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Resolution Number 18-11-05-01RESOLUTION NO. 18-11-05-01 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DENYING THE APPEAL OF, AND AFFIRMING THE DETERMINATION MADE ON SEPTEMBER 25, 2018, REGARDING THE PLANNING COMMISSION'S APPROVAL OF A MODIFICATION TO THE INN AT THE MISSION HOTEL SITE PLAN ASSOCIATED WITH ARCHITECTURAL CONTROL (AC) 18-024: INN AT THE MISSION, FORMERLY PLAZA BANDERAS HOTEL LOCATED AT 26891 ORTEGA HIGHWAY (ASSESSOR PARCEL NUMBERS 124-170-12, 14, 15, & 16)(APPLICANT: DAN FRIESS, MISSION COMMERCIAL PROPERTIES, INC.) Whereas, Dan Friess, on behalf of Mission Commercial Properties, Inc., 31866 Camino Capistrano, San Juan Capistrano, CA 92675 (the "Applicant"), has requested approval of Architectural Control (AC) 18-024, requesting site plan modifications to the approved project to revise the location of the swimming pool, parking areas, and the entry driveway; and, Whereas, on October 19, 2010, the City Council certified the Final Environmental Impact Report ("FEIR") for the Plaza Banderas Hotel Project ("Original Project") and the entitlements for the Original Project including General Plan Amendment to change the land use designation (GPA 10-001), the Plaza Banderas Hotel JComprehensive Development Plan (CDP 10-01) and a Rezone to the City's Zoning Map (RZ 10-001) (collectively "Entitlements"); and, Whereas, the DRC reviewed the plans on July 19, 2018 and voted to forward the project to the Planning Commission with a condition that the exit driveway lane at Ortega Highway be narrowed to deter vehicles from turning into the exit lane; and, Whereas, on October 9, 2018, the City received an appeal of the Planning Commission's approval made on September 25, 2018. The appeal was from Charles S. Krolikowski, Newmeyer & Dillion, LLP representative of Save Our Mission — San Juan Capistrano; and, Whereas, the October 9, 2018 appeal made six assertions (quoted directly from the appeal): 1. "The Applicant must think that the City of San Juan Capistrano ("City") and its Planning Commission are a bunch of incompetent fools. In 2017, when the Applicant was seeking yet another extension of the Development Agreement ("DA") for the Project, it represented that the final plans would be submitted in 6 weeks. That did not happen. Further, in 2018, Applicant representatives Dan Friess and Rick Friess looked this Commission and the City Council straight in the eyes and said they were building Plaza 11/5/2018 Banderas as it was approved in 2010. They flat out misrepresented their intentions to the City." 2. "And after all of these misrepresentations about the Project and their "stated intent" to build Plaza Banderas, the Applicant now seeks further revisions to now modify the agreed upon components of the Project, namely the 6,467 square feet of retail space, 3,702 of office space and a 6,095 square foot restaurant, which were identified in the DA, the Comprehensive Development Plan ("CDP") and the Environmental Impact Report ("EIR"). As a matter of law, materially changing the Project, even if done in piecemeal fashion like here, is subject to further CEQA review." 3. "Attached hereto and incorporated herein by reference as Exhibits 1, 2, and 3 are prior letters sent to the City explaining that SOM knew all along that the Applicant was going to change the Project to eliminate or nearly eliminate the agreed-upon and required retail/office/restaurant components of the Project. One of the most critical reasons Plaza Banderas was approved in the first instance was due to these components, which was to create the vibrant mixed-use atmosphere encouraged and required by the City." 4. "In fact, over a year ago, the City advised the Applicant in writing that it was required to identify the interior building space to show the commercial/retail uses for consistency purposes. This letter states as follows: In addition, we noted that the interior space for Buildings A and B is not identified in the submitted plans. As you are aware, the approved 2011 Plaza Banderas Hotel plans identify the commercial component of the project that is comprised of Buildings A and B as consisting of approximately 6,467 square feet of retail, 6,095 square feet of restaurant, and 3,702 square feet of private office. Please identify the interior building space of Buildings A and B so as to ensure consistency with the approved 2011 Planning Commission plans." 2 11/5/2018 5. "Finally, SOM has serious concerns that the City is providing a gift of public funds to the Applicant as the City is apparently agreeing that the Applicant can simply use City -owned and controlled property to support the proposed changes to the Project- assuming that the City even owns or controls this property. (Exhibit 5.) This type of side -deal smacks with corruptness and a complete lack of transparency to which the City is now or may become complicit." 