HomeMy WebLinkAboutSurfrider - vs - Poseidon Seawater Desalination Project - Ap bAm �
NOTICE OF APPEAL TO CITY COUNCIL
OF A PLANNING DEPARTMENT ACTION (OR POLICE)
Date 7/30/2009
To Police Dept(1 Copy) Date Delivered N/A
City Attorney(1 Copy) Date Delivered 7/30/2009
Planning D ept(2 Copie s) Date Delivered 7/30/2009
City Council Office (1 Copy) Date Delivered 7/30/2009
Administration (1 Copy) Date Delivered 7/30/2009
Filed By Councilmember Jill Hardy
RE Appeal of the Planning Department Action Continuance of CUP#02 004
Tentative Date for Public Hearing TBD
Copy of Appeal Letter Attached Yes
LEGAL NOTICE AND A P MAILING LIST MUST BE RECEIVED IN THE CITY CLERK S OFFICE 15
DAYS PRIOR TO THE PUBLIC HEARING DATE
Joan L Flynn CIVIC
City Clerk
(714) 536 5227 Fee Collected None
Form Completed by Caren Ferrera Sr Deputy City Clerk
N BEnC
, STY OF HUNTINGTON
City Council Intelro cce CommunicatpofiC09 41' 30 ANIN 36
To Joan Flynn, City Clerk '
From Jill Hardy, City Council Member—.g'�,
Date July 24, 2009
Subject APPEAL OF PLANNING DEPARTMENT ACTION—
CONTINIIANCE OF CLIP#02-004
1 am appealing the Planning Departments decision to grant a stay of the requirement in the
Zoning Ordinance to apply for and receive an extension of the Conditional Use Permit#02-004
in a timely manner Further I am appealing the inaction of the Planning Department to notify
the project applicant that the CUP became null and void one year after its adoption by the City
Council in accordance with the provisions of the City Zoning Ordinance Chapters 241
REASON
Significant issues have been raised by the public in regard to the continuance of the Conditional
Use Permit (CUP) [CUP#02-004]for the Huntington-Poseidon Desalination Facility (Project) by
the Huntington Beach Planning Department--without having applied for or received a required
extension in a timely manner The Planning Department originally granted a retroactive
extension of the permit that violated the clear language in the city s Zoning Ordinance requiring
a request for an extension within one year of the date of approval The Planning Departments
action also violated the city s Zoning Ordinance by allowing a three-year extension without the
explicit requirement to hold a public hearing on the matter
The Planning Department has now reversed that action and taken a subsequent action to grant
a stay' of the CUP—again in clear violation of the Zoning Ordinance The Planning
Department is apparently relying on provisions in the California Coastal Act that are not
applicable to the current circumstances There are several appeals pending before the Coastal
Commission that challenge the city s issuance of a Coastal Development Permit for the Project
The Coastal Act makes it clear that the operation and effect of the city s grant of the Coastal
Development Permit is stayed until resolution of those appeals However while this is arguably
sound reasoning for the Planning Department to have granted an extension of the CUP upon
request by the Project applicant it does not nullify the City Zoning Ordinance requiring that
request for an extension
Xc City Council
Fred Wilson City Administrator
Paul Emery Deputy City Administrator
Bob Hail Deputy City Administrator
Jennifer McGrath City Attorney
Scott Hess, Director of Planning
Mary Beth Broeren Planning Manager
Ricky Ramos Sr Planner
®� CITY OF HUNTINGTON BEACH
Inter-Department Communication
Planning Department
TO: Honorable Mayor and City Council Members
VIA: Fred Wilson, City Administrator
FROM: Scott Hess,AICP,Director of Planning
DATE: June 29,2009
SUBJECT: SURFRIDER FOUNDATION LETTER OF OPPOSITION TO
EXTENSION OF TIME FOR CONDITIONAL USE PERMIT NO.02-004
(POSEIDON SEAWATER DESALINATION PROJECT)
On June 26,2009 the Surfrider Foundation submitted a letter to the Mayor and City Council
opposing the extension of time granted for Conditional Use Permit No. 02-004 on June 17,2009.
