Filed 10/22/18 Tennis Club Preservation Society v. City of Palm Springs CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Affirmed.

Law Office of Babak Naficy, Babak Naficy and Jamie Garretson for Plaintiff and Appellant.

Blasdel Guinan Lawyers, Diane C. Blasdel; Law Office of Emily Perri Hemphill and Emily Perri Hemphill for Defendants and Respondents.

Plaintiff and appellant Tennis Club Preservation Society (Club) initiated this action to enjoin defendants and respondents City of Palm Springs and Palm Springs City Council (collectively, Palm Springs) from issuing building and other permits necessary for completing phase III of a residential development known as the St. Baristo Project (Project) in the historic Tennis Club Neighborhood unless and until all conditions of approval and requirements of the Palm Springs Municipal Code (PSMC) are met. The trial court denied the request for injunctive relief, and the Club appeals, challenging the judgment. The Club contends (1) phase III violates the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; CEQA) because it does not comply with the mandatory mitigation measures; and (2) phase III must be reviewed and approved by Palm Springs because too much time has lapsed since completion of construction on phase II of the Project. We reject these contentions and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 25, 2003, real parties in interest John Wessman and Baristo Group, LLC, a California corporation (collectively, Wessman), submitted an application to Palm Springs for the Project, a planned development district (PDD-288), consisting of 12 two-story buildings with three units per building, or 36 dwelling units. Tentative tract map (TTM) 31887 was subsequently submitted. Prior to finalizing the application for the Project, two neighborhood meetings were held wherein Wessman “provided the participants with two site plans for the project in order to determine neighborhood preferences. One plan proposed drive aisles within the project to be adjacent to property lines at locations that abutted single-family and multi-family properties. The second option site plan proposed two-story structures adjacent to the property lines and drive aisles entering the site at mid-street locations.” The neighbors requested only that “second story balconies . . . not [be] located on the north elevations of the two tri-plex units adjacent to single-story properties and one two story unit was changed to single story.” As a result of these meetings, the Project was revised such that “a two story unit located in the northern section of the [P]roject and adjacent to existing single-story residential has been replaced with a single story unit.”

About October 21, 2003, the Palm Springs planning commission considered and recommended approval of the Project and adoption of the initial study (IS) and mitigated negative declaration (MND). On October 24, 2003, Palm Springs made the IS and environmental assessment (EA) available to the public. The Project was described as consisting of 13 buildings: “twelve (12) two-story triplex buildings and one (1) duplex building for a total of 38 condominium units.” The period for review and comment was set from October 27 to November 26, 2003.

On November 26, 2003, following a noticed public hearing, the planning commission voted to recommend approval of the Project and approval of the IS/MND under CEQA. The Project was again discussed at a noticed public hearing on December 17, 2003. At the close of the hearing, Palm Springs approved the Project and ordered the MND filed. Before final acceptance of the Project, Palm Springs identified certain conditions that it required to be completed. Included in the list was the following: “6. If, within two (2) years after the date of approval by the City Council of the preliminary development plan, the final development plan, as indicated in [PSMC] Section 94.03.00(I), has not been approved by the Planning Commission, the procedures and actions which have taken place up to that time shall be null and void and the Planned Development District and Tentative Tract Map shall expire. Extensions of time may be allowed for good cause. [¶] The final development plans shall be submitted in accordance with [PSMC] Section 94.03.00 of the Zoning Ordinance. Final construction plans shall include site plans, building elevations, floor plans, roof plans, fence and wall plans, entry plans, landscape plans, irrigation plans, exterior lighting plans, sign program, site cross sections, property development standards, street improvement plans and other such documents as required by the Planning Commission. Final construction plans shall be submitted within two years of the Planning Commission approval.”

In May 2004,[1] Wessman requested “the processing of a revised tract map for financial purposes that incorporates contiguous property and delineates the map into nine (9) numbered lots and four (4) lettered lots allowing phasing of construction.” The MND was amended to reference this change. The director of planning and zoning recommended approval of the request. On May 19, 2004, a public hearing was held; Wessman’s request was discussed and approved. Building permits for phases I and II were issued on April 5, 2005. In September 2005, Wessman applied for a revision to the final development plans for the Project to move the six-foot courtyard walls to the property lines of the street to comply with prospective buyers’ desire for larger courtyards. The planning commission approved the application. By 2005, phases I and II (27 of the 38 units) were completed; however, phase III had yet to be constructed.