6. "As the Staff Report for these proposed Project modifications was just released, SOM has not had sufficient time to review, analyze and comment on all of the City's staff s analysis and the proposed findings (including numerous proposed CEQA findings) and requests that this hearing be continued to allow SOM to do so. Proper notice of proposed CEQA determinations was not provided." Whereas, on November 5, 2018, the City Council conducted a duly -noticed appeal hearing pursuant to SJCMC Section 9-2.311 to consider public testimony on the Appeal; and, Whereas, the findings and conclusions made by the City Council in this Resolution are based upon the oral and written evidence presented as well as the entirety of the administrative record, which is incorporated herein by this reference. The findings are not based solely on the information provided in this Resolution; and, Whereas, all other legal prerequisites to the adoption of this Resolution have occurred. NOW THEREFORE BE IT RESOLVED, the City Council makes the following findings and determinations as to the Appellant's assertions in the October 9, 2018 appeal: 1. "The Applicant must think that the City of San Juan Capistrano ("City") and its Planning Commission are a bunch of incompetent fools. In 2017, when the Applicant was seeking yet another extension of the Development Agreement ("DA") for the Project, it represented that the final plans would be submitted in 6 weeks. That did not happen. Further, in 2018, Applicant representatives Dan Friess and Rick Friess looked this Commission and the City Council straight in the eyes and said they were building Plaza Banderas as it was approved in 2010. They flat out misrepresented their intentions to the City." The appeal asserts that the Applicant identified to the Planning Commission and City Council that they were building Plaza Banderas as it was approved in 2010 and that they misrepresented their intentions. The decision appealed is the Planning j Commission's decision on September 25, 2018, to approve Architectural Control (AC)18- 024 with conditions. AC 18-024 included modifications to the location of an approved parking area, swimming pool, and entry driveway. The Planning Commission made the 3 11/5/2018 six findings required by San Juan Capistrano Municipal Code, section 9-2.313(c) for approval of an AC permit. The first finding required is that "[t]he proposed use and design of the project comply with all applicable provisions of Title 9 of the San Juan Capistrano Municipal Code [the City's Land Use Code] and any applicable specific plan or comprehensive development plan." (SJCMC, § 9-2.313(c)(1).) For this project, the applicable comprehensive development plan was the Plaza Banderas Hotel Comprehensive Development Plan (CDP 10-01). The staff report to the Planning Commission for the September 25 item detailed how AC 18-024 conformed to the controlling regulations and design guidelines of CDP 10-01 and the requirements of the Land Use Code. The appellant does not explain whether or how AC 18-024 fails to comply with CDP 10-01 or the Land Use Code. Based upon the entire record and the foregoing, the City Council rejects this basis for appeal of the Planning Commission's approval. 2. "And after all of these misrepresentations about the Project and their 'stated intent' to build Plaza Banderas, the Applicant now seeks further revisions to now modify the agreed upon components of the Project, namely the 6,467 square feet of retail space, 3,702 of office space and a 6,095 square foot restaurant, which were identified in the DA, the Comprehensive Development Plan ("CDP") and the Environmental Impact Report ("EIR"). As a matter of law, materially changing the Project, even if done in piecemeal fashion like here, is subject to further CEQA review." The appeal asserts that, first, the Applicant proposed changes to the square footage of uses; second, that these revisions were subject to further CEQA review beyond the project's current certified EIR; and, third that the project changes have been "done in a piecemeal fashion." First, the Planning Commission's decision on AC 18-024 did not concern or in any way change the land use square footages set by the CDP 10-01, or the Final Environmental Impact Report for the Plaza Banderas Project (certified October 2, 2010, SCH No. 2010051075) (EIR). As explained in the response to the Assertion 1, AC 18-024 concerned modifications to the location of an approved parking area, swimming pool, and entry driveway, and the Planning Commission made the six findings required by San Juan Capistrano Municipal Code, section 9-2.313(c) for approval. Second, as shown in the September 25 staff report, AC 18-024 was reviewed as required by CEQA, and the Planning Commission determined that no further environmental review was required: Pursuant to State CEQA Guidelines, section 15162, the Planning Commission determined that the AC 18-024 did not require a new EIR. The Planning Commission found that AC 18-024's modifications were not substantial project revisions, that no substantial changes in circumstances for the project have occurred, and no new information of substantial importance has surfaced since the current EIR was certified. 