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CC SR 20250218 01 - 5323 Ironwood Appeal PUBLIC HEARING Date: February 18, 2025 Subject: Consideration and possible action to conduct an appeal requested by Verdes Estates Inc. of the Planning Commission’s decision upholding the Director of Community Development’s determination for property located at 5323 Ironwood Street (Case No. PLZC2024 -0002). Recommendation: Adopt Resolution No. 2025-__ , A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES THEREBY DENYING AND UPHOLDING THE PLANNING COMMISSION’S DETERMINATION THAT THE PROPOSED PROJECT WHICH INCLUDES 482 RESIDENTIAL UNITS (1,173,927 SQUARE FEET) DOES NOT QUALIFY FOR SB35/423 MINISTERIAL REVIEW OR THE EXEMPTION FROM CONSISTENCY WITH THE CITY’S GENERAL PLAN DESIGNATION OR ZONING SET FORTH IN GOVERNMENT CODE, SECTION 65589.5(D)(5) THEREFORE REQUIRING THE FOLLOWING LAND USE ENTITLEMENTS: GENERAL PLAN AMENDMENT, ZONE CHANGE, CERTIFICATE OF COMPLIANCE, MAJOR GRADING PERMIT, VARIANCE, ENVIRONMENTAL REVIEW AND MAJOR SITE PLAN REVIEW AS REQUIRED BY THE RANCHO PALOS VERDES MUNICIPAL CODE TO CONSIDER THE PROPOSED PROJECT, AS DESCRIBED HEREIN, FOR THE PROPERTY LOCATED AT 5323 IRONWOOD STREET (CASE NO. PLZC2024-0002). 1. Report of Notice Given: City Clerk 2. Declare Public Hearing Open: Mayor Bradley 3. Request for Staff Report: Mayor Bradley 4. Staff Report & Recommendation: Brandy Forbes, AICP, Director of Community Development and Jessica Bobbett, Senior Planner 5. Council Questions of Staff (factual and without bias): 6. Testimony from members of the public: Principal Parties 10 Minutes Each. The appellant or their representative speaks first and will generally be allowed ten minutes. If the applicant is different from the appellant, the applicant or their representative will speak following the appellant and will also be allowed ten minutes to make a presentation. Appellant/Applicant: Verdes Estates, Inc. Mayor Bradley invites the Applicant to speak. (10 mins.) Testimony from members of the public: The normal time limit for each speaker is three (3) minutes. The Presiding Officer may grant additional time to a representative speaking for an entire group. The Mayor also may adjust the time limit for individual speakers depending upon the number of speakers who intend to speak. 7. Rebuttal: Mayor Bradley invites brief rebuttals by Appellant/Applicants. (5 mins) Normally, the applicants and appellants will be limited to a five (5) minute rebuttal, if requested after all other interested persons have spoken. 8. Council Questions of Appellant and Applicants (factual and without bias): 9. Declare Hearing Closed/or Continue the Public Hearing to a later date: Mayor Bradley 10. Council Deliberation: The Council may ask staff to address questions raised by the testimony, or to clarify matters. Staff and/or Council may also answer questions posed by speakers during their testimony. The Council will then debate and/or make motions on the matter. 11. Council Action: The Council may: vote on the item; offer amendments or substitute motions to decide the matter; reopen the hearing for additional testimony; continue the matter to a later date for a decision. 01203.0049/1049736.1 CITY COUNCIL MEETING DATE: 02/18/2025 AGENDA REPORT AGENDA HEADING: Public Hearing AGENDA TITLE: Consideration and possible action to conduct an appeal requested by Verdes Estates Inc. of the Planning Commission’s decision upholding the Director of Community Development’s determination for property located at 5323 Ironwood Street (Case No. PLZC2024-0002). RECOMMENDED COUNCIL ACTION: (1) Adopt Resolution No. 2025-__ , A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES THEREBY DENYING AND UPHOLDING THE PLANNING COMMISSION’S DETERMINATION THAT THE PROPOSED PROJECT WHICH INCLUDES 482 RESIDENTIAL UNITS (1,173,927 SQUARE FEET) DOES NOT QUALIFY FOR SB35/423 MINISTERIAL REVIEW OR THE EXEMPTION FROM CONSISTENCY WITH THE CITY’S GENERAL PLAN DESIGNATION OR ZONING SET FORTH IN GOVERNMENT CODE, SECTION 65589.5(D)(5) THEREFORE REQUIRING THE FOLLOWING LAND USE ENTITLEMENTS: GENERAL PLAN AMENDMENT, ZONE CHANGE, CERTIFICATE OF COMPLIANCE, MAJOR GRADING PERMIT, VARIANCE, ENVIRONMENTAL REVIEW AND MAJOR SITE PLAN REVIEW AS REQUIRED BY THE RANCHO PALOS VERDES MUNICIPAL CODE TO CONSIDER THE PROPOSED PROJECT, AS DESCRIBED HEREIN, FOR THE PROPERTY LOCATED AT 5323 IRONWOOD STREET (CASE NO. PLZC2024-0002). FISCAL IMPACT: The Appellant paid the $3,100 appeal fee to the City. If the City Council grants the appeal, the entire $3,100 appeal fee will be refunded to Appellant. If an appeal results in a modification to the project, other than changes specifically requested in the appeal, half of the appeal fee ($1,550) shall be refunded to Appellant. If the City Council denies the appeal, the Appellant will not be refunded any portion of the appeal fee. VR Amount Budgeted: N/A Additional Appropriation: N/A Account Number(s): 101-300-0000-3218 (General Fund – Revenue – Plan Misc. Fee) VR ORIGINATED BY: Jessica Bobbett, Senior Planner REVIEWED BY: Brandy Forbes, AICP, Director of Community Development 1 APPROVED BY: Ara Mihranian, AICP, City Manager ATTACHMENTS & EXHBITS (PROVIDED IN HYPER LINKS): The following attachments can be viewed via the links embedded in the staff report: A. Resolution No. 2025-__(Page A-1). B. Appeal letter and materials dated October 21, 2024 C. Public Correspondence D. Planning Commission Staff Report dated October 8, 2024 Planning Commission Resolution 2024-22 E. Planning Commission Slide Presentation dated October 8, 2024 F. Letter from Staff dated June 5, 2024 G. Letter from Staff dated July 18, 2024 H. Letter from Staff dated August 19, 2024 I. Email Correspondence between City Staff and Appellant from May 12, 2024 to October 1, 2024 J. Letter from City Staff dated October 25, 2024 K. Letter from City Staff dated November 15, 2024 BACKGROUND: On January 22, 2024, the Appellant, Verdes Estates Inc., submitted a preliminary application, proposing 482 units (385 market rate and 97 affordable units, i.e. 20% of the total units) comprised of 641,193 square feet of building area on a vacant property located at 5323 Ironwood Street. At the time of this submittal, the City was still in the pr ocess of revising its Housing Element and had not adopted a Housing Element that was in substantial compliance with State Housing Laws, according to the Department of Housing and Community Development (“HCD”). A preliminary application is for housing development projects seeking vesting rights pursuant to SB 330, the Housing Crisis Act of 2019. After submitting a preliminary application to the local agency, an applicant has 180 days to submit a full application, or the preliminary application will expire. The pertinence is of a preliminary application being submitted prior to the City having a substantially compliant Housing Element, is that if at the time an application for a housing development project is deemed complete and the City does not have a Housing Element that is in substantial compliance with laws governing housing elements, then the City is not permitted to deny the project on the basis of its inconsistency with the jurisdiction’s zoning ordinance and general plan land use designation for that property, commonly referred to as the “Builder’s Remedy.” On April 16, the City Council adopted a revised Housing Element containing modifications requested by HCD. On that date, the City Council also adopted, as an urgency measure, an ordinance to establish the Mixed-Use Overlay Zone and the Residential Overlay Zone and to rezone two properties. This urgency ordinance, which became effective 2 immediately upon its adoption, served to rezone the necessary properties to implement the revised Housing Element. Accordingly, the City had adopted a Housing Element that is in substantial compliance with the applicable State Housing Laws. On April 18, 2024, the Appellant submitted a preliminary application, proposing 482 units (385 market rate, 97 affordable units) comprised of 1,173,927 square feet for the same site at 5323 Ironwood Street. On May 23, 2024, the Appellant confirmed, via email, the preliminary application dated January 22, 2024 was withdrawn (Attachment I). Additionally, there were significant changes in square footage between the January 22 , 2024 and April 18, 2024 preliminary applications, pursuant to Government Code § 65941.1(c) a new preliminary application is required. Therefore, at the time of the April 18 submission, the City’s Housing Element was substantially compliant with the relevant State Housing Laws, thus the preliminary application submitted on April 18 does not qualify for Builder’s Remedy protection. Additionally, the project does not qualify as an SB 35 project, as it is not compliant with the General Plan and Zoning Code. Based on the preliminary application materials submitted on April 18, Staff has determined the proposed project does not qualify as SB35/423 Ministerial Review. On June 5, 2024, Staff provided a letter (Attachment F) to the Appellant via email, detailing the preliminary application dated January 22, 2024 is withdrawn per the correspondence provided on May 23 and due to the new preliminary application being significantly different with regard to the square footages for each building. Following, staff corresponded with the Appellant on various occasions and ultimately, the Appellant filed an timely written appeal of the Director’s Determination on August 8, 2024. A more detailed timeline of correspondence is provided in the “Chronology of Events for Appeal Consideration” outlined below. On October 8, 2024, the Planning Commission held a duly noticed public hearing to consider the appeal, at which time all interested parties were given an opportunity to be heard and present evidence. The Planning Commission upheld the Community Development Director’s determination that the project does not qualify for SB35/423 ministerial review and denied the appeal On October 21, 2024, the requested appeal was filed by the Appellant of the Planning Commission’s decision to uphold the Community Development Director’s determination that the Appellant’s proposed project does not qualify for SB35/423 ministerial review and does not qualify for the “Builder’s Remedy” exception from compliance with the City’s General Plan and zoning set forth in Government Code, § 65589.5(d)(5). In light of the decision of the Planning Commission, for the