathy Richardson [mailto :CRichardsonC sheppardmullin.coml Sent: Tuesday, September 02, 2014 3:14 PM To: Huizar, Maria Cc: Deborah Rosenthal; ieannie (aoldorchardconservancy.org Subject: Comments re Item 75B for tonight's CC meeting - Sexlinger Farmhouse and Orchard Dear Ms. Huizar: Please see attached letter to the City Council relative to the above - referenced matter for tonight's meeting. Please also see the attached Index to the enclosures of the letter. We would appreciate it if you could please send this email to all the City Councilmembers prior to tonight's meeting and /or provide copies of same to them. We will be bringing copies of the letter and Exhibits to tonight's meeting. Thank you for your assistance. Cathy Richardson Legal Secretary to Deborah M. Rosenthal 714.424.262 direct Cichard onCa�Rsheooardmullin.com SheppardMullin Sheppard Mullin Richter & Hampton LLP 650 Town Center Drive, 4th Floor Costa Mesa, CA 92626 -1993 714.513.5100 1 main www.shenDardmullin.com Attention: This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. CCM 9/2/2014 75B SheppardMullin September 2, 2014 VIA FACSIMILE AND E -MAIL City Council City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 Fax: (714) 647 -6956 Sheppard Mullin Richter & Hampton LLP 650 Town Center Drive, 4th Floor Costa Mesa, CA 92626 -1993 714.513.5100 main 714.513.5130 main fax www.sheppardnnul;in.com 714.424.2821 direct drosenthal@sheppardmullin.com File Number: 0010. 174415 Re: 9/212014 Agenda Item 75B — Sexlinoer Farmhouse and Orchard Dear Mayor and Members of the City Council: The City Council made numerous serious factual and legal errors when it approved replacement of the historic Sexlinger Orchard with a run -of- the -mill tract map on March 4, 2014. Adopting new findings for a bad decision, as proposed by Staff, does not resolve the problems with the City's original findings. The new findings are a blatant attempt to pad the administrative record with after - the -fact justifications in The Old Orchard Conservancy's pending lawsuit against the poorly- conceived Sexlinger development project. In fact, the proposed action shows a fundamental disrespect for both the Court and the Planning and Zoning Laws, The Old Orchard Conservancy continues to object to approval of Vesting Tract Map No. 2013- 02 (tract map) and Variance No. 2012 -04(b) (variance) for all of the reasons set forth in its prior submittals to the City and the petition in TOOC v. COSA, Orange County Case No. 30-2014 - 00714225-CU-WM-CXC. All of these written and verbal submittals, including the petition, are incorporated by reference in this letter of objection. They are contained in the administrative record for TOOC v. COSA, which has been submitted to the City Clerk. In addition, the Conservancy objects to "consideration" of the project after the approvals are final for the purpose of adding findings to the record. The Sexlinoer Development Project Is Flawed And Destructive To The Community As described in the Conservancy's prior submittals, as well as the City's documentation, the Sexlinger Orchard and Farmhouse is a unique resource in the City of Santa Ana. The Council recognized the historic importance of the 5 -acre Farmhouse and Orchard by designating it as a KEY historic resource under the City's Municipal Code. The tract map and variance allow demolition of 95% of the historic Orchard, leaving the Farmhouse to be sold without its setting and unprotected by any permanent mitigation measures. SheppardMullin City Council September 2, 2014 Page 2 The decision to authorize destruction of the 5 -acre Orchard relied on highly questionable and internally contradictory information in the administrative record. The after - the -fact findings proposed for adoption do not resolve these contradictions; they simply use more self- serving language than the original findings. The bottom line remains the same: the City has traded a unique historic resource for a handful of high -end houses without considering whether feasible alternatives could avoid or mitigate the impact. The Findings Are Not Supported By Substantial Evidence The after - the -fact Findings restate and embellish the information in the Environmental Impact Report (EIR) for the tract map and variance. However, they do not provide any new substantial evidence to support the City's original improper decision to ignore feasible alternatives when approving demolition of the Sexlinger Orchard. In fact, the after - the -fact Findings ignore evidence submitted at the March 4`" City Council meeting that the Council was operating under a serious misunderstanding of fact. The Minutes for the March 4th City Council meeting reveal that four of the Councilmembers concluded that no funding was available to purchase the Sexlinger property for increased preservation. (Exhibit) Mayor Pro Tern Tinajero and Councilmember Benavides explained that the Conservancy had been given more than two years to acquire the property, without result. Councilmember Sarmiento stated that property rights need to be respected and Councilmember Amezcua stated affirmatively that no funding to develop or maintain the area was available. These statements were incorrect, based on information in the record. The Conservancy offered testimony, both written and verbal, that a cash offer of more than $2 million was made for the property by the Conservancy in 2013 and again before the hearing in 2014. Since that time, the Conservancy has more than doubled its cash offer for the property in writing, well exceeding its market value. The property owners' refusal to accept a cash offer does not affect the fact that preservation options were feasible when the EIR was drafted, and continue to be feasible now. The Agenda for this meeting simply adds another layer of confusion. It states: "For additional information please visit: http: / /www.santa- ana.org /pba /planning/ SexlingerFarmhouseand Orchard.asp." (Exhibit) Among the environmental documents listed on the website are the "Sexlinger Farmhouse and Orchard Findings of Fact and Statement of Overriding Considerations." (Exhibit) These Findings of Fact were in