4 11/5/2018 • Pursuant to section 15164, the Planning Commission determined that AC 18-024 did not require an addendum to the current EIR. The Planning Commission found that there was no new potential for environmental impacts and the modifications were already covered by the current EIR. • Further, the Planning Commission determined that AC 18-024 was entirely exempted from further environmental review as a project consistent with General Plan and zoning designations (Pub. Res. Code, § 21083.3(a), -(b); State CEQA Guidelines, § 15183(d)), entirely exempted under the Class 1 exemption for existing facilities (State CEQA Guidelines, § 15301), entirely exempted under the Class 3 exemption for new construction of small structures (§ 15303), entirely exempted under the Class 11 exemption for minor accessory structures (§ 15311). Third, no piecemeal environmental review has occurred. The entirety of the Inn at the Mission project, formerly referred to as Plaza Banderas, was previously analyzed in an environmental impact report. That analysis considered the whole of the project, including any reasonably foreseeable future consequences of the project. At issue now is the Planning Commission's approval of AC 18-024, which proposes only minor site plan modifications (revised location of the parking area, swimming pool and entry driveway). As explained above, these modifications are not subject to further environmental review. Based upon the entire record and the foregoing, the City Council rejects this basis for appeal of the Planning Commission's approval. 3. "Attached hereto and incorporated herein by reference as Exhibits 1, 2, and 3 are prior letters sent to the City explaining that SOM knew all along that the Applicant was going to change the Project to eliminate or nearly eliminate the agreed- upon and required retail/office/restaurant components of the Project. One of the most critical reasons Plaza Banderas was approved in the first instance was due to these components, which was to create the vibrant mixed-use atmosphere encouraged and required by the City." The appeal asserts that the Applicant notified the City of changes to the approved land uses. As explained in the response to Assertion 2 above, the Planning Commission's decision on AC 18-024 did not concern or in any way change the land use square footages for the project. As explained in the response to Assertion 1 above, AC 18-024 concerned modifications to the location of an approved parking area, swimming pool, and entry driveway and the Planning Commission made the six findings required by San Juan Capistrano Municipal Code, section 9-2.313(c) for approval. Based upon the entire record and the foregoing, the City Council rejects this basis for appeal of the Planning Commission's approval. 5 11/5/2018 4. "In fact, over a year ago, the City advised the Applicant in writing that it was required to identify the interior building space to show the commercial/retail uses for consistency purposes. This letter states as follows: In addition, we noted that the interior space for Buildings A and B is not identified in the submitted plans. As you are aware, the approved 2011 Plaza Banderas Hotel plans identify the commercial component of the project that is comprised of Buildings A and B as consisting of approximately 6,467 square feet of retail, 6,095 square feet of restaurant, and 3,702 square feet of private office. Please identify the interior building space of Buildings A and B so as to ensure consistency with the approved 2011 Planning Commission plans." The appeal asserts that the City notified the Applicant regarding changes to the approved land uses. As explained in the response to the Assertion 2, the Planning Commission's decision on AC 18-024 did not concern or in any way change the land use square footages for the project. As explained in the response to Assertion 1, AC 18-024 concerned modifications to the location of an approved parking area, swimming pool, and entry driveway and the Planning Commission made the six findings required by San Juan Capistrano Municipal Code, section 9-2.313(c) for approval. Based upon the entire record and the foregoing, the City Council rejects this basis for appeal of the Planning Commission's approval. 7 5. "Finally, SOM has serious concerns that the City is providing a gift of public funds to the Applicant as the City is apparently agreeing that the Applicant can simply use City -owned and controlled property to support the proposed changes to the Project- assuming that the City even owns or controls this property. (Exhibit 5.) This type of side -deal smacks with corruptness and a complete lack of transparency to which the City is now or may become complicit." The appeal asserts, first, that the Applicant's use of the City's highway easement area is a gift of public funds and, second, that the review process was not transparent. First, the Applicant's use of the City's highway easement area is not a gift of public funds. The California Constitution prohibits a city from making a gift of public funds to a private party. (Cal. Const., art. XVI, § 6.) In the case of AC 18-024, the City made no gift of funds, or grant of property for that matter, to the Applicant. The City holds a