proposed project to proceed forward , the following land use entitlements will be required: General Plan Amendment, Zone Change, Certificate of Compliance, Major Grading Permit, Variance, Environmental Review and Major Site Plan Review as required by the Rancho Palos Verdes Municipal Code (RPVMC). The Appeal is timely brought (Attachment B) by Appellant pursuant to RPVMC Chapter 17.80. The grounds upon which Appellant requests the City Council to grant its appeal 3 are described in further detail in the “Discussion” section of this report as well as staffs’ responses to the same. TheAppellant requests the City Council grant its appeal, overrule the Planning Commission’s denial, and find that its project is subject to limited ministerial review under SB35/423. Staff recommends that the City Council deny the appeal in its entirety. Planning Commission Hearing On September 19, 2024, a public notice was issued and published in the Palos Verdes Peninsula News providing notification of the Planning Commission’s consideration of the Appeal. The Planning Commission conducted a duly noticed public hearing on October 8, 2024. The October 8th Planning Commission staff report (Attachment D) and staff presentation (Attachment E) are available for review. The Planning Commission findings for denial are outlined below. Planning Commission’s Findings for Denial On October 8, 2024 the Planning Commission adopted P.C. Resolution 2024-22 (Attachment D) making the following findings to deny the project without prejudice: • While the Appellant argues that its project, as submitted, should qualify for the exception to the requirement that a project having to be consistent with the applicable zoning and general plan set forth in Government Code, § 65589.5(d)(5), “the Builder’s Remedy” and the ministerial review, and approval process set forth in Government Code § 65913.4 (“SB 35/423”), the Planning Commission found that the project does not qualify because at the time the Applicant submitted the operative preliminary application, the City had adopted a Housing Element and the required zoning to implement the Housing Element - all of which was in substantial compliance with State Housing Element Law. Based on HCD’s letter of April 5, 2024 which indicated that the City’s draft Housing Element met the statutory requirements but would not be in substantial compliance until the requisite zoning code amendments are adopted, on April 16 , 2024 City Council determined that the Negative Declaration adopted on August 11, 2022, as amended by Addendum No. 1, adequately analyzed the impacts from the adoption and implementation of the Revised Final 2021-2029 Housing Element, and following the public hearing adopted Resolution No. 2024-16 approving a General Plan Amendment for the City’s Revised Final 2021 -2029 Housing Element, a General Plan Amendment for the Land Use Element and Land Use Map, and a Local Coastal Plan (Coastal Specific Plan) Amendment to effectuate th e 2021- 2029 Housing Element. The City Council also adopted Resolution No. 2024 -17 to forward to the California Coastal Commission the amendments to the Local Coastal Program (LCP) Coastal Specific Plan and zoning map related to the 6th Cycle Housing Element actions in the Coastal Zone, consistent with State Law. 4 Additionally, in order to protect the health, safety, and welfare of the residents of the City of Rancho Palos Verdes, on April 16 the City Council unanimously adopted Urgency Ordinance No. 678U approving zoning amendments inclusive of Zoning Map amendments and development standards for Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs), to immediately effectuate the Housing Element, including rezoning sufficient sites to accommodate the City’s regional housing needs allocation by adopting the implementation actions to effectuate the City’s Revised Final 2021-2029 Housing Element. As such, the Housing Element was in substantial compliance with Housing Element Law on April 16, as indicated by HCD on April 5. Therefore, at the time of the Applicant’s April 18, 2024 preliminary application submission, the City’s Housing Element was substantially compliant with the relevant State Housing Laws, thus the preliminary application submitted on April 18 does not qualify for Builder’s Remedy protection. Additionally, the project does not qualify as an SB 35 project, as it is not compliant with the General Plan and Zoning Code. Based on the preliminary application materials submitted on April 18, the Planning Commission has determined the proposed project does not qualify for the ministerial review and approval process set forth in Government Code, section 65913,4 or the Builder’s Remedy exception set forth in Government Code, section 65589.5(d)(5). • The Appellant argues that Staff is selectively interpreting the communication regarding the filing date of the preliminary application to achieve a predetermined outcome; however, Staff has been clear in all correspondence with the Appellant, and the complete email correspondence from May 12 – October 1 is included in the staff report record (Attachment I). There is nothing selective about how Staff interpreted these communications; Appellant was very clear and unequivocal about their intentions and actions. • The Appellant argues the preliminary application submitted on April 18 was supplemental to the January 22, 2024 preliminary application. However, the preliminary application submitted on January 22 provided for 637,042 square feet of residential and 641,193 total square footage, while the one submitted on April 18 changed the anticipated square footage to 765,283 of residential space and 1,173,927 total square footage. The increase in construction square footage in the April 18 preliminary application is 54% over the construction square footage in the January 22 preliminary application, necessitating a new preliminary application pursuant to Government Code §65941.1(c) • The Appellant argues per Assembly Bill (AB) 1886, “a jurisdiction is in compliance as of the date of the Housing and Community Development department’s (HCD) letter finding the adopted housing element in substantial compliance. Any other letters do not constitute a finding of substantial compliance. Section 65585.03 of the Government Code, as added by Section 1 of this act, is declaratory of existing 5 law and does not represent a change.” However, the legislation does not apply in the circumstance where a city first submits its Housing Element to the Department of Housing and Community Development (“HCD”) for its review and approval before adopting the Housing Element. The City submitted the revised Housing Element to HCD for its review and approval which was obtained on April 5 before it adopted the Housing Element on April 16. Furthermore, the legislation states a court may also determine that a Housing Element is in substantial compliance with State Housing Element Laws. To the extent this statute is declaratory of existing law, after a city’s adoption of its Housing Element a court may determine that as of the date of that city’s adoption of the Housing Element, the Housing Element was in substantial compliance with State Housing Law. • The Appellant argues that the City’s actions are in clear violation of State Density Bonus Law, the City has not denied any incentives or waivers of development standards provided for under state Density Bonus Law, as the Appellant only recently submitted their development application. Staff is in the process of determining completeness of the application. Furthermore, Appellant’s claims regarding the City allegedly violating state Density Bonus Law are irrelevant to the Director’s determination that the project does not qualify for the SB 35 ministerial review process or the Builder’s Remedy. • The Appellant argues that the City violates the affordable Housing Streamlined process by denying this housing project, specifically by failing to act within the required timelines for tribal consultation and not providing details regarding the tribal consultation. Upon the submittal of the preliminary application dated January 22, 2024, Staff commenced the tribal consultation on February 13, 2024. Staff sent a letter requesting 10 local tribes to engage in the tribal consultation process. As a result, two tribes, Tongva Nation and Kizh Natio n, requested to engage in the tribal consult. The Kizh Nation requested to engage in tribal consult on February 23, 2024. Thereafter, on February 29, 2024, Staff emailed to inquire if the tribe would like the developer included in the consult process. Additionally, the Tongva Nation requested to engage tribal consult on April 2, 2024, and on April 22, 2024 Staff emailed to inquire if the tribe would like the developer included in the consult process. Neither tribe approved the developer’s participation in the Scoping Consultation, as required by Government Code § 65913.4(b)(2)(C). Accordingly, Staff proceeded with the required consultation process without the participation of the Appellant. Staff provided the Appellant an update, via email on July 11, 2024, noting that the tribal consultation had not yet concluded with the Kizh Nation, but provided the conditions requested by the Tongva Nation. On October 21, 2024 the Appellant filed a timely Appeal (Attachment B) pursuant to RPVMC 17.80 which included a written appeal and supporting documentation. Site Description Table No. 1 on the following page provides key characteristics of the site: 6 Table No. 1 - Site Description 5323 Ironwood Street (APN:7546-008-021) Lot Size 4.97-acre lot Existing Improvements Vacant Zoning Designation RS-A-5 General Plan Designation Residential <=1 DU/5 Acre Special Districts OC-3 Urban Appearance Overlay Control District Surrounding Land- Use Single-family residential development located to the south, west and east, and Institutional development to the north Miscellaneous Easements: County of Los Angeles for Storm Drain Purposes, County of Los Angeles for Sanitary Sewer purpose, County of Los Angeles for Fire Road Purposes, and County of Los Angeles for Storm Sewer Purposes 7 DISCUSSION: De Novo Review Notwithstanding the public hearing and determinations of the Planning Commission, the appeal hearing before the City Council is what is known as a “de novo” hearing, meaning the City Council will consider the evidence, documents, this staff report, the testimony and evidence presented during tonight’s public hearing , and other materials from the record of the previous consideration by the Planning Commission and the Community Development Director and make its own independent determination as to the merits o f this appeal as required by RPVMC §17.80.070(F) which provides: "the City Council appeal hearing is not limited to consideration of the materials presented to the Planning Commission. Any matter or evidence relating to the action on the application, regardless of the specific issue appealed, may be reviewed by the City Council at the appeal hearing." In conducting an appeal hearing, the City Council may: 1. Grant, in whole or in part, the appeal upon provision of applicable findings determining that the application qualifies for SB 35/423 ministerial review for the property located at 5323 Ironwood Street; or 2. Deny the appeal, in whole or in part, without prejudice, upon the finding that applicable findings have been correctly made; or 3. Remand the matter back to either the Planning Commission or Community Development Department with directions to further consider the appeal and application in light of the evidence presented at tonight’s appeal hearing. The next part of the report includes the statutory framework and the project chronology, which provides context to the Appellant’s appeal which is described in more detail below. Statutory Framework The Director’s and Planning Commission’s determination that the Project as proposed requires an amendment to the City’s General Plan and a rezone involves the application of three interrelated statutes, Government Code § 65589.5, known as the “Housing Accountability Act, (“HAA”), Senate Bill 35 (amended by SB 423), codified as Government Code § 65913.4 (“SB 35”), and Government Code § 65941.1. The Housing Accountability Act, Government Code § 65589.5 The HAA regulates a city’s processing, consideration and approval/denial of a project that qualifies as a Housing Development Project, such as the Appellant’s Project. Subsection (d) sets forth the reasons a city may deny a Housing Development Project. Of relevance here, subsection (d)(5) states that a city may deny a development project if: 8 The housing development project or emergency shelter is inconsistent with both the jurisdiction's zoning ordinance and general plan land use designation as specified in any element of the general plan as it existed on the date the application was deemed complete, and the jurisdiction has adopted a revised housing element in accordance with Section 65588 that is in substantial compliance with this article. For purposes of this section, a change to the zoning ordinance or general plan land use designation subsequent to the date the application was deemed complete shall not constitute a valid basis to disapprove or condition approval of the housing development project or emergency shelter. (Underlining added for emphasis) The HAA is included within Article 10.6 of Chapter 3 of the Government Code which governs Housing Elements. Accordingly, this section has been interpreted as stating that if at the time an application for a Housing Development Project is deemed complete an d the city in which the Housing Development Project is proposed does not have a Housing Element that is in substantial compliance with laws governing housing elements, then the city is not permitted to deny the project on the basis of its inconsistency wi th the jurisdiction’s zoning ordinance and general plan land use designation for that property. Subsection (d)(5) is commonly referred to as the “Builder’s Remedy.” Furthermore, if an applicant files a preliminary application that complies with the requirements of Government Code § 65941.1 (discussed below), then the Housing Development Project is subject only to the ordinances, policies, and standards adopted and in effect when the preliminary application was submitted. (Government Code § 65589.5(o).) SB 35, Government Code § 65913.4 This section provides for a ministerial review and approval process for projects that include a specified affordability component, that will comply with the statute’s requirements, and where agreement is reached with relevant tribes regarding the project’s potential impacts to Tribal Cultural Resources with the appropriate mitigation of those potential impacts. Subsection (a) sets forth the requirements for qualifying projects. Of relevance here is the requirement set forth in subsection (a)(2)(C)(I) and (II) which require the property to be zoned and have a General Plan land use designation that permits the requested residential use. However, this limitation does not apply to Builder’s Remedy projects. An applicant provides a city of notice that it intends to proceed under § 65913.4 by submitting a preliminary application that complies with Government Code § 65941.1. (Government Code, section 65913.4(b)(1)(A)(i).) Additionally, SB 35 provides that the affordability component for SB 35 projects in a city that does not have a substantially compliant Housing Element is 10% (affordability is measured differently depending on whether the units are for rent or sale) (Gov’t Code § 65913.4(a)(4)(B)(i)). However, once the city has a substantially compliant Housing 9 Element, the affordability component jumps to 50%, in a city which has issued building permits for “fewer units of housing [for] either very low income or low-income households by income category than were required for the regional housing needs assessment [RHNA] cycle for that reporting period.” Gov’t Code § 65913.4(a)(4)(B)(ii). (The City has not met its RHNA number of low income housing building permit issuance.) Subsection (b) also sets forth the requirements for completing a scoping consultation with any California Native American tribe that is traditionally and culturally affiliated with the geographic area of the proposed development. The purpose of the scopin g consultation is to reach agreement on whether the project may impact Tribal Cultural Resources and, if the project may impact Tribal Cultural Resources, reach agreement as to mitigation measures to avoid those impacts. The scoping consultation is strictly between the tribe and the city, and the project proponent does not participate unless certain requirements are met, including the tribe approves of the project proponent’s participation in the scoping consultation. (Subsection (b)(1)(C)(iii). The project proponent may submit a development application only if the scoping consultation results in agreement between the tribe and the city that the project will not impact a Tribal Cultural Resource or, if there is a potential impact, an agreement on mitigation measures to avoid or substantially lessen the impacts. (Subsection (b)(2)(C)). Government Code § 65941.1 Subsection (a) sets forth the information that must be provided to a city in order to have a compliant preliminary application. Such information includes (1) the specific location of the project, (2) any existing uses on the project site, (3) a site plan showing the location on the property, elevation showing design, color, and material, and the massing, height and approximate square footage of each building that is to be occupied, (4) the proposed land uses by number of units and square feet of residentia l and nonresidential development, and (5) information regarding environmental conditions on the project site. Of relevance here, subsection (c) states, After submittal of all of the information required by subdivision (a), if the development proponent revises the project such that the number of residential units or square footage of construction changes by 20 percent or more, exclusive of any increase resulting from the receipt of a density bonus, incentive, concession, waiver, or similar provision, the housing development project shall not be deemed to have submitted a preliminary application that satisfies this section until the development proponent resubmits the information required by subdivision (a) so that it reflects the revisions. For purposes of this subdivision, “square footage of construction” means the building area, as defined by the California Building Standards Code (Title 24 of the California Code of Regulations). (underlined added for emphasis) Chronology of Events for Appeal Consideration 10 The following sets forth a chronology of events pertaining to the Appellant’s submittal of its two preliminary applications, the tribal scoping consultation process, and the events leading up to the City Council’s adoption of its Housing Element on April 16, 2024: • January 22, 2024 – The Appellant submitted a preliminary application, proposing 482 units (385 market rate and 97 affordable units, i.e. 20% of the total units) comprised of 641,193 square feet of building area on property located at 5323 Ironwood Street. At the time of this submittal, the City was still in the process of revising its Housing Element and had not adopted a Housing Element that was in substantial compliance with State Housing Laws, according to HCD. • February 7, 2024 – After the required seven-day posting and circulation of the document, the City submits final revised Housing Element to the HCD for its formal review. • February 13, 2024 – The City commenced the tribal consultation process on the preliminary application pursuant to Government Code § 65913.4, commonly known as SB 35 (Gov’t Code § 65913.4(b)). • March 14, 2024 – HCD Staff sent an email to the Director indicating that HCD has no further comments regarding revisions to the Revised Housing Element. • April 5, 2024 –HCD provided a letter to Staff detailing that the Housing Element addressed most of the statutory requirements, but cannot be found in full compliance until the City has completed the Zoning Code and Zoning Map Amendments. • April 16, 2024 –The City Council adopted a revised Housing Element containing modifications requested by HCD. On that date, the City Council also adopted as an urgency measure an ordinance to establish the Mixed -Use Overlay Zone and the Residential Overlay Zone and to rezone two properties. This urgency ordinance, which became effective immediately upon its adop tion, served to rezone the necessary properties to implement the revised Housing Element. Accordingly, the City had adopted a Housing Element that is in substantial compliance with the applicable State Housing Laws. • April 18, 2024 – The Appellant submitted a preliminary application, proposing 482 units (385 market rate, 97 affordable units) comprised of 1,173,927 square feet for the same site at 5323 Ironwood Street. • May 12, 2024 – The Appellant emailed Staff for clarification on the SB35 submittal checklist. • May 15, 2024 – Staff emailed the Appellant, noting that the tribal consultation was still in progress and to provide a list of questions in writing regarding the submittal requirements. • May 20, 2024 – The Appellant noted that the preliminary application was submitted on April 17 1 [sic] and therefore the 30-day deadline for the City to notify any affiliated Tribes had now passed. Additionally, the Appellant inquired about the requested format for the application submittal. 