Upon consultation with the City Attorney's Office on June 25,2009 the Planning Department
rescinded Extension of Time No. 09-010 due to the fact that approval of Conditional Use Permit
No. 02-004/Coastal Development Permit No. 02-005 is stayed based on a pending appeal at the
California Coastal Commission. Therefore,no extension of time is necessary at this moment.
Please contact Ricky Ramos at ext. 5624 if you have any questions regarding this matter.
SH:MBB:RR
xc: Bob Hall, Deputy City Administrator
Mary Beth Broeren,Planning Manager
Ricky Ramos, Senior Planner
2009 JUIN 30 Aii 9: 52
Suifnider :I uril , 0�"� - AC I
Foupidation.
AWLA"..
TO: Mayor Keith Bohr and City Council Members, City of Huntington Beach
City Attorney, Jennifer McGrath
Planning Director, Scott Hess
FROM: Surfrider Foundation
DATE: July 1, 2009
RE: Second Response--Oppose Extension of Conditional Use Permit#02-004
Dear Mayor and City Council:
I am writing on behalf of the Surfrider Foundation in opposition to the apparent
continuance of the Conditional Use Permit(CUP) [CUP#02-004] for the Huntington-
Poseidon Desalination Facility (Project)by the Huntington Beach Planning Department--
without having applied for,or received the required extension in a timely manner.
BACKGROUND
As you are aware, Surfrider Foundation wrote the City Council on June 26,2009,
expressing our opposition to an action taken by the Planning Department to retroactively
grant an extension of the CUP in violation of the Huntington Beach City Zoning and Sub-
Division Ordinance(Ordinance).See: Ordinance§241.16 et seq.
Our opposition included several issues:
- The Ordinance clearly mandates that requests for CUP extensions must be filed
within a year of the date of approval of the CUP. The Applicant,Poseidon
Resources, failed to request an extension in a timely manner—rendering the CUP
void and null years ago.
- The retro-active extension granted by the Planning Department was issued for a
three-year period without public notice and a hearing—in clear violation of the
Ordinance.
- The legal doctrine of nunc pro trunc was interpreted improperly by the Planning
Department and applied in such a way to effectively nullify the Ordinance. That is
an overly broad reading of the legal doctrine and not applicable to the present
circumstances.
We want to re-assert those arguments in this letter by reference to, and attachment of, our
June 26 letter.
SUBSEQUENT ACTION
We have become aware of a subsequent decision by the Planning Department to rescind
the retroactive extension and effectively reverse their own decision and rationale for
granting the extension in the first place. Instead,the Planning Department now argues
that because there is a pending appeal of the City's issuance of the Coastal Development
Permit(CDP), the CUP is "stayed."The Planning Department appears to once again
nullify the clear requirement in the Ordinance to request an extension of the CUP prior to
one year after approval by the City. As explained below,we do not believe the pending
appeals of the CDP are relevant to a constructive "stay"of the City's approval of the
CUP—and consequently do not provide any relief from the clear requirements in the
Ordinance. The approval of the CUP was a final action by the City,triggering the
requirements in the Ordinance.
In stark contrast,had the CUP been appealed,the CDP would have been automatically
stayed in accordance with Zoning& Subdivision Ordinance Chapter 2451.There is no
similar language granting an exemption to the strict deadline to apply for an extension of
the CUP. Where a Code shows that the drafters could have included a provision in a
section, evidenced by those provisions specifically adopted in a similar section,the
assumption is that the legislative body left the language out purposefully.