highway easement over a strip of the project site. The Applicant may use this easement area "as long as the use does not 'interfere unreasonably' with the easement's purpose," in this case for the City to build the highway. (Scrubby v. Vintage Grapevine, Inc. (1995) 37 Cal.AppAth 697, 702-703.) In Condition E of its approval of AC 18-024, the Planning Commission required that: 6 11/5/2018 In the event that the City needs to construct highway improvements within the easement the Applicant shall remove all applicable parking spaces from the easement area at the applicant's sole expense. The Applicant's use of the easement area is still limited by California law governing easements and now further limited by AC 18-024. Accordingly, the City is not affording any gift of public funds or grant of property to the applicant. Second, as staff identified in the staff report to the Planning Commission, [T]he proposed swimming pool modification shifts hotel parking onto a portion of the Applicant's property that contains a City highway easement. The City Attorney has reviewed this request and has determined that the hotel parking spaces can be located within the highway easement provided that the Applicant agrees to remove the parking spaces from the highway easement if at any time in the future the City needs to construct highway improvements within the easement. The City's decision to activate the easement, will trigger review under CEQA. A condition of approval (#E) to this effect has been included in the attached Resolution. As such, the Applicant's request to use the highway easement area was fully disclosed in the staff report and resolution. Based upon the entire record and the foregoing, the City Council rejects this basis for appeal of the Planning Commission's approval. 6. "As the Staff Report for these proposed Project modifications was just released, SOM has not had sufficient time to review, analyze and comment on all of the City's staffs analysis and the proposed findings (including numerous proposed CEQA findings) and requests that this hearing be continued to allow SOM to do so. Proper notice of proposed CEQA determinations was not provided." The appeal asserts that the City did not provide proper notice of the Planning Commission meeting and staff report, specifically the CEQA determination. The City provided notification pursuant to Title 9, Land Use Code, Section 9-2.302(f), Notification Procedures. As such, the City satisfied the required project notification. Based upon the entire record and the foregoing, the City Council rejects this basis for appeal of the Planning Commission's approval. NOW, THEREFORE, BE IT FURTHER RESOLVED, based upon the oral and written evidence presented as well as the entirety of the administrative record for the Project, the City Council hereby denies the Appeal and affirms the Planning Commission's approval of Architectural Control (AC) 18-024 made on September 25, 2018. The City Council's decision is final. Judicial review of this decision may be sought by following the procedure outlined in Code of Civil Procedure Section 1094.5 and within 7 11/5/2018 the time limits provided in Code of Civil Procedure Section 1094.6, except that where a shorter time is provided by any state or federal law, such shorter time limit shall apply. NOW, THEREFORE, BE IT FURTHER RESOLVED, that, based on the entire administrative record, including all oral and written testimony presented to the City Council, the City Council does hereby find that the Architectural Control (AC) 18-024) is fully consistent with and covered by the Plaza Banderas FEIR. Based on all evidence in the administrative record, including all oral and written testimony presented, the City Council hereby finds and determines that preparation of a subsequent or supplemental EIR or any other CEQA document is not required under California Public Resources Code section 21166 and State CEQA Guidelines section 15162, because the proposed Architectural Control (AC) 18-024: • Does not constitute a substantial change to the project that will require major revisions of the EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; • Does not constitute a substantial change with respect to the circumstances under which the project is administered that will require major revisions of the EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and • Does not involve new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the EIR was certified that shows any of the following: (a) the offer of dedication will have one or more significant effects not discussed in the EIR; (b) significant effects previously examined will be substantially more severe than shown in the EIR; (c) mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the City Council declined to adopt such measures; or (d) mitigation measures or alternatives considerably different from those analyzed in the EIR would substantially reduce one or more significant effects on the environment, but which the City Council declined to adopt. NOW, THEREFORE, BE IT FURTHER RESOLVED, that the City Council of the City of San Juan Capistrano hereby denies the appeal and upholds the Planning Commission's approval of Architectural Control (AC) 18-024, subject to those conditions of approval established by Exhibit A attached hereto and incorporated herein; and including those applicable conditions of approval established in the Administrative Record, specifically City Council Resolution 10-10-05-05, Architectural Control (AC) 10- 002. CUSTODIAN OF RECORDS: The documents and materials associated with this Resolution that constitute the record of proceedings on which these findings are based are located at San Juan Capistrano City Hall, 32400 Paseo Adelanto, San Juan Capistrano, California 92675. The Development Services Director is the custodian of the record of proceedings. 