1 The email from the Appellant submitting the new preliminary application was actually dated April 18, 2024. 11 • May 21, 2024 – Staff emailed the Appellant inquiring if the preliminary application submitted April 18 was a new application or a modification to the existing preliminary application. • May 22, 2024 – The Appellant emailed Staff noting the April 18 submittal was a new preliminary application. • May 22, 2024 – Staff emailed the Appellant to confirm if the earlier preliminary application was being withdrawn and replaced with the April 18 submittal. • May 23, 2024 – The Appellant confirmed via email the preliminary application dated January 22 was withdrawn. • June 3, 2024 – The Appellant emailed Staff requesting to use the preliminary application submitted January 22. • June 5, 2024 – Staff provided a letter (Attachment F) to the Appellant via email, detailing the preliminary application dated January 22, is withdrawn per the correspondence provided on May 23 and due to the new preliminary application being significantly different with regard to the square footages for each building. • June 7, 2024 – the Appellant emailed Staff requesting that the preliminary application submitted April 18 be considered a modification to the January 22 preliminary application, along with supplemental information. • June 12, 2024 - HCD provided a letter to Staff confirming that the City’s Housing Element adopted April 16, 2024 and completed actions (Zoning Amendments to Increase Housing Development Potential) met the statutory requirements as described in the April 5, 2024 HCD letter, and therefore is in substantial compliance with State Housing Element Law. • July 2, 2024 – the Appellant met with Staff at the public counter. Staff noted that the tribal consultation was still in progress. • July 11, 2024 – The Appellant emailed Staff requesting the status of the tribal consultation. • July 11, 2024 – Staff emailed the Appellant that the tribal consultation was still in progress. Staff noted that should the Appellant wish to submit an application prior to the conclusion of the tribal consultation, the project would be processed per the requirements of the RPVMC. Staff provided a project fee statement and relevant submittal materials. Staff noted that following the conclusion of the tribal consultation, should it be determined that the proposed project meets all SB35 requirements, the pertinent fees would be refunded. • July 15, 2024 – The Appellant emailed Staff noting the project was based on SB35/423 and Housing Accountability Act Builder’s Remedy, therefore certain planning entitlements and discretionary reviews would not be required. The Appellant provided an updated copy of the fee statement with strikethrough for the fees they felt were not applicable. • July 18, 2024 – Staff provided a letter (Attachment G) to the Appellant reiterating that the preliminary application submitted on January 22 was withdrawn and resubmitted as a new preliminary application on April 18. Staff noted that at the time of the April 18 submission, the City had an adopted Housing Element that was substantially compliant with State Housing Element Law, thus the project does not qualify for Builder’s Remedy protection. Additionally, the project does not qualify 12 as an SB 35 project, as it is not compliant with the General Plan and Zoning Code. Staff noted the Appellant can submit the project for review by the Planning Division, pending payment of the unedited City invoice provided on July 11, 2024. • July 29, 2024 – The Appellant emailed Staff requesting to appeal the decision outlined in the July 18, 2024 correspondence. • August 5, 2024 – Staff provided to the Appellant, via email, instructions to process the appeal. • August 8, 2024 – Staff received a timely written Appeal Letter with fee from the Appellant /Owner at 5323 Ironwood Street. • August 19, 2024 – Staff provided a letter (Attachment H) to the Appellant via email, noting Staff is in receipt of the filed Appeal. • August 27, 2024 – The Appellant provided a letter via email with supplemental Appeal information. • September 12, 2024 – A public notice announcing the Planning Commission’s consideration of the appeal on October 8, 2024, was provided to the Appellant, property owners within a 500-foot radius of the project site, and interested parties, and was published in the Palos Verdes Peninsula News. • September 25, 2024 – The Appellant requested a link to pay the invoice dated July 10, 2024. • September 30, 2024 – The Appellant provided a letter via email with supplemental Appeal information. • October 1, 2024 – Staff provided the link for payment via email. • October 1, 2024 – The Appellant paid the fee for consideration of the required project applications. Although the fee was submitted, all listed application forms were not submitted. Additionally, the appeal request was not withdrawn. • October 8, 2024 – The Planning Commission held a duly-noticed public hearing to consider the appeal, at which time all interested parties were given an opportunity to be heard and present evidence. The Planning Commission upheld the Community Development Director’s determination that the project does not qualify for SB35/423 ministerial review and denied the appeal (Attachment D). • October 21, 2024 – The Appellant filed a timely Appeal (Attachment B) of the Planning Commission’s determination to City Council pursuant to RPVMC 17.80 which included a written appeal and supporting documentation. • October 25, 2024 – Staff provided the Appellant a letter (Attachment J) via email noting Staff received the timely filed Appeal. • October 29, 2024 – Staff issued a letter of incompleteness for Case No. PLZC2024-0002 (application submitted October 1, 2024). • November 3, 2024 – The Appellant requested, via email, to place the application review on hold until the appeal process concluded. • November 15, 2024 – Staff provided the Appellant a letter (Attachment K), via email, noting the project review can be placed on hold until such time the Appeal is finalized, providing a new resubmittal deadline of March 20, 2025. The Appellant submitted a written agreement to place the project review for Case No. PLZC2024- 0002 on hold. 13 Appeal Determination The Community Development Director and the Planning Commission determined that the proposed project for which the preliminary application was submitted on April 18, 2024, which includes 482 residential units (1,173,927ft2) does not qualify for SB35/423 ministerial review and therefore requires the following entitlements: General Plan Amendment, Zone Change, Certificate of Compliance, Major Grading Permit, Variance, Environmental Review and Major Site Plan Review as required by the RPVMC. The Appellant’s appeal presents arguments, included in the Appeal letter dated October 21, 2024 (Attachment B), that the project as submitted should qualify for Builder’s Remedy status and SB35/423 ministerial review. The property located at 5323 Ironwood Street is zoned RS-A-5 which permits one single- family residential building and associated improvements pursuant to the development standards in RPVMC Chapter 17.02. Additionally, the site is within the Urban Appearance Overlay Control District (OC-3) which per RPVMC § 17.40.010, “provides criteria which further reduce potential impacts which could be directly created or indirectly induced by proposed and existing developments in sensitive areas of the city. These areas have been defined by the general plan and other studies to be sensitive areas due to unique characteristics contributing significantly to the city's form, appearance, natural setting, and historical and cultural heritage.” As outlined above per RPVMC § 17.02.020, permitted uses for the RS-A-5 zoning designation include a single-family residence and associated development. The project is proposing a multi-family development including 482 residential units. As proposed, the project is not a permitted use within the RS-A-5 zoning designation. As such, the proposed development would require a Zone Change and General Plan Amendment as detailed in Staff correspondence dated July 18 (Attachment G). Appellant’s Ground for Appeal No. 1 The Appellant asserts that Staff is selectively interpreting the communication regarding the filing date of the preliminary application to achieve a predetermined outcome. City’s Response to Ground for Appeal No. 1 Staff has been clear in all correspondence with the Appellant, and the complete email correspondence from May 12 – October 1 is attached (Attachment I). On May 20 the Appellant inquired about the status of the tribal consultation stating, “Since we submitted our Preliminary Application on April 17, 2024 [sic], the 30 -day deadline for the City to notify any affiliated Tribes has now passed. Would you be able to let us know which, if any, Tribes have been notified under this process? Given th e 30-30-30 timeline from the statute, when would you be able to tell us what the schedule for the scoping consultation would be, or if it is not required?” 