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Home My WebLink AboutCORRESPONDENCE - 60DKARA GRANT LAW 17595 Harvard, Suite C-202 • Irvine, California 92614 e I kara@grant-law.net • t 1949.579.9330 September 15, 2020 City Council of the City of Santa Ana City of Santa Ana Attn: Clerk of the Council 20 Civic Center Plaza — M30 Santa Ana, CA 92701 eComment@santa-ana.org RE: Comments to Auenda Item No. 60D — Rescission of Approvals for the Russell Fischer Commercial Center Project located at 301 and 325 N. Tustin Avenue Dear Mayor Miguel A. Pulido and Members of the Council: These comments are made on behalf of my clients, Santa Ana Needs Equity ("SANE"), William Conklin, Karina Conklin, and Dr. Yoon Hee Choe (the "Petitioners" or the "Clients"). As you know, my clients are the petitioners in plaintiffs in the related litigation titled Santa Ana Needs Equity, et al v. City of Santa Ana, et al., Orange County Superior Court, Case No. 30-2019-01113224- CU-WM-CXC (hereinafter, the "Lawsuit"), which is identified as item I on the Council's closed session for September 15, 2020. On Friday, September 11, 2020, I received a "courtesy copy" of the staff report, proposed resolution rescinding those approvals, and exhibit thereto, consisting of a letter purportedly dated August 31, 2020 from the project applicant, Russell Fischer, LP ("RF" or the "Applicant") requesting that —if and only if the City Council first approves "the settlement agreement which has been reached between RF and the City"— then RF requests the City Council rescind the 2019 approvals, which were granted October 15, 2019 following Petitioners' appeal to the City Council. A portion of the exhibit is shown below. grant-law.net RIhay .L. n to not n"%c k'wvsard A ith the detrkapuxrx of the -019 rrnjecr, Dw Ir] ,IFsrnttrc Ck.rn W i In TtW .,,%runt .-aused h} the ['01, 6W 19 parta tntr. Rk sakes am pnat3u have Jihi.r.11'.I P.m I k lv.•r.:i...w kl t%,ytr ru,. nliW Ik N wrt NNA grner,nrng any rw'x+nx. %#idle Rk pawl JIIe%Pn1111+..1n11JIrrrf cnn;+>,•rcr ..akc,lbkcelotc, by tltir.letler.ltf hereby rryuesrt,Ila t L:N Counctl k, t,yc anti :h. _u l A.6 a eoaduaa pmedmr to RPa rngwn dbr tnereiMian of the 21119 Alrprovuln, the t'ay Ctic. rl is sn Vprovr rhr waknnent nprcrrnrnt rMeh has bean tradwd het%me XF and the L'tty. This i' omblio a Fti"Cr tit uaay tic :1 al all, w k-iy by RF. If dse City docs not a"ove dbc sett9c wW apectatut. dtea RF'r request to rercrad the 2019 4ppn*vales is harehy withdra%0 Vcr% ttul +- Ili%.. Rnsull .-, ttls. tti-rte.uitx Ilsdl;c Song l' a;ho. 1. cy. Alma s WtrtFI 1. k+q Once again, the City as part of some scheme with RF, is attempting deprive my Clients of their due process rights by failing to give proper notice to allow my Clients to prepare for and present evidence and argument regarding RF's proposal and the City's response, including the City's attempt to include unnecessary, unrequested and legally invalid "findings" including but not limited to the following, all of which are without evidentiary support, including without limitation, the following: 1. The characterization and purported finding that the Russell Fischer project —which was revised after the 2018 approvals to "substitute" a car wash in place of the retail building, and which the Court in the Lawsuit has already indicated appears to be part of the same project —as two separate projects (draft resolution 2020, p. 1, § 1); 2. The characterization and purported finding that RF's request to "rescind" the 2019 approvals is because "the 2019 Project is no longer financially feasible," (p. 2, § 1, 9 I), when the reason for the request —and the reason why approval of the secret settlement agreement between RF and the City is a "condition precedent" to the request to rescind is that the Court has found that my clients are likely to prevail in the lawsuit, he has stayed development with the need for posting of a bond, and he has determined that my clients can conduct discovery, including taking depositions, regarding the relationship between Mayor Pulido and RF's permit expediter, which created a conflict of interest; 3. The entirety of Section 3 that purports to make findings about the 2018 Approvals, the impact of the adoption of the 2019 Approvals on the 2018 Approvals, and the effect of the proposed rescission on both the 2018 and 2019 approvals. (p. 3, § 3.) Russell Fischer did not request that the City take any action or make any