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Home My WebLink About061824-08.1 Clark MorrisonFrom: Morrison, Clark <cmorrison@coxcastle.com> Sent: Tuesday, June 18, 2024 1:58 PM To: David Crompton <DCrompton@danville.ca.gov> Cc: Rob Ewing <REwing@danville.ca.gov>; allanmoorelaw@gmail.com; stephanie.reyes@hcd.ca.gov; Ido Adler <ido.adler@gmail.com>; Sabey, Andrew <asabey@coxcastle.com>; Purvis, James M. <jpurvis@coxcastle.com> Subject: Appeal Hearing Letter Adler ***CAUTION*** THIS EMAIL WAS NOT SENT FROM DANVILLE STAFF This email originated from outside of the Town of Danville and was not sent from a Town Staff member! Do not click on links or open attachments unless you recognize the sender and know the content is safe. David, I am submitting this letter on behalf of Ido Adler for tonight's hearing. I understand from Rob that you will get this to the Town Clerk and Council members. Allan I would appreciate being copied on whatever you might submit to the Council this afternoon or evening. Thanks so much. Clark Clark Morrison Id COX CASTLE direct: 415.262.5113 mobile: 415.265.1107 cmorrison@coxcastle.com vcard bio website h COX CASTLE June 18, 2024 VIA HAND DELIVERY & E-MAIL Town Council Town of Danville 500 La Gonda Way Danville, CA 94526 Cox, Castle & Nicholson LLP 50 California Street, Suite 3200 San Francisco, California 94111-4710 P: 415.262.5100 F: 415.262.5199 Clark Morrison 415.262.5113 cmorrison@coxcastle.com File No. 099999 Re: Appeal of May 16, 2024 "Notice of Incomplete Application" for Major Subdivision Application — SD 9673 (aka Parcel B of SD 6196) Dear Honorable Members of the Town Council: The only question before the Town Council tonight is whether Mr. Adler has submitted the materials required by the Town's submittal requirement checklist. The substantive merits of Mr. Adler's proposal are irrelevant. The general plan, zoning and approval history of the property and adjacent subdivision are irrelevant. Questions regarding access or geotechnical suitability are irrelevant. The history of any discussions between Mr. Adler and the HOA are irrelevant. The CC&Rs are irrelevant. Questions regarding the expired offer of dedication are irrelevant. Even CEQA is irrelevant. As set forth in our letter of May 24, 2024, Government Code Sections 65940(a) and 65940.1 require the Town to "compile one or more lists that specify in detail the information that will be required from any applicant for a development project" and must make that information available online. Where the Town finds a development application to be incomplete, it must provide an "exhaustive list" of items that were incomplete. That list of incomplete items "shall be limited to those items actually required on the [Town's] submittal requirement checklist." (Gov. Code § 65943(a).) The Town is legally prohibited from requesting any additional information. ➢ The Town's submittal checklist requires information describing the widths, location and identity of "all existing" easements. There are no such easements to submit. Therefore Mr. Adler has submitted all existing easements. ➢ The Town's checklist requires information describing the "location, width, and purpose of "all" easements. There are no such easements to submit. Therefore Mr. Adler has submitted all information with respect to "all" easements. www.coxcastle.com Los Angeles 1 Orange County 1 San Francisco Town Council June 18, 2024 Page 2 ➢ The Town's May 16, 2024, incomplete letter complains that Mr. Adler's title report does not "show any easements to the property for any purpose." This is a correct statement but, as noted above, legally irrelevant. ➢ The Town's letter demands "the requested copy of an existing easement executed by the owner of record of the subservient estate." The Town's submittal checklist does not "actually require" this. ➢ Staff's report to the Town Council insinuates that Mr. Adler's application is incomplete because it did not include the name, address, or signature of the Anderson Ranch Single Family Owners Association (the "HOA").1 The Town's application and submittal checklist do not require the name or address of landowners whose property may be subject to an off-site easement. It requires only the name and address of the subdivider, which have been provided. ➢ There seems to be some confusion as to whether a title report was submitted. Given that staff refers to such a report in its own report to Council, the record reflects that a title