14 As a point of clarification Staff asked the Appellant on May 22, “as discussed at the public counter, I understood the materials submitted to be supplemental materials (a clarification in the proposed floor area). The tribal consultation was commenced on February 29, 2024, and is still in progress. In any event, Staff has provided the updated plans to the participating tribes. To clarify, is the preliminary application submitted on April 18, 2024, a new application or a modification to the existing preliminary application on file for the property?” The Appellant responded, “The April 18, 2024 is our new preliminary application please.” To further clarify Staff responded on May 23, “Thank you for the information. Are you withdrawing the earlier Preliminary Application and replacing it with this one?” The Appellant stated, “That is correct.” As such, the January 22 preliminary application was formally withdrawn, and a new preliminary application was submitted on April 18. There is nothing selective about how Staff interpreted these communications, the Appellant was very clear and unequivocal about their intentions. Moreover, the preliminary application submitted on January 22 provided for 637,04 2ft2 of residential and 641,193 total square footage, while the one submitted on April 18 changed the anticipated square footage to 765,283 of residential space and 1,173,927 total square footage. The increase in construction square footage in the April 18 prel iminary application is 54% over the construction square footage in the January 22 preliminary application. As set forth in the “Statutory Framework” section above, Sectio n 65941.1(c) provides: After submittal of all of the information required by subdivision (a), if the development proponent revises the project such that the number of residential units or square footage of construction changes by 20 percent or more, exclusive of any increase resulting from the receipt of a density bonus, incentive, concession, waiver, or similar provision, the housing development project shall not be deemed to have submitted a preliminary application that satisfies this section until the development proponent resubmits the information required by subdivision (a) so that it reflects the revisions. For purposes of this subdivision, “square footage of construction” means the building area, as defined by the California Building Standards Code (Title 24 of the California Code of Regulations). The square footage of the proposed project received substantial revisions as specified in the preliminary applications dated January 22 and April 18 shown below in Figure No. 1 and Figure No. 2: Figure No. 1 – January 22 Preliminary Application Proposed Floor Area 15 Figure No. 2 – April 18 Preliminary Application Proposed Floor Area Appellants Ground for Appeal No. 2 The Appellant asserts the City’s claim about the date of its Housing Element compliance is incorrect. City’s Response to Ground for Appeal No. 2 Based on HCD’s letter of April 5, 2024 which indicated that the City’s draft Housing Element met the statutory requirements but would not be in substantial compliance until the requisite zoning code amendments are adopted. On April 16, 2024, the City Council determined that the Negative Declaration adopted on August 11, 2022, as amended by Addendum No. 1, adequately analyzed the impacts from the adoption and implementation of the Revised Final 2021-2029 Housing Element, and following the public hearing adopted Resolution No. 2024-16 approving a General Plan Amendment for the City’s Revised Final 2021-2029 Housing Element, a General Plan Amendment for the Land Use Element and Land Use Map, and a Local Coastal Plan (Coastal Specific Plan) Amendment to effectuate the 2021-2029 Housing Element. The City Council also adopted Resolution No. 2024-17 to forward to the California Coastal Commission the amendments to the Local Coastal Program (LCP) Coastal Specific Plan and zoning map related to the 6th Cycle Housing Element actions in the Coastal Zone, consistent with State Law. Additionally, in order to protect the health, safety, and welfare of the residents of the City of Rancho Palos Verdes, on April 16, 2024, the City Council unanimously adopted Urgency Ordinance No. 678U approving zoning amendments inclusive of Zoning Map amendments and development standards for Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs), to immediately effectuate the Housing Element, including rezoning sufficient sites to accommodate the City’s regional housing 16 needs allocation by adopting the implementation actions to effectuate the City’s Revised Final 2021-2029 Housing Element. As such, the Housing Element was in substantial compliance with Housing Element Law on April 16, 2024 as indicated by HCD on April 5, 2024. The April 16 City Council Staff Report for the consideration of the Revised Final Housing Element is available for review. Therefore, at the time of the April 18 submission, the City’s Housing Element was substantially compliant with the relevant State Housing Laws, thus the preliminary application submitted on April 18 does not qualify for Builder’s Remedy protection. Additionally, the project does not qualify as an SB 35 project, as it is not compliant with the General Plan and Zoning Code. Based on the preliminary application materials submitted on April 18, Staff has determined the proposed project does not qualify as SB35/423 Ministerial Review. Appellant’s Ground for Appeal No. 3 The Appellant asserts the City is violating the Permit Streamlining Act by denying this housing project. The Appellant notes that “once a development project application is submitted, an agency must first determine whether the application is complete and provide an exhaustive list of incomplete items. The City has not determined whether the application is complete and has not provided an exhaustive list of incomplete items as required by state laws.” City’s Response to Ground for Appeal No. 3 The Appellant paid the fees for consideration of the required project applications on October 1, 2024. As such, staff provided a letter of incompleteness on October 29, 2024 in compliance with the Permit Streamlining Act. Subsequently, the Appellant requested via email to place the application review on hold until this current appeal process concluded. Following, Staff provided the Appellant a letter via email noting the project review can be placed on hold until such time the Appeal is finalized providing a new resubmittal deadline of March 20, 2025. On November 15, 2024 the Appellant provided a written agreement (Attachment K) to place the project review on hold. As such, staff has complied with the Permit Streamlining Act. Appellant’s Ground for Appeal No. 4 The Appellant asserts that the City violates the affordable housing streamlined process by denying this housing project, specifically by failing to act within the required timelines for tribal consultation and not providing details regarding the tribal consultation. 17 City’s Response to Ground for Appeal No. 4 Upon the submittal of the preliminary application dated January 22, 2024, Staff commenced the tribal consultation on February 13, 2024. Staff sent a letter requesting 10 local tribes to engage in the tribal consultation process. As a result, two tribes, Tongva Nation and Kizh Nation, requested to engage in the tribal consult. The Kizh Nation requested to engage in tribal consult on February 23 , 2024. Thereafter, on February 29, 2024, Staff emailed to inquire if the tribe would like the developer included in the consult process. Additionally, the Tongva Nation requested to engage tribal consult on April 2, 2024. On April 22, 2024, Staff emailed to inquire if the tribe would like the developer included in the consult process. Neither tribe approved the developer’s participation in the Scoping Consultation, as required by Government Code § 65913.4(b)(2)(C). Accordingly, Staff proceeded with the required consultation process without the participation of the Appellant. Staff provided the Appellant an update via email on July 11, (Attachment I) noting that the tribal consultation had not yet concluded with the Kizh Nation, but provided the conditions requested by the Tongva Nation. Additionally, as Staff has determined that the project does not qualify for SB35/ministerial approval, tribal consultation would not be required as a part of SB35. Appellant’s Ground for Appeal No. 5 The Appellant asserts the City is violating the Housing Accountability Act by denying this housing project, stating “the HAA prohibits local government from disapproving an affordable housing project unless it makes written findings based on the preponderance of the evidence in the record as to one of five specifically enumerated findings (Government Code section 65589.5(d). The City cannot disapprove the project based on HAA subd. (d)(5), the builder’s remedy, because the City was not in compliance wit h the Housing Element Law on the date of a complete preliminary application. There is no evidence in the record that any of the other enumerated findings apply, nor did the City even attempt to make such findings.” City’s Response to Ground for Appeal No. 5 The Planning Commission upheld the Director of Community Development’s determination that the project does not qualify for Builder’s Remedy/ministerial review process does not constitute a disapproval of the project pursuant to HAA and therefore no additional findings are required. Appellant’s Ground for Appeal No. 6 The Appellant asserts that the City’s actions are in clear violation of State Density Bonus Law. 18 City’s Response to Ground for Appeal No. 6 The City has not denied any incentives or waivers of development standards provided for under state Density Bonus Law. Furthermore, Appellant’s claims regarding the City allegedly violating state Density Bonus Law are irrelevant to the Planning Commission and Director’s determination that the project does not qualify for the SB 35 ministerial review process or the Builder’s Remedy. Appellant’s Ground for Appeal No. 7 The Appellant asserts the courts have decided on very similar matters in the favor of housing development. City’s Response to Ground for Appeal No. 7 None of the cases cited are binding authority, and the facts in the cases are significantly different than the subject of this matter. Appellant’s Ground for Appeal No. 8 The Appellant asserts the City has not sought a court order regarding the compliance of the Housing Element, stating, “despite ample time and opportunity, the City has not sought a court ruling to establish April 16, as the compliance date. Without contesting HCD’s determination, June 12, remains the official compliance date.” City’s Response to Ground for Appeal No. 8 Currently, there is not a legal mechanism for the City to obtain a court determination as to whether its Housing Element is in substantial compliance with State Housing Element Law. Furthermore, as stated above Government Code § 65585.03 is intended to be declaratory of existing law. As such, should the City’s Housing Element be challenged through litigation, a Court may determine that as of April 16, 2024, the City’s Housing