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HomeMy WebLinkAboutCORRESPONDENCE - 50A2D11 N0VCdWM1741AJ @1 ?ED FOR ENVIRONMENTAL JUSTICE CITY SANTA �,Q,NA November 14, 2014 TO: Mayor Miguel Pulido, Mayor Pro Temp Sal Tinajero, Council Members Vincent Sarmiento, Michele Martinez, Angelica Amezcua, David 8enavides, Roman A. Reyna RE: OC Board of Supervisor's Meeting, November 18, 2014 Dear Mayor Miguel Pulido, Mayor Pro Temp Sal TinaJero, Council Members Vincent Sarmiento, Michele Martinez, Angellca Amezcua, David 8enavides, Roman Reyna: The Santa Ana City Council at the October 21, 2014 demonstrated your tremendous support and unity with the community to seek a different location for the proposed 200 Bed Emergency Shelter at 1217 E. Normandy Place. The proximity to the schools is a major concern and the lack of community engagement in the decision making process, and a poor choice for a 200 Bed Emergency shelter to help our homeless population move their dally needs to a safer and appropriate living environment. We believe that the Normandy location is not the solution. We are very willing, and have Informed the county that the community wants to work in partnership with them for better solutions, specifically location /s and exemplary housing and service models to move our homeless population from poverty to permanent housing. At the Supervisor's meeting on Tuesday, November 18, 2014, they will vote on the purchase of the 1217 E. Normandy Place building. It will be fantastic if you are available to attend, and if one of you can speak on behalf of the City Council this will demonstrate that you are united with the community for better solutions. Coucilmembers Michele Martinez and Angelica Amezcua have informed us that they will be in Washington, D.C. on this day. You can access the Supervisor's agenda on line at OC Board of Supervisors web site, and the staff report dated November 18, 2014. The Normandy Place building purchase is item # 8. The meeting is at 9:3Oam. Location: Hall of Administration at 333 W. Santa Ana Blvd. ( on the corner of Broadway and Santa Ana Blvd. In downtown civic center - Santa Ana). Parking structure is on Ross Street. Coming down Santa Ana Blvd from Broadway, make a right on Ross Street and then a right into the parking lot. Meeting is In the Board Room, first floor. No validated parking. For your Information attached is the most recent correspondence sent to the Board of Supervisors from our attorney, Alvarado Smith, dated November 13, 2014. We hope you can join the community at this Supervisor's meeting where the decision/ vote that is made impacts our children, schools, businesses, homeless population, and all of the community. Thank you for your consideration of this request. Kindest Regards, Susana C. Sandoval — Resident, Robyn Dague — Business Owner, Community United for Environmen al Justice Copy: David Cavazos, City Manager CM 11/18/2014 50A JF*W��� I MacArthur Plata A PROFESSIONAL CORPORATION Sulte 20D INCLUDING PROFEMONAL CORPORATIONS Santa Ana, CalIfomia 92707 Phone; 714;852.6000 Fax; 714.852.6899 x .AWmedolm&oan Keith E. McCullough (714) 852.6800 kmccullough@AlvaMdoSmhh.com November 13, 2014 VIA OVERNIGHT DELIVERY County of Orange Board of Supervisors Hon. Shawn Nelson, Chair Hon, Patricia C. Bates, Vice Chair Hon. Janet Nguyen, First District Hon John M.W. Moorlach, Second District Hon, Todd Spitzer, Third District Attn: Clerk of the Board 333 W. Santa Ana Blvd. Santa Ana, CA 92701 . Los Angeles 213.229,2400 San Francisco 416.624.8666 Raymond 0. Alvarado, 1936 -2014 Re: 1300 NORMANDY PROPERTIES, LLC V. COUNTY OF ORANGE: CEQA Petition Addressing Proposed Homeless Shelter at 1217 Normandy Place, Santa Ana, CA Dear Honorable Members of the Board of Supervisors: The acquisition of 1217 E. Normandy Place, Santa Ana is again on the Agenda as No. 8 for your November 18, 2014 meeting. This time the subject on the Agenda Staff Report reads: "Approve Grant Deed for the 1217 E, Normandy Place, Santa Ana Project ". This moniker masks the true purpose of the item. When this item was last before the Board on July 15, 2014, the Agenda Staff Report subject line read: "Acquisition of Year-Round Emergency Shelter and Multi- Service Center Site ". The change in label will not change the true subject matter of the proposal action this Board is requested to undertake on November 18. While Staff has changed the description, nothing about the underlying Purchase and Sale Agreement ( "PSA ") tlhe County has executed with the owner of the property and the structures at 1217 Normandy Place, Santa Ana, CA and its purpose has changed. The Purchase of 1217 Normandy Is For A Homeless Shelter Indeed, the County's proposed project and use of the property subject to the PSA is expressly designated as a "multi- service center and shelter" (See PSA Sections 4(a)(iv) and 5(a)(ii)), yet in the Agenda Staff Report for November 18, 2014 Staff identifies the following background: "The County Executive Office, Real Estate was tasked with finding a warehouse location in the city of Santa. Ana ... with the potential to be used for storage, equipment repair, trade shop purposes, and other miscellaneous uses by different County agencies or departments, including as a possible year -round emergency shelter." At the end of page 2 of the Agenda Staff Report the statement of prior action reads: "On July 15, 2014, your