Further,the appeals are still pending because of inaction by Poseidon Resources to
finalize their CDP application to the California Coastal Commission. It is an odd
dereliction to allow the inaction of the Applicant to a State agency, after a final decision
by the City,to serve as an excuse for violating the unambiguous time restrictions in the
City's Ordinance. Ironically,the pending appeals would arguably have been
sufficient grounds for a timely request for an extension by Poseidon Resources and
potential granting of the timely request by the City.But the appeals do not serve to
nullify the requirement to make that request and argument.
Also,while the CDP and the CUP are both necessary permits for the Project to move
forward,they are only two permits among many necessary for complete Project approval
—some of which are not finalized or do not even have final applications before the
controlling agency.The fact that the two distinct permits may have been reviewed and
approved by the City sequentially at the same hearing does not undermine the fact that
they are separate permits under separate substantive authority and procedural
requirements (including the requirement for a CUP extension).Importantly,the City
Ordinance creates a set of requirements specific to maintaining an active CUP after
adoption by the City—independent of other requirements for complete Project approval.
In brief,the CUP is separate and distinct from other permits—whether they are required
under the authority of the City or other agencies. It would be an improper read of the
1 245.36 Expiration of Coastal Development Permit
A Coastal Development Permit shall expire on the latest expiration date applicable to any other permit or approval
required for the project,including any extension granted for other permits or approvals.Should the project not require
City permits or approvals other than a Coastal Development Permit,the Coastal Development Permit shall expire one
year from its date of approval if the project has not been commenced during that time.
245.35
Ordinance to bootstrap another agency's action,or inaction by the Project
Applicant to that separate agency,to the requirement to maintain an active CUP by
applying for a timely extension.In fact,delays in approval of separate permits are
arguably the rationale for allowing an extension in the Ordinance. For the Planning
Department to grant what qualifies as a constructive"continuance" nullifies the
plain and discrete mandates of the Ordinance specifically dealing with timely
extension of a CUP—independent of other permit requirements or the timing of
other permit approvals.
CONCLUSION
The letter from the Planning Department to Poseidon Resources memorializing the
reversal of the previous decision to retroactively extend the CUP is sparse in the rationale
or justification for rescinding the original grant of an extension. There is no explanation
in the letter how the appeal of the CDP somehow modifies the clear conditions in the
Ordinance to renew the CUP. There is no mention that the CUP is not being appealed.
There is no mention of any remaining authority by the City over the CDP,nor how the
CDP is somehow linked to the Ordinance's trigger of the timeline for CUP.
Nonetheless, it appears that the Planning Department is arguing that decisions yet to be
made by the California Coastal Commission on appeals of the CDP somehow modify the
section of the City's Ordinance specifically addressing the mandatory steps to grant an
extension of the CUP after final approval by the Citv.
We strongly object to the Planning Department's convoluted efforts to sidestep the clear
intent and letter of the Ordinance requiring a request for a CUP extension prior to one
year after the City approved the CUP. The Ordinance cannot be much clearer. Further,
requesting an extension is not such a burdensome requirement that it mandates
extraordinary action by the City Planning Department to justify modifying,if not clearly
violating,the plain language of the Ordinance. Whether intentionally or through
mismanagement by the Project applicant.the Ordinance has been clearly violated and the
CUP is clearly null and void. Legal surgery cannot bring back the dead.
Sincerely,
cl7�
Joe Geever
California Policy Coordinator
Surfrider Foundation
j eever ,surfrider.org
(949)636-8426
NATIONAL OFFICE—PO BOX 6010—SAN CLEMENTE,CA 92674-6010
(949)492-8170—FAX(949)492-8142—www.surfrider.ora-E-MAIL infong,surfrider.org
� T a
2009 JUNII 26 PH 4: 18
Foundation.
TO: Mayor Keith Bohr and City Council Members; City of Huntington Beach
FROM: Joe Geever, Surfrider Foundation
DATE: June 26, 2009
RE: Oppose Extension of Conditional Use Permit#02-004
Dear Mayor and City Council:
I am writing on behalf of the Surfrider Foundation in opposition to the extension of the
Condition Use Permit(CUP)for the Huntington-Poseidon Desalination Facility(Project)
by the Huntington Beach Planning Department—CUP#02-004.