Element was in substantial compliance with State Housing Element Laws. Appellant’s Ground for Appeal No. 9 The Appellant asserts that Governor signed AB 1886 into law on September 19. However, this legislation went into effect on January 1, 2025, and was not in effect at the time of the Director’s and Planning Commission’s determination that is the subject of this appeal. Nevertheless, Staff addresses the argument below. City’s Response to Ground for Appeal No. 9 In the September 30, supplemental information provided to the Planning Commission, the Appellant claims the legislation states, “A jurisdiction is in compliance as of the date of the Housing and Community Development department’s (HCD) letter finding the adopted 19 housing element in substantial compliance. Any other letters do not constitute a finding of substantial compliance. Section 65585.03 of the Government Code, as added by Section 1 of this act, is declaratory of existing law and does not represent a change.” However, the Appellant misrepresents the text of new Government Code § 65585.03 and fails to provide the statutory context for this statute. Section 65585.03 states: A housing element or amendment shall be considered to be in substantial compliance with this article when the local agency adopts the housing element or amendment for the current planning period in accordance with Section 65585 and either of the following apply: (a) The department finds that the adopted housing element or amendment is in substantial compliance with this article and the department’s compliance findings have not been superseded by subsequent contrary findings by the department or by a decision of a court of competent jurisdiction. (b) A court of competent jurisdiction determines that the adopted housing element or amendment substantially complies with this article and the court’s decision has not been overturned or superseded by a subsequent court decision or by statute. In addition, Section 3 of AB 1886 states, In Section 65585.03 of the Government Code, as added by Section 1 of this act, it is the intent of the Legislature to confirm that local agencies cannot self -certify housing element compliance and to ratify the regulatory interpretation expressed in the March 16, 2023, memorandum from the Department of Housing and Community Development to planning directors and interested parties, which states, “where a jurisdiction submits an ‘adopted’ housing element before submitting an initial draft or before considerin g HCD’s findings on an initial draft, HCD will consider the ‘adopted’ to be an initial draft for purposes of both HCD’s review and the jurisdiction’s statutory compliance,” and “a jurisdiction does not have the authority to determine that its adopted element is in substantial compliance but may provide reasoning why HCD should make a finding of substantial compliance. In addition, a jurisdiction is ‘in compliance’ as of the date of HCD’s letter finding the adopted element in substantial compliance. Any othe r letters are not a finding of substantial compliance.” In this respect, Section 65585.03 of the Government Code, as added by Section 1 of this act, does not constitute a change in, but is declaratory of, existing law. In this case, contrary to the circumstances described in Section 3 of AB 1886, on February 7, 2024, the City submitted its final Housing Element to HCD for its review and finding of substantial compliance. On April 5, 2024, HCD provided a letter indicating that the City’s Housing Element met the statutory requirements of State Housing Element Law, but that for it to be in full compliance the City would have to adopt the revised Housing Element 20 and the necessary zone changes to effectuate the Housing Element. The City did not wait until after it adopted its Housing Element on April 16, 2024 to submit it to HCD for its review but rather submitted multiple drafts to HCD until it received approval before adoption. Therefore, HCD’s letter dated April 5, 2024, confirmed the City would be fully in compliance with the Housing Element Law when the City adopted the revised Housing Element and adopted the necessary zoning to effectuate the Housing Element. This was accomplished on April 16, 2024. Therefore, Appellant’s claim the City’s Housing Element was not in substantial compliance with the Housing Element Law until June 12, 2024 is not supported by the text of AB 1886. In addition, since the Project is not subject to the Builder’s Remedy exception, another reason it fails to comply with the requirements of Government Code, section 65913.4 is that, as proposed, fifty percent of the Project’s total units are not designated for households making at or below 80 percent of the area median income. (Government Code, section 65913.4(a)(4)(B)(i) (III)(ii)). Based on the above discussion on the Appellants appeal points, Staff recommends the City Council deny the appeal thereby upholding the Planning Commission’s determination. ADDITIONAL INFORMATION: Planning Commission’s Attendance Pursuant to City Council Policy No. 24, the Chair of the Planning Commission has been invited to attend the February 18 meeting to provide the City Council, if desired, with context related to the October 8, 2024 Planning Commission meeting on the appeal. City Councilmember Proximity to Project Site Councilmember Seo resides within 1,000 feet of the project site. As such, Councilmember Seo will be required to recuse himself from the public hearing. No additional conflicts were identified. Biological Assessment A Biological Assessment prepared by Michael Baker Inc. dated December 18, 2024 concluded that the project site contains habitat for protected species identified as candidate, sensitive, or species of special status by state or federal agencies, fully protected species, or species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code). As such, pursuant to Government Code § 65913.4(a)(6)(J), this 21 disqualifies the project from utilizing streamlined ministerial zoning and permitting processes pursuant to SB 35. Public Correspondence On January 30, 2025, a public notice was issued and published in the Palos Verdes Peninsula News providing notification of the City Council’s review and consideration of the appeal hearing. Since the Planning Commission meeting on October 8, Staff received 13 additional comments (Attachment C), expressing opposition to the project. CONCLUSION Based on the discussion contained herein, it is Staff’s recommendation that the City Council adopt the draft resolution thereby denying the Appellant’s appeal and upholding the Planning Commission’s decision to uphold the Community Development Director’s determination that the proposed project does not qualify for SB35 ministerial review or within the Builder’s Remedy exception on property located at 5323 Ironwood Street (Case No. PLZC2024-0002). ALTERNATIVES In addition to Staff’s recommendation, the following alternatives are available for the City Council’s consideration: 1. Grant, in whole or in part, the appeal upon provision of applicable findings determining that the application qualifies for SB 35/423 ministerial review for the property located at 5323 Ironwood Street (Case No. PLZC2024-0002). 2. Remand the matter back to either the Planning Commission or Community Development Department with directions to further consider the appeal and application in light of the evidence presented at tonight’s appeal hearing. 22 01203.0049/1049858.1 Resolution No. 2025-_ Page 1 of 10 RESOLUTION NO. 2025-_ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES THEREBY DENYING AN APPEAL AND UPHOLDING THE PLANNING COMMISSION’S DETERMINATION THAT THE PROPOSED PROJECT WHICH INCLUDES 482 RESIDENTIAL UNITS (1,173,927 SQUARE FEET) DOES NOT QUALIFY FOR SB35/423 MINISTERIAL REVIEW OR THE EXEMPTION FROM CONSISTENCY WITH THE CITY’S GENERAL PLAN DESIGNATION OR ZONING SET FORTH IN GOVERNMENT CODE, SECTION 65589.5(D)(5) THEREFORE REQUIRING THE FOLLOWING LAND USE ENTITLEMENTS: GENERAL PLAN AMENDMENT, ZONE CHANGE, CERTIFICATE OF COMPLIANCE, MAJOR GRADING PERMIT, VARIANCE, ENVIRONMENTAL REVIEW AND MAJOR SITE PLAN REVIEW AS REQUIRED BY THE RANCHO PALOS VERDES MUNICIPAL CODE TO CONSIDER THE PROPOSED PROJECT, AS DESCRIBED HEREIN, FOR THE PROPERTY LOCATED AT 5323 IRONWOOD STREET (CASE NO. PLZC2024-0002). WHEREAS, on January 22, 2024, the Applicant/Appellant, Verde Estates Inc. submitted a Preliminary Application, proposing 482 units (385 market rate and 97 affordable units, i.e. 20% of the total units) comprised of 641,193 square feet of building area. At the time of this submittal the City was still in the process of revising its Housing Element and had not adopted a Housing Element that was in substantial compliance with state housing laws, according to the Department of Housing and Community Development (“HCD”); and, WHEREAS, on February 7, 2024, after the required seven-day posting and circulation of the document, the City submitted the final revised Housing Element to the HCD for its formal review; and, WHEREAS, on February 13, 2024, the City commenced the Tribal Consultation process pursuant to Government Code Section 65913.4, commonly known as SB 35 (Gov’t Code § 65913.4(b)); and, WHEREAS, on March 14, 2024, HCD staff sent an email to the Director indicating that HCD has no further comments regarding revisions to the Revised Housing Element; and, WHEREAS, on April 5, 2024, the HCD provided a letter to Staff detailing that the Housing Element addressed most of the statutory requirements but cannot be found in full compliance until the City has completed the Zone Amendments required to implement certain programs in the Housing Element; and, A-1 Resolution No. 2025-_ Page 2 of 10 WHEREAS, on April 16, 2024, the City Council adopted a revised Housing Element containing modifications requested by the HCD. On that date, the City Council also adopted as an urgency measure an ordinance to establish the Mixed-Use Overlay Zone and the Residential Overlay Zone and to rezone two properties. This urgency ordinance, which became effective immediately upon its adoption, served to rezone the necessary properties to implement the revised Housing Element. Accordingly, the City had adopted a housing element that is in substantial compliance with the applicable state housing element laws; and, WHEREAS, on April 18, 2024, the Applicant submitted a Preliminary Application, proposing 482 units (385 market rate, 97 affordable units) comprised