16-0419_PLACEWORKS_Correspondence - Heather M Minner (Shute, Mihaly & Weinberger)4/19/2016
I
SHUTE MIHALY
& -WEINBERGERLLP
396 HAYES STREET, SAN FRANCISCO, CA 94102
T: (41S) SS2-7272 F: (415) 552.5816
www.smwlaw.com
April 18, 2016
Via E -Mail and U.S. Mail
San Juan Capistrano City Council
City of San ,Tuan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
HEATHER M. MINNER
Attorney
Re: April_ 19, 201_6 Meeting Agenda Item F 16: Pro l°rcls-c cl Hotel
Ca
P.. _ _. iano
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Dear Mayor Patterson and Members of the City Council:
Our firm represents Save Our Historic Town Center, a community group
formed to protect the important historical and social values of the City's Historic 'Town
Center. We have reviewed the City's request for proposals and Placeworks' proposed
scope of services for environmental review of the proposed Hotel Capistrano by Kimpton
Inn ("Project") and have concluded that the proposed approach to environmental review
for this Project does not comply with the California Environmental Quality Act
("CEQA" ). We urge the City to rethink this approach before approving any agreement to
proceed as proposed.
The City requested proposals to determine whether the Project qualifies for
an addendum to the mitigated negative declaration ("MND") for the Urban Village San
Juan Hotel and Villas project or whether it requires a new mitigated negative declaration
or environmental impact report. The answer to this question is clear, however. Because
the proposed Hotel Capistrano is a new project, it may not rely on the MND prepared for
the San Juan Hotel and Villas project.
Under certain circumstances, CEQA allows a lead agency to prepare a
subsequent MND or an addendum to a MND when a project for which the MND is
prepared is later modified. Pub. Res. Code § 21166; 14 Cal. Code Regs. § 15162.
However, this option is not available when the public agency is considering "a new
project altogether" rather than simply a change to a previously considered project. Save
Our Neighborhood v. Lishman (2006) 140 Cal.AppAth 1288, 1301.
Mayor Patterson
San Juan Capistrano City Council
April 18, 2016
Page 2
The Court of Appeal's holding in Save Our Neighborhood is instructive
here. in that case, a MND was prepared for a proposed "North Point" development
project consisting of a 106 -unit motel, restaurants, lounge, gas station, convenience store,
and carwash. Id. at 1291. The North Point project was never constructed, but a new
"Gateway Project" was proposed on the same site consisting of a 102 -room hotel with
convention facilities and a gas station with a convenience store and carwash. Id. at 1291-
92. The City of Placerville approved an addendum to the prior North Point MND for the
new Gateway Project. "Although planned for the same land and involving similar mixes
of uses," the court ruled that "the North Point Project and the Gateway Project are
different projects nonetheless. They have different proponents and there is no suggestion
that the latter project utilized any of the drawings or other materials connected with the
earlier project as a basis for the new configuration of uses." Id. at 1300. Thus, the court
found that the use of an addendum for this "new project" was inappropriate and the City
violated CEQA by failing to conduct independent environmental review of the Gateway
Project. Id. at 1300-01.
The same is true here. The developer of the San Juan Hotel and Villas
Project, Urban Village, is not proposing the Hotel Capistrano Project. Further, the
project drawings have entirely changed. The density, circulation pattern, and mix of uses
are markedly different. The F16 Agenda Report itself refers to the Hotel Capistrano by
Kimpton as a "new project." Accordingly, the City may not rely on an addendum or
supplement to the MND for the Urban Village project.
The scope of services submitted by Placeworks, however, proposes to do
just that. It proposes to review the Urban Village MND and determine if a supplemental
MND or addendum is warranted. Moreover, it assumes that "the Initial Study would
support the preparation of an Addendum to the San Juan Hotel & Villas MND ...." We
respectfully request that the City decline to pursue this approach.
776710.1
Very truly yours,
SHUTE, MIHALY & WEINBERGER LLP
Heather M. Minner
SHUTE) MIHALY
('_T—WEINBERGERLLN