We are aware of a letter issued by the Planning Department to Poseidon Resources
granting a 3-year extension of the Project long after the Cup had expired and become
void. We are attaching that letter for your records.
Huntington Beach City Zoning and Sub-Division Ordinance(Ordinance)clearly
mandates that a request for an extension must be submitted prior to the expiration of the
CUP to avoid the CUP becoming null and void. See: Ordinance§241.16(A). The
Ordinance clearly states that the CUP is null and void after one-year from the date of.
approval unless there is an explicit exception in the original CUP or certain actions are
taken.Id None of the conditions or enumerated actions for avoiding nullification of the
CUP were taken by the Project applicant in a timely manner.The CUP is conseouently
currently null and void.
The letter from the Planning Department seems to imply that the legal doctrine of nunc
pro trunc allows the Planning Department to make an exception to the clear language of
the Ordinance. We disagree. This interpretation of nunc pro trunc would, in effect,
nullify the Ordinance itself. That is an overreach of the legal doctrine embodied in nunc
pro trunc.
Further,the Planning Department, in their letter to Poseidon Resources, has expressly
granted a three-year extension on the CUP from the date of approval. Again,the
Ordinance is clear that extensions are to be limited to one year without public notice and
hearing. See: Ordinance§241.16(E).
Again, the Planning Department has exceeded the clear discretion granted in the
Ordinance. To our knowledge,there has been no public notice nor public hearing on the
request for a 3-year extension. Therefore,the limit of any extension would be one year
}
S
from issuance of the CUP. Obviously, a one year extension from the time of issuance
would have also expired by now.
In conclusion,the CUP is currently null and void. To remedy the situation,the applicant
must file an application for a new CUP. It is too late to notify the public and hold a
hearing to grant a three year extension. There is no active CUP to extend.
Recommendations and Requests:
1) The City must rescind the Planning Department letter of July 17,2009 and notify
the applicant, Poseidon Resources,the CUP# 02-004 is currently null and void.
2) Given that the CUP is currently null and void,we are not aware of any necessity
for administrative consideration of the issue. However, should the City Council
consider a formal appeal process or any other remedy to the action taken by the
Planning Department,we request notice of that appeal or other action so that we
may also seek administrative remedies.
3) We request copies of any documents,communications or other relevant
information leading to the action taken by the Planning Department to attempt to
grant a CUP extension.
4) Please reply and confirm receipt of this letter and attachment.
Sincerely,
Joe Geever
California Policy Coordinator
Surfrider Foundation
NATIONAL OFFICE—PO BOX 6010—SAN CLEMENTE,CA 92674-6010
(949)492-8170—FAX(949)492-8142—www.surfrider.ore-E-MAIL infongsurfrider.org
Apr 03 06 O8i5Oa Zoia Law Office (707) 526-5885 p. 2
i Ros< M. Luia . F;6134759
2 L'1W Office Of Rose M. L,Oia,
50 Old C'.cnirthouse Square, S-a- 600
3 Santa Rosa, California 95404
707.526.5894 . fax 707.526.5895
4 rzol,i@sl)c�lobiti.net
5
Daniel Cooper . Jgin. 153576
6 l,awyevs For Clean WaLcr
7 1004� O'Rcilly Aventic
San 5rancisco CA 94129
R ply 41.5.561.2222 . fix 415.561.2223
clean watcrCCl)g1 ry.Cc�+i
9
lU .Atto)aicys for Petitioners
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 IN AND FOR THE COUNTY OF ORANGE
I3 SURFRIDER FOUNDATION CASE NUMBER
14 HUNTINGTON-SEAL BEACH
CHAPTER, THE SIERRA CLUB
15 ANGELES CHAPTER, and DOES 1
16 thrOUgh 5, inclusive,
Petitioners,
I7
lA v- NOTICE OF
19 CIT OF HUNTINGTO�d BEACH, and COMMENCEMENT OF
1r'