of 1,173,927 square feet; and, WHEREAS, on May 12, 2024, the Applicant emailed staff for clarification on the SB35 submittal checklist; and, WHEREAS, on May 15, 2024, Staff emailed the Applicant, noting that the Tribal Consultation was still in progress and to provide a list of questions in writing regarding the submittal requirements; and, WHEREAS, on May 20, 2024, the Applicant noted that the Preliminary Application was submitted on April 17 1 [sic] and therefore the 30-day deadline for the City to notify any affiliated Tribes had now passed. Additionally, the Applicant inquired about the requested format for the application submittal; and, WHEREAS, on May 21, 2024, Staff emailed the Applicant inquiring if the Preliminary Application submitted April 18 was a new application or a modification to the existing Preliminary Application; and, WHEREAS, on May 22, 2024, the Applicant emailed Staff noting the April 18 was a new Preliminary Application and Staff emailed the Applicant to confirm if the earlier Preliminary Application was being withdrawn and replaced with the April 18 application; and, WHEREAS, on May 23, 2024, the Applicant confirmed via email the Preliminary Application dated January 22 was withdrawn; and, WHEREAS, on June 3, 2024, the Applicant emailed Staff requesting to use the Preliminary Application submitted January 22; and, WHEREAS, on June 5, 2024, Staff provided a letter to the Applicant via email, stating the Applicant withdrew the Preliminary Application dated January 22, per Applicant’s correspondence provided on May 23 and due to the new Preliminary 1 The email from the Appellant submitting the new Preliminary Application was actually dated April 18, 2024. A-2 Resolution No. 2025-_ Page 3 of 10 Application being significantly different with regard to the square footages for each building; and, WHEREAS, on June 7, 2024, the Applicant emailed Staff requesting that the Preliminary Application submitted April 18 be considered a modification to the January 22 Preliminary Application, along with supplemental information; and, WHEREAS, on June 12, 2024, HCD provided a letter to Staff confirming that the City’s Housing Element adopted April 16, 2024, and completed actions (Zoning Amendments to Increase Housing Development Potential) met the statutory requirements as described in the April 5, 2024 HCD letter, and therefore is in substantial compliance with State Housing Element Law; and, WHEREAS, on July 2, 2024, the Applicant met with staff at the public counter. Staff noted that the Tribal Consultation was still in progress; and, WHEREAS, on July 11, 2024, the Applicant emailed Staff regarding requesting the status of the Tribal Consultation and Staff emailed the Applicant that the Tribal Consultation was still in progress. Staff noted that should the Applicant wish to submit an application prior to the conclusion of the Tribal Consultation, the project would be processed per the requirements of the Rancho Palos Verdes Municipal Code. Staff provided a project fee statement and relevant submittal materials. Staff noted that following the conclusion of the tribal consultation, should it be determined that the proposed project meets all SB35 requirements, the pertinent fees would be refunded; and, WHEREAS, on July 15, 2024, the Applicant emailed Staff noting the project was based on SB35/423 and Housing Accountability Act Builder’s Remedy, therefore certain planning entitlements and discretionary reviews would not be required. The Applicant provided an updated copy of the fee statement with strikethrough for the fees they felt were not applicable; and, WHEREAS, on July 18, 2024, Staff provided a letter to the Applicant reiterating that the Preliminary Application submitted on January 22 was withdrawn and resubmitted as a new Preliminary Application on April 18. Staff noted that at the time of the April 18 submission, the City had adopted Housing Element that was substantially compliant with housing element law, thus the project does not qualify for Builder’s Remedy protection. Additionally, the project does not qualify as an SB 35 project, as it is not compliant with the General Plan and Zoning Code. Staff noted the Applicant can submit the project for review by the Planning Division, pending payment of the unedited City invoice provided on July 11, 2024; and, WHEREAS, on July 29, 2024, the Applicant emailed staff requesting to appeal the decision outlined in the July 18, 224 correspondence; and, A-3 Resolution No. 2025-_ Page 4 of 10 WHEREAS, on August 5, 2024, Staff provided the Applicant via email instructions to process the appeal; and, WHEREAS, on August 8, 2024, Staff received a timely written Appeal Letter with fee from the Applicant/Owner at 5323 Ironwood Street; and, WHEREAS, on August 19, 2024, Staff provided a letter to the Applicant/Appellant via email, noting Staff is in receipt of the filed Appeal; and, WHEREAS, on August 27, 2024, the Applicant/Appellant provided a letter via email with supplemental Appeal information; and, WHEREAS, pursuant to Rancho Palos Verdes Municipal Code (RPVMC) §17.80.050(C), an appeal hearing before the Planning Commission shall be set within 90 days of the filing of the appeal, or no later than November 6, 2024; and, WHEREAS, on September 12, 2024, pursuant to RPVMC §17.80.090, a public notice announcing the Planning Commission’s consideration of the appeal on October 8, 2024, was provided to the Applicant/Appellant, property owners within a 500-foot radius of the project site, interested parties and published in the Palos Verdes Peninsula News; and, WHEREAS, on September 25, 2024, the Applicant/Appellant requested a link to pay the invoice dated July 10, 2024; and, WHEREAS, on September 30, 2024, the Applicant/Appellant provided a letter via email with supplemental Appeal information; and, WHEREAS, on October 1, 2024, Staff provided the link for payment via email and the Applicant/Appellant paid the fee for consideration of the required project applications. However, the appeal request was not withdrawn; and, WHEREAS, on October 8, 2024, the Planning Commission held a duly noticed public hearing to consider the appeal, at which time all interested parties were given an opportunity to be heard and present evidence. The Planning Commission denied the appeal without prejudice thereby upholding the Community Development Director’s determination; and WHEREAS, on October 21, 2024, Staff received a timely written Appeal Letter with fee from the Applicant/Owner at 5323 Ironwood Street; and WHEREAS, on October 25, 2024, Staff provided the Applicant/Appellant a letter via email acknowledging Staff received the filed Appeal; and A-4 Resolution No. 2025-_ Page 5 of 10 WHEREAS, pursuant to RPVMC §17.80.050(C), an appeal hearing before City Council shall be set within 90 days of the filing of the appeal, staff schedule the appeal for February 18, 2025; and WHEREAS, on October 29, 2024, Staff issued a letter of incompleteness for Case No. PLZC2024-0002; and WHEREAS, on November 3, 2024, the Applicant/Appellant requested via email to place the application for Case No. PLZC2024-0002 on hold until the appeal process conclude; and WHEREAS, on November 15, 2024, Staff provided the Applicant/Appellant a letter via email noting the project review can be placed on hold till such time the Appeal is finalized providing a new resubmittal deadline of March 20, 2025; and WHEREAS, on January 30, 2025, pursuant to RPVMC §17.80.090, a public notice announcing the City Council’s consideration of the appeal on February 18, 2025, was provided to the Appellant, property owners within a 500-foot radius of the project site, interested parties and published in the Palos Verdes Peninsula News; and WHEREAS, on February 18, 2025, the City Council held a duly noticed public hearing to consider the appeal, at which time all interested parties were given an opportunity to be heard and present evidence. NOW, THEREFORE, THE CITY COUNCIL DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: Section 1: The above recitals are true and correct and are incorporated herein by reference. Section 2: The City Council has considered the basis for the appeal offered by the Appellant, and finds that they are without merit for the reasons described below: A.The Appellant asserts that Staff is selectively interpreting the communication regarding the filing date of the preliminary application to achieve a predetermined outcome, however, staff has been clear in all correspondence with the Appellant, and the complete email correspondence from May 12 – October 1 is included in the staff report record. There is nothing selective about how Staff interpreted these communications, the Appellant was very clear and unequivocal about their intentions to submit a new preliminary application on April 18, 2024 and withdraw the preliminary application submitted on January 22, 2024. B.While the Appellant alleges that the project as submitted should qualify for the exception to the requirement that a project having to be consistent with the applicable zoning and general plan set forth in Government Code, section 65589.5(d)(5), “the Builder’s Remedy” and the ministerial review, and approval A-5 Resolution No. 2025-_ Page 6 of 10 process set forth in Government Code, section 65913.4 (“SB 35/423”), the project does not qualify because at the time the Applicant submitted the operative Preliminary Application, the City had adopted a Housing Element and the required zoning to implement the Housing Element all of which was in substantial compliance with state Housing Element law. Based on HCD’s letter of April 5, 2024, which indicated that the City’s draft Housing Element met the statutory requirements but would not be in substantial compliance until the requisite zoning code amendments are adopted, on April 16, 2024 the City Council determined that the Negative Declaration adopted on August 11, 2022, as amended by Addendum No. 1, adequately analyzed the impacts from the adoption and implementation of the Revised Final 2021-2029 Housing Element, and following the public hearing adopted Resolution No. 2024-16 approving a General Plan Amendment for the City’s Revised Final 2021-2029 Housing Element, a General Plan Amendment for the Land Use Element and Land Use Map, and a Local Coastal Plan (Coastal Specific Plan) Amendment to effectuate the 2021- 2029 Housing Element. The City Council also adopted Resolution No. 2024-17 to forward