7 8 11/5/2018 NOTICE OF DETERMINATION: The City Council herby directs Staff to prepare, execute, and file a Notice of Determination within five working days after the City Council approves this Resolution. SEVERABILITY: If any provision of this Resolution is held invalid, the remainder of this Resolution shall not be affected by such invalidity, and the provisions of this Resolution are severable. EFFECTIVE DATE AND EXECUTION: This Resolution shall become effective upon its adoption. The Mayor shall sign this Resolution and the City Clerk shall attest to the adoption thereof. PROTEST OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS: Pursuant to Government Code Section 66020, the Applicant may protest the imposition of fees, dedications, reservations or other exactions imposed on this development project by taking the necessary steps and following the procedures established by Sections 66020 through 66022 of the California Government Code. PASSED, APPROVED AND ADOPTED this 5th day of November 2018. =ARIAS, MAYOR STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. COUNTY OF SAN JUAN CAPISTRANO) I, Maria Morris, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 18-11-05-01 was duly adopted by the City Council of the Cof San Juan Capistrano at an Adjourned Regular meeting thereof, held the 51h day of overpber 2018, by the following vote: AYES: NCIL MEMBERS: Ferguson, Reeve, Patterson, Maryott and Mayor Farias NOES: O NCIL MEMBERS: None ABSENT: C �U CILMEMBEW, None MARIA\M6Aklk"C'ITY CLERK 11/5/2018 EXHIBIT A CONDITIONS OF APPROVAL Project #: Architectural Control (AC)18-024 Project Name: Inn at the Mission, formerly known as Plaza Banderas Hotel APPROVAL DATE: November 5, 2018 These conditions of approval apply to Architectural Control (AC) 18-024 to allow site plan modifications to the location of an approved parking area, swimming pool and entry driveway, located at 26871 & 26891 Ortega Highway (Assessor Parcel Number 124-170-12,14,15,16). General Conditions: A. Consistency with Approved Architectural Control Plans. The project shall be constructed in accordance with all the approved plans and conditions of approval, including but not limited to site plan. If all improvements cannot be installed prior to occupancy, the City may approve a Deferred Improvement Agreement to defer the completion of the improvements provided that a bond, cash deposit, or other surety in a form and substance approved by the City Attorney, is submitted to the City in lieu of installation of the improvements, that application and required fees are submitted, and that the incomplete improvements will not create an unsafe condition on the site. The term of the deferral shall be as determined by the Development Services Director. B. Legal Defense. The applicant shall defend, indemnity, and hold harmless the City of San Juan Capistrano and its officers, employees, and agents from and against any claim, action, or proceeding against the City of San Juan Capistrano, its officers, employees, or agents to attack, set aside, void, or annul any approval or condition of approval of the City of San Juan Capistrano concerning this project, including but not limited to any approval or condition of approval of the City Council, Planning Commission, or City Planner. The City shall promptly notify the applicant of any claim, action, or proceeding concerning the project and the City shall cooperate fully in the defense of the matter. The City reserves the right, at its own option, to choose its own attorney to represent the City, its officers, employees, and agents in the defense of the matter. C. Consistency. In the event that exhibits and written conditions are inconsistent, the written conditions shall prevail. If there are any disparities between these conditions and the plans or final revised plans that are approved for any subsequent phase, the conditions and/or plans as stipulated in the later approval shall prevail. D. Valet Service. If the hotel hosts more than one special event at the same time, valet service with tandem parking shall be required to be implemented. E. Highway Easement. In the event that the City needs to construct highway improvements within the easement the applicant shall remove all applicable parking spaces from the easement area at the applicant's sole expense. The City's decision to activate the easement will trigger review under CEQA.