honorable Board approved 4091186.1 — NISOO,I ALvARADOSMITH November 13, 2014 Page 2 the [PSA] for the purchase of property at 1217 E, Normandy Place, Santa Ana, Staff is returning to the Board at this time to discuss the due diligence process and for acceptance of the Grant Deed transferring fee title to the County of Orange." There can be no doubt that the PSA before the Board on November 18, 2014 is the same PSA that was before the Board on July 15, 2014. Nevertheless, in contrast to what is being represented to the Board in the current Agenda Staff Report, the July 15, 2014 Agenda Staff Report read, in pertinent part: "Approval of the [PSA] will facilitate the acquisition of a site for a year-round emergency shelter and multi - service center for homeless families and individuals in Orange Comity." To be certain, mere words in an Agenda Staff Report cannot functionally cloak the true act and purpose of the PSA that is stated in that very doemuout. Required Compliance With CEQA Most importantly, there is no reference in the PSA to the County's required compliance with CEQA serving as a prerequisite to closing the PSA transaction. Nor is there any requirement in the PSA that the County first perform a complete CEQA review prior to acquisition of the property and implementation of the project. We all have sufficient experience with CEQA to realize that the County cannot engage in a project to establish a 200+ bed, 24 hour a day emergency homeless shelter, with its attendant meal and medical care services, generated delivery, transportation and pedestrian traffic, demand on community services, impacts to the neighboring community, and the like without first engaging in thorough environmental review consistent with CEQA. Project alternatives must be discussed and mitigation measures considered. Nevertheless, Staff erroneously states at page 3 of the Agenda Staff` Report: "Compliance with CEQA; The proposed real estate purchase was previously determined to be exempt from [CEQA] pursuant to Section 15061(b)(3) of the CEQA Guidelines, oil July 15, 2014 by this Board. This exemption is commonly called the common sense exemption. The activity is covered by the general rude that CEQA applies only to projects which have the potential for causing a significant effect on the environment, There is no possibility that this activity, which is, the proposed approval of the purchase of certain real property in Santa Ana, will have a significant effect on the environment. AM j or action related to this property which may constitute a nroiect will be reviewed for compliance with CE OA," This is not an accurate statement of clear law on this point. Indeed, it goes without saying that the County cannot simply buy property with public funds without a public purpose for that expenditure. This property purchase is for the purpose stated in the PSA: [A] "multi- service center and shelter" .. , . To now state that the action is a mere purchase of property without including the purpose of that purchase, a homeless shelter, is a thinly -veiled attempt to skirt the requirements of CEQA. Furthermore, the last statement by Staff, as highlighted above, is a misnomer -- there is currently no requirement to conduct CEQA review of the homeless 40911FAA - N1500.1 November 13, 2014 Page 3 shelter project contained in the PSA or in any of the approvals at the July 15 meeting or proposed for the November 18 meeting. Also, the action to acquire this property for use as a homeless shelter is, consistent with common sense application, not exempt from CEQA. There is no doubt that this project may cause a significant impact on the environment. The CEQA categorical exemption cited by Staff, by its own terms, applies only "where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment ...." (See CEQA Guidelines Section 15061(b)(3)) This proposed action, the acquisition of property for a 200+ bed homeless shelter, does not pass muster under that standard. The California Supreme Court spoke to this situation when, in Save Tara v, City of West Hollywood (2008) 45 Cal.4" 116,138, it said: [W]e apply the general principle that before conducting CEQA review, agencies must not take any action' that significantly furthers a project 'in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project. "' (cite omitted). The Court further elaborated that future reviewing courts would be considering "whether, as a practical matter, the agency has committed itself to the project as a whole or to any particular features, so as to effectively preclude any alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project." Id at 139. In Save Tara, the contract at issue, terminable at the will of the city manager, provided for city CEQA compliance before the property could be transferred to the developer. The fact that the contract did not contain an irrevocable prerequisite that CEQA review first be conducted before the transaction could be completed led to the Court's ruling. The Court held that such a contract constituted a project approval that had avoided environmental review under CEQA, hi the current instance, the County's agreement with the owner for the purchase of 1217 Nomuandy Place for the implementation of a homeless shelter does not even feign to first be conditioned upon required. CEQA review. The County's PSA, that contracts for the purchase of current industrial property