findings related to the 2018 Approvals in his purported request. There is no legitimate reason for making any of the findings in Section 3 because these are all matters that are at issue in the Lawsuit, and which a court, and not the City Council must decide. As you are well aware, the rescission of the subject approvals directly impacts —and is tied to —the pending litigation against the City, which my Clients were forced because the City refused to comply with their obligations under the California Environmental Quality Act ("CEQA"), the City's municipal code, and the Public Records Act to the detriment not only of my Clients, but public at grant-law.net large. By failing to provide notice of this meeting, the City has again denied interested members of the public due process. As you know, the Native American tribe ancestrally and geographically affiliated with the location of the RF project consulted with the City and provided substantial evidence of the significant adverse impacts this project would have on their tribal cultural resources if appropriate mitigations were not adopted. Moreover, over twenty Santa Ana residents attended the October 15, 2019 City Council meeting on behalf of SANE to object to yet another car wash approval and voiced why the retail center previously approved would have benefited the community and the City, and how RF's car wash would be detrimental. With respect to the proposed recission of the 2019 RF project approvals, although my Clients agree that the 2019 approvals (among others) should be voided, RF's purported basis for requesting their rescission is patently false, and the related findings made by the City and included in the proposed Resolution rescinding the 2019 approvals is completely improper. To the contrary, the sole reason the City seeks to include findings pertaining to RF's alleged financial inability to proceed with the subject car wash project is because of my Clients' pending Lawsuit. We fully support the City Council rescinding the entirety of the 2019 Approvals because the City Council violated the law in adopting those approvals. That is part of the relief that was sought in the Lawsuit and to which the City and RF are now agreeing to. However, the City Council should stop there and not try and buy itself further litigation by attempting to bootstrap in these ridiculous purported findings. Let's be real. RF claimed that the retail center was not financial viable, and that is the reason it claimed it revised the project to substitute the car wash. RF never asked for the approvals of the retail version of the project to be rescinded because it is not necessary due to the project becoming economically not feasible. The normal response -the same one RF had previously —was not to proceed with the project, seek approvals for a revised project, or it could sell the land with the approvals to someone who might be interested. In addition, RF's purported reason does not pass the smell test given that there is a condition precedent to the request for rescission, that the City approve the secrete settlement agreement between RF and the City. If the financial non -feasibility is the reason for the request for rescission, then RF would unconditionally be requesting rescission. The Council has NO EVIDENCE to support its finding. Russell Fischer did not provide any documentation to show that it even engaged in any financial analysis. In addition, the City has no basis for making findings about the effect on the 2018 Approvals. The Court has already suggested he agrees with my client's position that adoption of the 2019 Approvals caused the 2018 to become void by their own terms. The City has no place in attempting to make a finding about the legal effect of its actions. Lastly, the City has hidden all of the documents related to this item from the public. The City refused to provide any documents for review to the public and my representative today related to this matter other than the six pages of the Staff Report with exhibit. The City Council should (1) rescind the 2019 Approvals, (2) strike Section 3 of the Resolution, and (3) strike the other inaccurate and unsupported proposed findings in Section 1. grant-law.net My Clients reserve all rights. Should you have any questions regarding this letter, please feel free to contact me at (949) 579-9330, or by email at kara@grant-law.net. Sincerely, lsl Kara Grant Kara Grant grant-law.net