TO: Chair and Members of the Planning Commission
THRU: Russell Bunim, Community Development Director
Anna Pehoushek, Assistant Community Development Director
FROM: Chad Ortlieb, Principal Planner
1. Subject
title
Appeal of a letter deeming the “Village District at Orange” project Application (“Application”), located at 2200 N. Tustin Street, as incomplete; Appeal No. 0565-24 (Tentative Tract No. 0053-23, Major Site Plan Review No. 1140-23, and Design Review No. 5123-23).
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2. Summary
The Orange JCP Project Owner LLC, represented by Peter Vanek, (“Applicant/Appellant”) appeals the Community Development Director’s March 27, 2024, letter which deemed the “Village District at Orange” Application as incomplete (“Appeal”).
3. Recommended Action
recommendation
Adopt Planning Commission Resolution No. PC 17-24 entitled:
A Resolution of the Planning Commission denying Appeal No. 0565-24 and upholding the Community Development Director’s letter deeming the “Village District at Orange” Application as incomplete.
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4. AUTHORIZING GUIDELINES
Orange Municipal Code (OMC) Section 17.08.050(A) authorizes the Planning Commission to review and take action on an appeal of any action taken by the Community Development Director in the administration or enforcement of the provisions of Chapter 17.08. Section 17.08.030(E) requires that a completeness determination be made by the Community Development Director.
5. project background
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Applicant: |
The Orange JCP Project Owner, LLC, Peter Vanek |
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Property Owner |
The Orange JCP Project Owner |
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Property Location |
2200 N. Tustin Street |
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Existing General Plan Land Use Element Designation |
General Commercial Max. 1.0 FAR (CG) |
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Existing Zoning Classification |
Limited Business Tustin Redevelopment Project Area (C-TR) |
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Specific Plan/PC |
None |
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Site Size |
7.8 Acres |
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Circulation |
Access to the site is predominantly from Canal Street. Secondary access could occur via circulation through the greater mall site from N. Tustin Street, E. Heim Avenue, and E. Meats Avenue. |
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Existing Conditions |
The site consists of an 85,650-square-foot building formerly occupied by JC Penney connected to the vacant Village at Orange Mall. The remainder of the separate 7.8 acre parcel consists of a parking lot and associated landscaping. |
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Surrounding Land Uses and Zoning |
North - Parking lot and the Walmart building. South - Parking lot and the Sears building. West - N. Canal Street followed by single family residences. East - The vacant Village at Orange Mall and remaining exterior tenants followed by N. Tustin Street The single-family residences west of the site are zoned R-1-7 and R-1-10. The other surrounding uses are zoned C-TR |
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Previous Applications/Entitlements |
Applications currently in processing include Tentative Tract No. 0053-23, Major Site Plan Review No. 1140-23, and Design Review No. 5123-23. |
6. PROJECT DESCRIPTION
The underlining development consists of 167 for-sale condominiums on 7.8 acres at the former JC Penny Site, located at the Village at Orange Mall (2200 N Tustin Street). The development includes a subsequent request for 42 below market rate, deed restricted accessory dwelling units (“ADUs”) with kitchenettes. With the accessory dwelling units, the development would total 209 units. Staff is not providing further description of the development or including any of the plans because the appeal pertains exclusively to the City’s March 27, 2024 letter deeming the Application as incomplete.
7. analysis and statement of the issues
As background, the following is a chronology of relevant dates:
The Appellant has submitted a formal application for the “Village at Orange” on the City’s Land Use Project Application Information Packet (“City’s Application Form”) (See Attachment 2).
Generally, Appellant has proposed a total 209-unit development consisting of 167 for-sale condominiums, 42 units in the form of ADUs proposed to be deed-restricted as affordable units, a recreation center, and a 1,500 square foot restroom and meeting room (“Project”). Appellant submitted the Project on the City’s Application Form on June 5, 2023 (“June 5, 2023 Submittal”). (See Attachment 3)
Within thirty (30) days of the June 5, 2023 Submittal, on July 5, 2023, the City responded to that June 5, 2023 Submittal by written correspondence and indicated that the Project application was “incomplete.” It was incomplete based, in part, on the Appellant’s failure to provide Plan Content Requirements and fee deposits specifically for a General Plan Amendment (“GPA”) and Zone Change (“ZC”) (“First Incompleteness Letter”). The Appellant also failed to include other specified information. The City provided exhaustive comments to the Appellant in order to ensure expeditious processing. (See Attachment 4).