existence prior to March 4, 2014 and have been prominently displayed on the website consistently since that time. (Exhibit) These Findings of Fact are not the findings proposed for adoption this evening, but there is no indication of that fact on the website. The actual Findings of Fact are buried at page 547 of the Agenda packet for the Council hearing. The City Council No Longer Has Power To Add Findings To The Record The City Council certified the Final EIR and approved the tract map and variance on March 4, 2014. The Resolution stated in Section 5 that the decision is "final" and subject to review under the California Code of Civil Procedure. The time for challenging the EIR expired on or about April 4, 2014 under CEQA. The time for challenging the tract map and variance expired no later SheppardMullin City Cound September 2, 2014 Page 3 than June 2, 2014 under the Planning & Zoning laws. Jurisdiction over the Council action, and its finality, transferred to the Court once TOOC challenged the Council's decision. Even if TOOC had not timely challenged the decision, it was final for all purposes other than formal amendment or revocation. The Staff Request for Action for this hearing flatly states "the City Council took final action" on March 4, 2014. (Agenda Packet 7513-2.) The City has adopted procedures for changing or revoking an administrative decision and it is not following any of them. Amendment of a tract map must be at the request of the owner, while revocation must meet specified criteria and standards. The City is not even pretending to be altering its earlier decision, and there is no procedure for "updating" a bad decision by adopting after - the -fact Findings under the City's Code. In effect, the proposed "consideration" is an admission the City did not have adequate findings to support its earlier decision, so it hopes to correct the inadequacies without following appropriate procedures. In this case, the proper procedure would be for the City to admit in Court that its original findings were inadequate, that the demolition permit issued for the Orchard was improperly granted and the approvals must be side aside by the Court. The City has already filed an answer asserting the original approval was proper. Under these circumstances, the City does not have the option of keeping the approvals in effect while attempting to correct or expand the record. The Public Hearing Noticed For September 2, 2014 Is A Sham The City filed a Notice of Determination for the tract map and variance on March 5, 2014. The Notice stated that Findings were made under CEQA and the project was approved on March 4' (Exhibit) The City does not have legal authority to revisit the tract map decision for the purpose of improving the previous Findings. There is no remaining administrative decision for the City Council to make — it has already decided to approve the poorly- conceived tract map and the Request for Council Action does not identify any circumstances under which the fundamental development decision can or will be revisited. In the simplest possible terms, the City does not have the power to change its mind on the tract map approval after six months. The City Council has already made findings and, unless the City is willing to acknowledge they were inadequate and accept the Conservancy's claims in Court, the law prevents after - the -fact findings and other actions. Unless the City Council can lawfully reject the tract map and variance at this hearing, the entire action is a sham designed solely for litigation advantage. Conclusion Reconsidering a tract map approval more than five months after it became final is outside the City's authority. Padding an administrative record with newly- created findings after a lawsuit has already been filed is an express violation of CEQA. The Council no longer has the administrative power to modify the approved tract map for the Sexlinger Orchard or to add new matter to the administrative record. If the City truly believes the original findings were SheppardMullin City Council September 2, 2014 Page 4 inadequate, it must follow the procedures for revoking its original decision, amending its answer and filing the appropriate return with the Court. Very truly yours, ��j Deborah M. Rosenthal, AICP for SHEPPARD, MULLIN, RICHTER & HAMPTON LLP SMRH:431305723.1 Enclosures cc: Mr. Nick Spain Ms. Jeannie Gillett Sandra Schwarzmann, Esq. Exhibits to Deborah M. Rosenthal Letter to the City Council dated September 2, 2014 1. California Environmental Quality Act Findings (item 75B, pp. 547 -590) 2. Certification of the Final Environmental Impact Report, Findings and Approvals for the Sexlinger Farmhouse and Orchard Residential Development Project 3. Notice of Determination, filed and posted March 5, 2014 4. Minutes of March 4, 2014 City Council meeting; item 75A. 5. Resolution No. 2014- (item 75B, pp. 301 -317 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA CERTIFYING FINAL ENVIRONMENTAL IMPACT REPORT NO. 2011 -01 AND APPROVING THE MITIGATION MONITORING PROGRAM; APPROVING VARIANCE NOS. 2012 -04(A) AND 2012 -04(B) AS CONDITIONED; AND, APPROVING VESTING TENTATIVE TRACT MAP NO. 2012 -02 (COUNTY MAP NO. 17231) AS CONDITIONED FOR THE PROPERTY LOCATED AT 1584 EAST SANTA CLARA AVENUE. 6. Resolution No. 2014- (item 75B, pp. 535 -546 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ADOPTING FINDINGS PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT; CERTIFYING FINAL ENVIRONMENTAL IMPACT REPORT NO. 2011 -01 (SCH# 2008041172); ADOPTING THE MITIGATION MONITORING PROGRAM; APPROVING VARIANCE NOS. 2012 -04(A) AND 2012 -04(B) AS CONDITIONED; AND, APPROVING VESTING TENTATIVE TRACT MAP NO. 2012 -02 (COUNTY MAP NO. 17231) AS CONDITIONED FOR THE PROPERTY LOCATED AT 1584 EAST SANTA CLARA AVENUE City of Santa Ana's Notice of Public Hearing re September 2, 2014, Before the City Council, Santa Ana, California 8. Request for Council Action dated September 2, 2014, item 75B, pp. 1 -2 9. Agenda for the City Council Meeting of September 2, 2014 10. Request for Planning Commission Action dated February 10, 2014, item 75B, pp. 3 -534 SNM:431414125.1