TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director
1. Subject
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An Appeal of the Planning Commission’s Denial of Appeal No. 0565-24, which affirmed the Community Development Director’s Determination that the application for the “Village at Orange” filed by the Orange JCP Project Owner, LLC and designated as Tentative Tract No. 0053-23, Major Site Plan Review No. 1140-23, and Design Review No. 5123-23 (“Application”) was incomplete. Appeal No. 0566-24.
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2. Summary
The Orange JCP Project Owner, LLC, represented by Peter Vanek, (Appellant) is appealing the Planning Commission’s denial of Appeal No. 0565-24 affirming the City’s determination that the application for the proposed project is incomplete. As background, the proposed project (the Village District at Orange) is a request to residentially develop 7.8 acres on the former JC Penny Site at the Village at Orange mall with 167 for sale condominiums. The proposed project includes a subsequent application for 42 below market rate deed restricted (at 80% AMI) accessory dwelling units with kitchenettes. With the accessory dwelling units, the project total is 209 units. The proposed project is located at 2200 N Tustin Street. The Application was deemed incomplete because it did not include a request for a Zone Change and General Plan Amendment.
3. Recommended Action
recommendation
Adopt Resolution No. 11557. A Resolution of the City Council of the City of Orange denying Appeal No. 0566-24 and affirming the decision of the Planning Commission with respect to the determination made by the Community Development Director under Section 17.08.030(E) of the Orange Municipal Code that the application filed by the Orange JCP Project Owner, LLC is incomplete.
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4. Fiscal Impact
None.
5. Strategic Plan Goals
Goal 1: Provide for a safe community
d: Assure the development of the City occurs in a fashion that maximizes public safety.
6. Discussion and Background
The Orange Municipal Code (OMC) requires that a completeness determination be made by the Community Development Director of the City. (Section 17.08.030(E))
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.
A timely appeal of the Planning Commission’s May 20, 2024 determination was received by the City on June 3, 2024. In anticipation of a potential appeal of the Planning Commission’s determination and in light of the requirements contained in the Permit Streamlining Act requiring a final written determination not later than 60 days from the written appeal, on May 23, 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.
The Appellant’s appeal form, and supporting documentation, for both the City Council and Planning Commission appeals, is included with this appeal (Attachment 2 & 20). Although this appeal pertains exclusively to the Planning Commission’s decision on the completeness determination made by the Community Development Director and does not pertain to the underlying project itself, staff has also included all plans for the project submitted throughout the application process that was begun in June of 2023 (Attachments 9,13, 18a and 18b).
Chronology. As background, the following is a chronology of relevant dates:
On June 5, 2023, the Appellant submitted a formal application for the “Village at Orange” on the City’s Land Use Project Application Information Packet (City’s Application Form) (Attachment 7).
Generally, Appellant has proposed a total 209-unit development consisting of 167 for-sale condominiums, 42 units in the form of accessory dwelling units (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) (Attachment 8).
The City responded in writing on July 5, 2023, within 30 days of the June 5, 2023 Submittal, that the Project application was “incomplete.” The Application was deemed incomplete, in part, because the Appellant failed to provide Plan Content Requirements and fee deposits specifically for a General Plan Amendment (GPA) and Zone Change (ZC) (First Incompleteness Letter). The City provided exhaustive comments to the Appellant in order to ensure expeditious processing (Attachment 10).
The Appellant submitted additional materials on September 5, 2023 (September 5, 2023 Resubmittal) (Attachment 13). 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 (Attachment 12). City Hall was closed on Friday, September 1, 2023, as part of its regular 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 (Attachment 14 & Attachment 15).
Within 30 days of the September 5, 2023 Resubmittal, on October 5, 2023, the City responded in writing 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) (Attachment 16).
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 17). However, the February 26 Resubmittal did not include application for a GPA or ZC.
Within 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) (Attachment 19).
On April 10, 2024, the Appellant appealed the determination of incompleteness contained in the Third Incompleteness Letter. On May 20, 2024, the Planning Commission denied Appeal No. 0565-24 by adoption of Resolution No. PC 17-24 (Attachments 3, 4, 5, 6, and 20). That determination was appealed on June 3, 2024. The decision of the Planning Commission is the subject of the appeal now pending before the City Council.
Pursuant to OMC Section 17. 08.030(E), 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. While not relevant, a number of points were raised by the Appellant at the Planning Commission. Those points are addressed below.
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, which sets forth requirements, is available online to all applicants.
Appellant submitted numerous plans and supporting materials required in the Land Use Project Application Information Packet, beginning at Page 4, such as the Landowner’s Affidavit, Letter of Explanation/Justification, Proof of Property Ownership, Preliminary Title Report and Legal Description. Appellant 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, and the Application did not 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 stated 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 21). As an official communication of the City, Chad Ortlieb’s signature represents the determination of the City, whose representative is the Community Development Director.
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 State law prevents the City from processing 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.
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.
7. ATTACHMENTS
• Attachment No. 1: City Council Resolution No. 11557
• Attachment No. 2: Appeal to City Council and Planning Commission
• Attachment No. 3: Planning Commission Resolution No. PC 17-24 (not yet signed)
• Attachment No. 4. Planning Commission Staff Report from May 20, 2024
• Attachment No. 5: Draft Planning Commission Meeting Minutes from May 20, 2024
• Attachment No. 6: Public Comment from May 20, 2024 Planning Commission Meeting
• Attachment No. 7: City’s Application Form (blank)
• Attachment No. 8: June 5, 2023 Submittal
• Attachment No. 9: June 5, 2023 Project Plans (First Submittal)
• Attachment No. 10: First Incompleteness Letter
• Attachment No. 11: September 5, 2023 Email From Chad Ortlieb to Peter Vanek
• Attachment No. 12: September 1, 2023 Email from Peter Vanek to Chad Ortlieb
• Attachment No. 13: September 5, 2023 Project Plans (Second Submittal)
• Attachment No. 14: Memo Memorializing 9/80 Schedule
• Attachment No. 15: City Hall 2023 Calendar
• Attachment No. 16: Second Incompleteness Letter
• Attachment No. 17: February 26, 2024 Resubmittal
• Attachment No. 18a: February 26, 2024 Project Plans with Trash Carts (Third Submittal)
• Attachment No. 18b:February 26, 2024 Project Plans with Trash Bins (Third Submittal)
• Attachment No. 19: Third Incompleteness Letter
• Attachment No. 20: Appeal to Planning Commission Application
• Attachment No. 21: Memo Memorializing Delegation of Authority