The Appellant resubmitted materials in furtherance of the Project on September 5, 2023 (“September 5, 2023 Resubmittal”)(See Attachment 5). Appellant sent an initial email on September 1, 2023, indicating that hard copies would be submitted “that afternoon,” following staff’s reiterating the need for an application for a GPA and ZC and indeed requesting hard copies of plans, consistent with the City’s Application Form at Page 6. (See Attachment 6) City Hall was closed on Friday, September 1, 2023, as part of its 9/80 Schedule with hard copies received and stamped by staff on Tuesday, September 5, 2023, also following the Labor Day holiday closure on September 4, 2023. (See Attachment 7 & Attachment 8)
Within thirty (30) days of the September 5, 2023 Resubmittal, on October 5, 2023, the City responded by written correspondence to the September 5, 2023 Resubmittal and indicated that the application was again “incomplete” based, in part, on the failure to provide specified information, including the failure to provide Plan Content Requirements and fee deposits specifically for a GPA and ZC. The other outstanding item was a failure to identify “trash enclosures” (required by Plan Content Requirements, Section F, on Page 16 of the City’s Land Use Project Application Information Packet). The City continued to provide additional comments, albeit in the form of additional tables (Table B and C) in order to ensure the Appellant was aware of potential development standards and concerns. (“Second Incompleteness Letter”) (See Attachment 9).
On February 26, 2024, Appellant provided the City with revised plans, identifying trash enclosures for the type of development proposed as well as alternative plans, with carts (“February 26, 2024 Resubmittal”). (See Attachment 10). However, the February 26 Resubmittal did not include application for a GPA or ZC.
Within thirty (30) days of the February 26, 2024 Resubmittal, on March 27, 2024, the City determined that Appellant’s “application remains incomplete due to the omission of submittal items and plan content as specified” in the City’s Application Form. Table A detailed the additional information required. (“Third Incompleteness Letter”) (See Attachment 11). The determination of incompleteness contained in this Third Incompleteness Letter is the subject of the appeal pending before the Planning Commission, and was filed by the Appellant on April 10, 2024 (“Appeal”) (Attachment 12).
It is staff’s position that the Application is incomplete without: (1) a request for a GPA indicating the desired General Plan Designation, (2) a request for a ZC indicating the desired Zoning classification, and (3) payment of the associated fees. As is the City’s practice, all GPA and ZC applications would be processed concurrently and expeditiously with all other requests for entitlements, including the Tentative Tract No. 0053-23, Major Site Plan Review No. 1140-23, and Design Review No. 5123-23.
1. The City’s Submittal Requirements Are Contained in the City’s Land Use Application Form.
The City’s Land Use Project Application Information Packet contains the City’s Submittal Checklist required by Government Code Section 65940. The Table of Contents, at Page i, show the City’s “Submittal Requirements,” as contained on Pages 4-10 and “Plan Content” Requirements, as contained on Pages 11-17, with each checklist containing the City’s requirements for processing development applications. The City’s Land Use Project Application Information Packet is available online.
The City’s Land Use Application was available to the Appellant on June 5, 2023, and thereafter. (See Attachment 13). It clearly sets out the City’s requirements. Indeed, Appellant submitted numerous plans and supporting materials listed, beginning at Page 4, such as the Landowner’s Affidavit, Letter of Explanation/Justification, Proof of Property Ownership, Preliminary Title Report and Legal Description. It also submitted the applicable Site Plan requirements, including a Grading Plan (required at B on Page 6) and Fire Master Plan (required at H, at Page 8).
2. City Timely Responded to the Submittal and All Resubmittals
The City timely responded to the June 5, 2023 Submittal and September 5, 2023 Resubmittal. The deadline for a completeness determination for the June 5, 2023 Submittal was July 5, 2023. The City’s First Incompleteness Letter was sent to the Appellant on July 5, 2023. The deadline for the September 5, 2023 Resubmittal was October 5, 2023. The City’s Second Incompleteness Letter was sent to the Appellant on October 5, 2023. City Hall was closed on Friday, September 1, 2023 (due to the 9/80 Schedule) and Monday, September 4, 2023 (Labor Day Holiday). No submittals could have been received on that date. Communication between Chad Ortlieb and Mr. Vanek confirm this.
The City responded to the February 26, 2024 Resubmittal on March 27, 2024, also within the thirty days required by State law and the OMC.
3. The February 26, 2024 Resubmittal, the Submittal, and the Previous Resubmittals Were Incomplete.
The February 26, 2024 Resubmittal is incomplete (as was the Submittal and previous Resubmittal) because the Appellant did not indicate, as required on Page 2, Section 6 Table (“Project Description/Request”) the Proposed Land Use Designation, nor did they include in any Plan submittals, including the February 26, 2024 Resubmittal, the “Existing” and “Proposed” General Plan land designation or Zoning classification, as required on Page 15 (3rd and 4th bullet points on that Page) of the City’s Land Use Application.