report was submitted. ➢ Mr. Adler is not proposing to subdivide the HOA's property. There is therefore no legal requirement that the HOA execute Mr. Adler's map application. In fact, there is no requirement for the HOA's signature at any time. Even final subdivision maps require only the signatures of those parties "having a record title interest in the property being subdivided." Gov't Code section 66465 (emphasis supplied). ➢ The Town's submittal checklist requires a "preliminary" geotechnical report. A preliminary geotechnical report was submitted, and it is quite thorough. Staff is now requesting a "detailed" geotechnical report and actual field investigations. These are not required by the Town's submittal checklist. To the contrary, the Town's checklist states that, where the "preliminary" report identifies geotechnical hazards which might lead to structural defects if not corrected, a "detailed" engineering, geologic or seismic safety report must "accompany the final map." [Emphasis Supplied.] Staffs report fails to mention this. We agree with staff's assertion that it would be contrary to the Subdivision Map Act, and the community's health, safety and general welfare, if the proposed lots were to be created and sold without access. But there is no conflict with either the Map Act, or public health and safety considerations, in the Town merely processing Mr. Adler's application. 1 This is the first time the Town has made this demand. The Town's January and May 16 incompleteness determination letters do not mention this alleged deficiency. Town Council June 18, 2024 Page 3 The Subdivision Map Act establishes a specific process to assure that access for off-site improvements is secured when it is needed. Specifically, the Town is authorized to impose conditions of tentative map approval requiring such access to be secured. Where such access has not been secured by the time of final map approval, the local agency is required to approve the final map provided that access is secured after final map approval. (Gov't Code section 66462.5.) We wish to make the following two additional points: ➢ Mr. Adler's Preliminary Application remains valid. Under the California Government Code, an applicant must submit a complete development application within 180 days after submitting a complete Preliminary Application. (Gov. Code, § 65941.1(d)(1).) If a local agency in turn finds that development application to be incomplete (under the Permit Streamlining Act procedures), the applicant must submit information needed to complete the application within 90 days of receiving the agency's written identification of the necessary information. (Id. § 65941.1(d)(2).) Consistent with these requirements, Mr. Adler timely submitted his Major Subdivision application materials on December 22, 2023 (i.e., within 180 days of a July 11, 2023 Preliminary Application). Following receipt of staff's January 19, 2024 incompleteness letter, Mr. Adler then timely submitted the required information to complete the application on April 17, 2022 (i.e., within 90 days of that incompleteness determination). ➢ The statement by Mr. Adler's civil engineer (i.e., that the application cannot be complete until access is provided) was incorrect. Mr. Adler's engineer is not acting as legal counsel. That said, his primary point was that the Town should initiate the processing of Mr. Adler's application and simply include a condition - - at the time of tentative approval -- that access for off-site improvements be secured in accordance with Section 66462.5 of the Map Act. Given the City's failure to timely confirm that Mr. Adler's formal map application is complete, the application has been deemed complete as a matter of law under the Permit Streamlining Act. (Gov't Code section 65943.) To the extent the Town Council disagrees with this conclusion, it is incumbent upon the Town Council to (i) grant Mr. Adler's appeal, (ii) confirm that his Preliminary Application has not expired, and (iii) direct staff to process Mr. Adler's map in accordance with all applicable laws, including SB 330 and the Housing Accountability Act. We look forward to working with you to bring this project to completion. Town Council June 18, 2024 Page 4 Sincerely, RCM/rcm Clark Morrison Copies: Ido Adler David Crompton, Chief of Planning Stephanie Reyes, California Department of Housing and Community Development Allan Moore, Esq. Rob Ewing, Esq., City Attorney Town Clerk 099999\17645835