On July 22, 2013, Wessman sought an amendment to the third and final phase of the Project, and approval of TTM 36626, which would amend the previously approved TTM 31887. The amendment would subdivide phase III of the property into 11 lots (consisting of six detached individual residences, two two-story townhomes, and three zero lot line individual townhomes (Lugo Lofts)) and allow for a different style of architecture that is not consistent with the Project as proposed. The planning commission staff report for the requested amendment noted that “[PSMC] Section 94.03.00(G) allows the Planning Commission to modify Final Development Plans of previously approved Planned Development District projects. According to the Code, the Commission may approve minor architectural or site changes that do not affect the intent of the PD.” Included in the conditions to be completed prior to final acceptance of the revised phase III was the following administrative condition: “All the previously approved development standards of Planned Development District 288 shall apply to the amended PDD 288.” The period for review and comment on the draft MND was set from August 16 to September 4, 2013.

As a result of Wessman’s request for an amendment, several neighbors, including some living in phases I or II of the Project, wrote to Palm Springs expressing concern about the changed plan for phase III (now Lugo Lofts) and its impact on phases I and II. On September 30, 2013, the Club sent a letter to the department of planning and building requesting documents and information concerning the approved plan for phase III of the Project.

On October 23, 2013, the planning commission recommended approval of Wessman’s request to amend phase III. However, that same month, Wessman requested additional time to resolve matters relating to the construction of the remaining 11 units of the third and final phase, and a modification of the existing tract map (TTM 31887).

In approximately March 2016, Wessman submitted plans to Palm Springs for the construction of phase III, located in the northern section of the Project. These plans no longer sought to subdivide phase III of the property into 11 lots (Lugo Lofts-six detached individual residences, two two-story townhomes, and three zero lot line individual townhomes), but returned to the original plan of constructing condominium units, albeit with minor changes. The staff for the department of planning services reviewed and approved the plans “in accordance with [PSMC] 94.03.00” and determined that they conformed to those previously approved by Palm Springs on December 12, 2003.

On June 10, 2016, the Club sought to enjoin Palm Springs from issuing any permits to Wessman for phase III by initiating this action challenging the Project’s compliance with CEQA and the applicable municipal code section. By way of a second amended petition for writ of mandate and complaint for declaratory and injunctive relief (the petition), the Club alleged Wessman materially misrepresented the Project to the neighborhood in order to induce them not to oppose. The Club further alleged that phase III failed to “comply with the conditions of approval previously adopted by [Palm Springs] as required mitigation measures needed to reduce the Project’s impacts to a less than significant level.” Finally, the Club asserted that since “[c]onstruction on the earlier phases of the Project ended in 2005 and no construction activities ha[ve] taken place since then,” phase III may not be implemented until the planning commission has reviewed and approved it, according to PSMC section 94.03.00(I), [“[f]or any phased planned development, cessation of development for a period of two (2) years or more shall require planning commission review and approval prior to further development of the district unless part of an approved development agreement”].

On June 9, 2017, the trial court denied the petition. The matter was set for a court trial on the fraud claim; however, the Club dismissed the claim with prejudice. Judgment was entered on August 28, 2017.

II. DISCUSSION

The Club contends (1) phase III violates CEQA because it does not comply with the mandatory mitigation measures; and (2) phase III must be reviewed and approved by the planning commission prior to further development because too much time has lapsed since the completion of construction on phase II. We reject these contentions and affirm.

A. Phase III Complied with the Mandatory Mitigation Measures.

The Club contends that phase III of the Project does not comply with the required mitigation measures approved in the IS/MND. Specifically, it argues that “instead of reducing the height of a building on the Project’s northern border to a single-story, [Wessman] added a single-story building to the northern border.” We agree that an additional building was added; however, this addition was approved in December 2003.

The Project’s preliminary plans, dated September 23, 2003, show 12 two-story buildings. However, this changed after two neighborhood meetings were held. Two site plans were presented to neighbors: One “proposed drive aisles within the project to be adjacent to property lines at locations that abutted single-family and multi-family properties.” The other “proposed two story structures adjacent to the property lines and drive aisles entering the site at mid-street locations.” The neighbors stated their preference for “two story structures adjacent to the property lines and drive aisles entering the site at mid-street locations.” The neighbors only requested that “second story balconies . . . not [be] located on the north elevations of the two tri-plex units adjacent to single-story properties and one two story unit was changed to single story.”[2] Based on the neighborhood’s input and the planning staff’s aesthetic analysis, the plans were revised accordingly. The revised plans reconfigured the drive aisles and showed the added single-story duplex, for a total of 38 units.

On October 24, 2003, Palm Springs made the IS and EA for the Project available to the public. At that time, the Project was described as consisting of 13 buildings: “twelve (12) two-story triplex buildings and one (1) duplex building for a total of 38 condominium units.” The drawings depicted 13 buildings, including a single-story duplex in the northern section of the Project, adjacent to the existing single-story residence. More particularly, the line of sight study portrayed what a person’s line of sight would be when standing in the rear yard of the existing residence. The Project was approved without challenge.