DOES 6 through 10, inclusive, ACTION
?u
21 Respondents.
22
POSEIDON RESOURCES
23 CORPORATION; AES HUNTINGTON
24 BEA"�H, LLC, and DOES 11 through
15, inclusive,
25
26 Real Parties in Interest.
27
2s
Notice of Commencement of Action
i
npr 03 06 09: 50a Zoi ^ Law Office [7071_ 526-5895 p. 3
1 TO THE CITY OF HUNTINGTON BEACH:
7
Notice is hereby given that, on April 3, 2006, an action will be commenced
3
4 against you by the filing of a Petition for Writ of Mandate challenging your approval of
5 the proposed Seawater Desalination Project at Huntington Beach, CUP 02-04,
6 CDP 02-05, its certification of the Environmental Impact Report, and related
7
approvals. The project is proposed to be located on approximately 11 acres
8
9 adjacent to the AES Huntington Beach Generating Station (HBGS), within the
10 southeastern portion of the City at 21730 Newland Street.
11 Dated: April 3, 2006 Law Office of Rose M. Zoia
12
]3 '
14 Roe M. Zoi
Attorneys Kr Petitioners
IS
16 Lawyers for Clean Water
17 (� -q AL
,
1 Daniel Coo er
19 Attorneys or Petitioners
20
21
22
23
24
25
26
27
28
Notice of Commencement of Action
;? 2
Apr 03 06 09: 50a Zo+ ^ Law Office (7071 526-5895 p. 4
PROOF OF SERVICE
I am a citizen of the United States and a resident of the County of Sonoma.
am over the age of eighteen years and not a party to the within entitled action.
My busine:ys address is 50 Old Courthouse Square, Suite 600, Santa Rosa,
California 95404,
On April 3, 2006, 1 served one true copy of:
NOTICE OF COMMENCEMENT OF ACTION
by faxing to the person and fax number listed below:
Scott Field
Clerk Law Offices of Scott Field
City of Huntington Beach Assistant City Attorney
2000 Main Street City of Huntington Beach
Huntington Beach, CA 92648 2000 Main Street
fax 714-374-1557 Huntington Beach, CA 92648
Respondent fax 714-374-1590
Attorney for Respondent City of
Huntington Beach
declare under penalty of perjury that the foregoing is true and correct.
-xecuted on April 3, 2006, at Santa Rosa, California.
npr 03 06 08: 50a Zoia Law Office (707) 526-5885 p. 1
Rase M. Zoia. R E C,�rn 1 V E
Attorney 1
5() old courtl-oust Square,ZP4Yt'cr(1()()3 AN 9' 42
�7
Bantu Rosa, California
'�is 9540
707.5yh.5894 . fa., 70 -526.5895,j% a
MEMORANDUM
VIA FAX
TO: Clerk, City of Huntington Beach
714-374-1557
Scott Field
714-374-1590
FROM: Rose M. Zoia
RE: Surfrider v_ City of Huntington Beach
DATE: April 3, 2006
Enclosed: Notice of Commencement of Action
Total number of pages faxed:
Esparza, Patty
From: Field, Scott
Sent: Friday, April 07, 2006 4:50 PM
To: Esparza, Patty
Subject: Re: Notice of Commencement of Action
I received a copy. Thanks for asking.
Scott
-----Original Message-----
From: Esparza, Patty
To: Field, Scott
Sent: Fri Apr 07 15:33:59 2006
Subject: Notice of Commencement of Action
Hi Scott - I received a fax copy of the above from Attorney Rose M. Zoia in Surfrider v.
City challenging Poseidon. It also listed you being sent a copy. Please respond to
verify your receipt of this document or not, and advise if you need a copy from this
office. Thanks.
Sincerely,
Patty Esparza
Acting Senior Deputy City Clerk
(714) 536-5260
1