for a "multi - service center and shelter ", if consummated, would be an irrevocable, $3.6 Million commitment to the homeless shelter project without first requiring environmental analysis consistent with CEQA. hideed a consummated transaction for the purchase of 1217 Normandy Place would effectively preclude the consideration of alteratives acid mitigation measures, including consideration of the no project alternative. The commitment of $3.6 Million of public funds is perhaps the most certain of actions demonstrating the irrevocable Intent to locate a homeless shelter at 1217 Normandy Place that could occur. Nevertheless, additional actions affecting the proposed transaction have recently occurred. As you likely know, the City of Santa Ana considered the propriety of the County's 4091186,1 -N1500A .r_ November 13, 2014 Page 4 proposed homeless shelter at 1217 Normandy Place at its October 21, 2014 council meeting. Several members of the public, Supervisor John Moorlach, and State Senator Lou Correia all spoke to the issues associated with the City's September 2013 adoption of a zoning provision that would allow a homeless shelter to be located within a 995 acre area of the City, the County's intended purchase of 1217 Normandy Place for use as such a homeless shelter within that area, and the apparent lack of notice, outreach and involvement of the community in the selection of a homeless shelter site at 1217 Normandy Place. Supervisor Moorlach's comments were against the city council's proposed adoption of a moratorium on the implementation of the zoning ordinance permitting a homeless shelter, and rather were an indication that he, and perhaps other_ members of the Board of Supervisors, intended to proceed with the purchase of 1217 Normandy Place :for a homeless shelter. After further discussion the Santa Ana city council unanimously adopted a 45 day moratorium halting the implementation of the zoning ordinance that would permit a homeless shelter within the 995 acre area, including at 1217 Normandy Place. The adoption of this moratorium seemingly prevents the County from meeting its Conditions Precedent, as Purchaser, under the PSA to consummate the transaction in that with the moratorium in place, the County will not be in "receipt of all necessary governmental permits, licenses, conditional use permits and approvals for the use of the Property as a tnaiti- service center and shelter." (See PSA Section 5(a)(ii)) The County should immediately provide written notice to the Seller under the PSA that it rejects the purchase because 1) the agreement is contrary to law in that the PSA is not conditioned on prior environmental review consistent with CEQA, and 2) the City's moratorium blocks the County's intended use at the site. If the County remains silent for the remainder of the Feasibility .Period under the PSA, the County will be deemed to have accepted the condition of the property and that condition precedent to the sale will be deemed to have been satisfied. (See PSA Section 4(c)) The amendment to the PSA indicates, among other things, that the PSA .Feasibility Period expires on November 20, 2014. Action to be Taken What the County must do in this instance is disavow the contract and. reject the purchase of the property. It must do so by providing written notice to the seller disapproving of the property prior to the expiration of the "Feasibility Period" so as not to be deemed to have approved of the property. If the County falls to disavow the contract and closes the transaction with the seller, it will have squandered nearly $4 Whou in public funds on the purchase of property that cannot be used for the stated purpose because statutory prerequisites will have been flaunted. If the County cannot purchase property except for a public use, which it cannot, and the use here cannot be engaged due to the failure to first comply with CEQA, to what end is the County committing public funds? To be certain, our clients, and the community at large, have been engaged and will continue to be engaged in assisting in identifying and evaluating a suitable site closer to existing services focused on the homeless. We all understand there is a serious and timely need to serve 4091186.1 •-N1500.1 November 13, 2014 Page 5 the homeless in our community. A full service emergency shelter needs to be established, but the project needs to be undertaken consistent with existing law and proper, community -based relations, This letter is meant to provide the County with the opportunity to correct the current statutory wrong. If the County proceeds with the PSA, then we must proceed with the CEQA petition to enforce statutory prerequisites and public project environmental review where the electeds have refused to do so. This could mean unwinding the sale transaction and suffering, at the public's peril, significant damages that the seller may seek, If the petition must proceed as referenced here, then the administrative record should include not only this letter but also the record of the City's adoption of the moratorium including Supervisor Moorlach% comments. Your prompt attention and written affirmation of the County's disavowal of the PSA would be appreciated. Sincerely yours, ALVARADOSMITH koj,sA�r4Corporfe poration �rfn i t W- Messionation KEMlhk cc: 1300 Normandy Properties, LLC Deputy County Counsel, Nicole Walsh 31PJ1186J • -NISOM