The lack of an application for a GPA and ZC has been included in all three incompleteness letters sent to the appellant. For the September 5, 2023 Resubmittal, the City had continued to note the requirement for a GPA and ZC to accommodate the proposed Project. It also noted (as had been previously listed in the First Incompleteness Letter) that a Landscape Plan (listed on Page 6, at (C), third bullet, of the Submittal Items on the City’s Application Form), a (revised) Roof Plan (Page 14 at (E)) and Lighting Requirements (noted as Illumination, at Page 13) were all required and were all listed in the City’s Application Form, as noted. Staff also required identification of the appropriate trash enclosures (Page 16, third bullet, as part of Section F- Site Plans of Plan Content Requirements of the City’s Application Form). It is clear that the September 5, 2023 Resubmittal was also incomplete, although not at issue for this Appeal.
As to the February 26, 2024 Resubmittal, had the Appellant provided the required information and applied for the GPA and ZC, an application fee would have been required to be submitted as well. No application and no fees were received by the City. We note the importance of a General Plan designation and Zone Change: First, the City is required to apply appropriate development standards to each project. Although similarities exist between distinct zoning classifications, each classification has differing requirements. Second, without a GPA and ZC, the property at issue would become a legal (or illegal) non-conforming use. Such a result would be contrary to State law and public policy.
4. All of the City’s Incompleteness Letters Were Sent on Behalf of the Community Development Director by their Designee
The City’s Third Letter of Incompleteness, as well as previous letters of incompleteness, was and were executed by Chad Ortlieb on behalf of the City and, specifically, under the authority provided to the Community Development Director by the OMC. Appellant is incorrect that the letter was “sent on behalf of Chad Ortlieb.” The letter was signed by Chad Ortlieb because Chad Ortlieb is the planner assigned to this Application and the Community Development Director’s designee, based on a delegation of the Community Development Director’s authority granted to him in the OMC. (Attachment 14) It is the City’s standard practice to have designees prepare and execute letters on behalf of the City. (See Attachment 15). As an official communication of the City, Chad Ortlieb’s signature represents the determination of the City, whose representative is the Community Development Director. The City did not run afoul of State law or its own Code by having Chad Ortlieb execute an incompleteness letter.
5. Whether the So-Called Builder’s Remedy Contained in Government Code Section 65589.5(d) of the Housing Accountability Act (“HAA”) Applies is Irrelevant; Even So-Called Builder’s Remedy Applications Require Processing of General Plan and Zoning Amendments
Nothing in the law provides that a City cannot process in a normal fashion an application that purports to have protections under the so-called Builder’s Remedy provision of the Housing Accountability Act (“HAA”). Government Code Section 65589.5(d) provides only that a city cannot deny or condition in a manner to make infeasible certain projects that contain a specified percentage of affordable housing without making one of five enumerated findings set out by the law.
The City is not precluded from requiring that a project purporting to meet the criteria of the law submit, at minimum, the desired General Plan designation and Zoning classification, and fees. This has been the City’s consistent position since the June 5, 2023 Submittal because so-called Builder’s Remedy projects, like all other development applications, must still be processed in a manner that provides both staff and applicant clarity on appropriate development standards and creates, if/when approved, planning standards that are internally consistent and properties that are correctly designated and classified.
In addition, there is no separate application to submit as the City’s Application Form is a “master” application. Applicant/Appellant was simply required to indicate the desired General Plan designation and Zoning Classification and pay the required fees. All entitlements would be processed and heard concurrently, with no additional delay for these additional requests.
Submitting a GPA and ZC is required and ensures staff can continue to provide meaningful feedback that will bring more housing to the City, which has a demonstrated need, as contained in its substantially compliant 2021-2029 Housing Element.
8. public notice
On May 9, 2024, the City posted notification of the public meeting to hear and decide the subject appeal in at least three public places within City boundaries, including one place in the area directly affected by the proceeding, pursuant to Section 17.08.040(4)(b).
9. ADVISORY BOARD ACTION
Staff Review Committee:
The Staff Review Committee reviewed the Application on June 14, 2023, September 20, 2023 and March 13, 2024.
10. ATTACHMENTS
• Attachment No. 1: Planning Commission Resolution No. PC 17-24
• Attachment No. 2: City’s Application Form (blank)
• Attachment No. 3: June 5, 2023 Submittal
• Attachment No. 4: First Incompleteness Letter
• Attachment No. 5: September 5, 2023 Email From Chad Ortlieb to Peter Vanek
• Attachment No. 6: September 1, 2023 Email from Peter Vanek to Chad Ortlieb
• Attachment No. 7: Memo Memorializing 9/80 Schedule
• Attachment No. 8: City Hall 2023 Calendar
• Attachment No. 9: Second Incompleteness Letter
• Attachment No. 10: February 26, 2024 Resubmittal
• Attachment No. 11: Third Incompleteness Letter
• Attachment No. 12: Appeal
• Attachment No. 13: Memo Declaring City Application Form has been on the City’s Website Since June 5, 2023.
• Attachment 14: Memo Memorializing Delegation of Authority
• Attachment No. 15: Incompleteness Letters from Planners Monique Schwartz, Ryan Agbayani, Tiffany Chhan and Chad Ortlieb (as Senior Planner).