to the California Coastal Commission the amendments to the Local Coastal Program (LCP) Coastal Specific Plan and zoning map related to the 6th Cycle Housing Element actions in the Coastal Zone, consistent with State Law. Additionally, in order to protect the health, safety, and welfare of the residents of the City of Rancho Palos Verdes, on April 16, 2024 the City Council unanimously adopted Urgency Ordinance No. 678U approving zoning amendments inclusive of Zoning Map amendments and development standards for Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs), to immediately effectuate the Housing Element, including rezoning sufficient sites to accommodate the City’s regional housing needs allocation by adopting the implementation actions to effectuate the City’s Revised Final 2021-2029 Housing Element. As such, the Housing Element was in substantial compliance with Housing Element Law on April 16, 2024, as indicated by HCD on April 5, 2024. Therefore, at the time of the Applicant/Appellant’s April 18, 2024 submission of a new preliminary application, the City’s Housing Element was substantially compliant with the relevant state housing element laws, thus the preliminary application submitted on April 18 does not qualify for Builder’s Remedy protection. Additionally, the project does not qualify as an SB 35 project, as it is not compliant with the General Plan and Zoning Code. Based on the Preliminary Application materials submitted on April 18, the City Council has determined the proposed project does not qualify for the ministerial review and approval process set forth in Government Code, section 65913,4 or the Builder’s Remedy exception set forth in Government Code, section 65589.5(d)(5). A-6 Resolution No. 2025-_ Page 7 of 10 C.The Appellant asserts the Preliminary Application submitted on April 18 was supplemental to the January 22 Preliminary Application. However, the preliminary application submitted on January 22 provided for 637,042 square feet of residential and 641,193 total square footage, while the one submitted on April 18 changed the anticipated square footage to 765,283 of residential space and 1,173,927 total square footage. The increase in construction square footage in the April 18 preliminary application is 54% over the construction square footage in the January 22 preliminary application, necessitating a new Preliminary Application pursuant to Government Code, section 65941.1(c). D.The Appellant asserts the City is violating the Permit Streamlining Act by denying this housing project. The Appellant notes that, “once a development project application is submitted, an agency must first determine whether the application is complete and provide an exhaustive list of incomplete items. The City has not determined whether the application is complete and has not provided an exhaustive list of incomplete items as required by state laws.” As the Applicant/Appellant paid the fees for consideration of the required project applications. As such, staff provided a letter of incompleteness on October 29, 2024 in compliance with the Permit Streamlining Act. Subsequently, the Applicant/Appellant requested via email to place the application review on hold until the appeal process concluded. Following, Staff provided the Applicant/Appellant a letter via email noting the project review can be placed on hold till such time the Appeal is finalized providing a new resubmittal deadline of March 20, 2025. On November 15, 2024, the Applicant/Appellant provided a written agreement to place the project review on hold. As such, staff has complied with the Permit Streamlining Act. E.The Appellant asserts that the City violates the affordable Housing Streamlined process by denying this housing project, specifically by failing to act within the required timelines for Tribal Consultation and not providing details regarding the tribal consultation. Upon the submittal of the preliminary application dated January 22 Staff commenced the Tribal Consultation on February 13, 2024. Staff sent a letter requesting 10 local tribes to engage in the tribal consultation process. As a result, two tribes, Tongva Nation and Kizh Nation requested to engage in the tribal consult. The Kizh Nation requested to engage in tribal consult on February 23. Thereafter, on February 29 Staff emailed to inquire if the tribe would like the developer included in the consult process. Additionally, the Tongva Nation requested to engage tribal consult on April 2, on April 22 Staff emailed to inquire if the tribe would like the developer included in the consult process. Neither tribe approved the developer’s participation in the Scoping Consultation, as required by Government Code, section 65913.4(b)(2)(C). Accordingly, staff proceeded with the required consultation process without the participation of the Appellant. City staff provided the Appellant an update via email on July 11, 2024 noting that the Tribal Consultation had not yet concluded with the Kizh Nation, but provided the conditions requested by the Tongva Nation. Additionally, as Staff has A-7 Resolution No. 2025-_ Page 8 of 10 determined that the project does not qualify for SB35/ministerial approval, Tribal Consultation would not be required as a part of SB35. F.The appellant asserts the City is violating the Housing Accountability Act by denying this housing project, However, the Planning Commission’s and Director of Community Development’s determination that the project does not qualify for builders remedy/ministerial review process does not constitute a disapproval of the project pursuant to HAA and therefore no additional findings are required. G.While the Appellant alleges that the City’s actions are in clear violation of State Density Bonus Law, The City has not denied any incentives or waivers of development standards provided for under state Density Bonus Law. Furthermore, Appellant’s claims regarding the City allegedly violating state Density Bonus Law are irrelevant to the Planning Commission and Director’s determination that the project does not qualify for the SB 35 ministerial review process or the Builder’s Remedy. H.The appellant asserts the courts have decided on very similar matters in the favor of housing development. However, none of the cases cited are binding authority and the facts in the cases are significantly different than the subject of this matter. I.The Appellant claims per Assembly Bill (AB) 1886, “a jurisdiction is in compliance as of the date of the Housing and Community Development department’s (HCD) letter finding the adopted housing element in substantial compliance. Any other letters do not constitute a finding of substantial compliance. Section 65585.03 of the Government Code, as added by Section 1 of this act, is declaratory of existing law and does not represent a change.” However, the legislation does not apply in the circumstance were a city, first submits its Housing Element to the Department of Housing and Community Development (“HCD”) for its review and approval before adopting the Housing Element. The City submitted the revised Housing Element to HCD for its review and approval which was obtained on April 5, 2024 before it adopted the Housing Element on April 16, 2024. J.The Appellant asserts the City has not sought a court order regarding the compliance of the Housing Element, stating, “despite ample time and opportunity, the City has not sought a court ruling to establish April 16, as the compliance date. Without contesting HCD’s determination, June 12, remains the official compliance date.” Currently, there is not legal mechanism for the City to obtain a court determination as to whether its Housing Element is in substantial compliance with state housing element law. Furthermore, as stated above Government Code, section 65585.03 is intended to be declaratory of existing law. As such, should the City’s housing element be challenged through litigation a Court may determine that as of April 16, 2024 the City’s Housing Element was in substantial compliance with state housing element laws. A-8 Resolution No. 2025-_ Page 9 of 10 K.A Biological Assessment prepared by Michael Baker Inc. dated December 18, concluded that the project site contains habitat for protected species identified as candidate, sensitive, or species of special status by state or federal agencies, fully protected species, or species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code).As such, pursuant to Government Code Section 65913.4(a)(6)(J), this disqualifies the project from utilizing streamlined ministerial zoning and permitting processes pursuant to SB 35.. Section 3: For the foregoing reasons and based on the information and findings included in the Staff Report, Minutes and other records of proceedings, the City Council of the City of Rancho Palos Verdes hereby adopts Resolution No. 2025-__, denying the Appellant’s appeal and upholding the Planning Commission’s determination that the proposed project which includes 482 units (1,173,927 square feet) does not qualify for SB35 ministerial review or falls within the Builders Remedy exception and therefore requires the following entitlements: General Plan Amendment, Zone Change, Certificate of Compliance, Major Grading Permit, Variance, Environmental Review and Major Site Plan Review as required by the Rancho Palos Verdes Municipal Code for the proposed project, as described herein, for property located at 5323 ironwood street (Case No. PLZC2024-0002). Section 4: Any challenge for judicial review of this Resolution and the findings set forth therein, must be filed within the 90-day statute of limitations set forth in Code of Civil Procedure §1094.6 and §17.86.100(B) of the RPVMC. Section 5: The City Clerk shall certify the passage, approval, and adoption of this Resolution, and shall cause this Resolution and the City Clerk’s certification to be entered in the Book of Resolutions of the City Council. PASSED, APPROVED, and ADOPTED this 18th day of February 2025. David L. Bradley, Mayor Attest: Teresa Takaoka, City Clerk STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES )ss CITY OF RANCHO PALOS VERDES ) A-9 Resolution No. 2025-_ Page 10 of 10 I, Teresa Takaoka, City Clerk of the City of Rancho Palos Verdes, do hereby certify that the above Resolution No. 2025-11, was duly adopted by the City Council of said City at a regular meeting thereof held on February 18, 2025. ______________________ Teresa Takaoka, City Clerk A-10