Wessman submitted the final plans for phase III in 2016 and the Palm Springs planning staff reviewed them in accordance with PSMC section 94.03.00, concluding that all of the buildings “in their shape, form, height and location” would remain the same as the plans previously approved on December 12, 2003. Contrary to the Club’s assertion, phase III complies with the mitigation measures contained in the IS/MND because the final plans for phase III conform with those approved on December 12, 2003. The Club’s challenge to the increase from 12 buildings to 13 buildings is time-barred; the time to challenge it was in 2003. (Pub. Res. Code, § 21167; Committee for a Progressive Gilroy v. State Water Resources Control Bd. (1987) 192 Cal.App.3d 847, 857-859; Concerned Citizens of Palm Desert, Inc. v. Bd. of Supervisors (1974) 38 Cal.App.3d 257, 265 [“A plaintiff who has unduly delayed seeking equitable relief to the prejudice of a defendant may be barred by the doctrine of laches.”].)

B. Phase III Was Not Subject to Rereview and Reapproval by the Planning Commission.

Citing PSMC section 94.03.00(I)(2),[3] the Club contends Palm Springs may not issue construction permits for phase III without review and approval of this final phase of the Project by the planning commission. Palm Springs contends that because the Project was not processed as a phased planned development, PSMC section 94.03.00(I)(2) does not apply, and there was no need for reapproval by the planning commission. We agree with Palm Springs.

The parties disagree on whether the Project is a phased planned development. The Club contends that the record “conclusively establishes the Project is phased” and subject to PSMC section 94.03.00(I)(2) because Wessman “described the Project as phased and sought [Palm Spring’s] approval of a phased project.” In support of its contention, the Club argues that the record contains various references to the word “phasing.” However, each “phasing” reference is a reference to the phasing of TTM 31887 only, not PDD-288.[4]

Pointing out that the purpose of PDD-288 is to define the specific development standards for the Project’s buildings, while the purpose of a TTM is to define the Project’s division of land and improvements, Wessman contends that a TTM may be phased to allow the bonding and construction of street works and utilities in stages, rather than having to bond and install all improvements for the entire project at one time. In this case, he argues that the “ONLY phasing referenced in the [record], and referred to by [the Club], pertains to the phasing of [TTM 31877]” and the Club erroneously seeks to terminate the planned development (which was not phased) because of changes to the tract map (which was phased for financing). The record supports Wessman’s argument.

In Wessman’s application for approval of the Project, he was asked whether the Project is related to a larger project or series of projects, and if so, he was asked to describe “how this project relates to other activities, phases and developments planned or now underway.” In response, Wessman replied, “N/A.” As approved in 2003, the Project includes PDD-288 and TTM 31887, two separate entitlements: PDD-288 defines the specific development standards for the Project’s buildings, while TTM 31887 defines the division of land and improvements for the Project. Wessman planned to construct the Project in phases: I, II, and III. By 2005, phases I and II (27 of the 38 units) were completed.

Work on the final phase ceased until 2013, when Wessman sought to amend TTM 31887, replacing it with TTM 36626, which would have subdivided phase III of the property into 11 lots (consisting of six detached individual residences, two 2-story townhomes, and three zero-lot-line individual townhomes). When the Club and neighbors expressed concern about the changed plan for phase III and its impact on phases I and II, Wessman postponed further action on phase III.

In approximately March 2016, Wessman proceeded with phase III as defined in PDD-288 and TTM 31887 by requesting approval of his final development plans. In a letter dated May 24, 2016, the director of planning services stated that “[s]taff has reviewed the request in accordance with 94.03.00.” Staff determined that “[a]ll buildings in their shape, form, height and location will remain the same as approved by City Council on December 12, 2003”; “[t]he architectural vernacular will remain consistent with the plans by City Council”; and “[t]he proposed revisions are in keeping with the intent of the Planned Development District, PD-288.”

Based on the record before this court, PDD-288 was not approved, nor required, to be built in phases. As such, PSMC section 94.03.00(I)(2) does not apply to the Project. However, because Palm Springs approved phased TTM 31887 to accommodate the planned development district, PSMC section 94.03.00(I)(3) is applicable. PSMC section 94.03.00(I)(3) provides: “Planned development districts which are approved in conjunction with an approved disposition and development agreement (DDA) and/or subdivision map shall not terminate if substantial construction has commenced prior to termination of the DDA and/or subdivision map.” TTM 31887 was approved in 2004 and recorded. Construction on the Project commenced and 27 of the 38 units were constructed prior to 2005. Because substantial construction has commenced prior to termination of the map, the planned development has not terminated.

For the above reasons, we conclude that the Project is not a phased planned development that would require the planning commission to rereview and reapprove phase III.

III. DISPOSITION

The judgment is affirmed. Respondents are awarded costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MILLER

J.