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HomeMy WebLinkAbout09 - Appeal for The Garden Office and Parking Structure Proposed at 215 Riverside Avenue (PA2019-023) - Appellants Attorney EmailReceived After Agenda Printed April 14, 2020 Agenda Item No. 9 From: Harp, Aaron To: "Aaron J. Ehrlich" Subject: FW: City of Newport Beach: April 14, 2020 City Council Meeting Date: Friday, April 10, 2020 9:18:22 AM Hi Aaron, Additional information on how the public can participate at this meeting. It is on the agenda; however, I wanted to make sure you saw this information. r-- - April 14, 2020 City Council Meeting Post Date: 04/09/2020 11:00 am THE AGENDA PACKET IS AVAILABLE FOR VIEWING FOR THE APRIL 14, 2020 CITY COUNCIL MEETING Closed Session will begin at 6:30 p.m. Regular Meeting will begin at 7:00 p.m. - Click here to view the City Council Meeting agenda and packet - SPECIAL NOTICE REGARDING COVID-19 On March 4, 2020, Governor Newsom proclaimed a State of Emergency in California as a result of the threat of COVID-19. On March 12, 2020, Governor Newsom issued Executive Order N-25-20, which allows Council Members to attend City Council meetings telephonically. Please be advised that to minimize the spread of COIVD-19, some, or all, of the Newport Beach City Council Members may attend this meeting telephonically. Also, please be advised that on March 17, 2020, Governor Newsom issued Executive Order N-29-20, which allows for the public to participate in any meeting of the City Council telephonically or by other electronic means. Given the health risks associated with COVID- 19, the City of Newport Beach has decided to not have City Council Chambers open to the public for this meeting. As a member of the public, if you would like to participate in this meeting, you can participate via the following options: 1. You can submit your questions and comments in writing for City Council consideration by sending them to the City Clerk at cityclerk(@newportbeachca.gov. To give the City Council adequate time to review your questions and comments, please submit your written comments by Monday, April 13, 2020, at 5:00 p.m. 2. In addition, members of the public can participate in this meeting telephonically. Specifically, the meeting will be viewable on NBTV and live streamed on the City's website. If you are watching the meeting on NBTV or via the live stream, during the meeting, phone numbers for the public to call and to comment on specific agenda items will be posted on the screen. When you call, you will be placed on hold until it is your turn to speak. Please note that only twenty (20) people can remain on hold at a time. If you call in to speak on an item and the line is busy, please call back after a few moments. The City will ensure that it allows enough time per item for everyone to call in to comment. Please know that it is important for the City to allow public participation at this meeting. If you are unable to participate in the meeting via the process set forth above, please contact the City Clerk at (949-644-3005 or cit)zclerk(@newportbeachca.gov) and she will attempt to accommodate you. While the City does not expect there to be any changes to the above process for participating in this meeting, if there is a change, the City will post the information as soon as possible to the City's website. The City of Newport Beach thanks you in advance for continuing to take precautions to prevent the spread of the COVID-19 virus. Meetings are held in the City Council Chambers, located at 100 Civic Center Drive. Download a map for the City Council Meetings. Contact the City Clerk's Office at 949-644-3005 with any questions. Having trouble viewing this email? View on the website instead. Change your eNotification preference. Unsubscribe from all City of Newport Beach eNotifications. LIA From: Harp, Aaron To: Brown, Leilani Cc: Jurjis, Seimone Subject: FW: 215 Riverside Appeal Hearing Date: Friday, April 10, 2020 8:50:48 AM Attachments: imaae001.ma Please include this email in administrative record for this item. Aaron C. Harp City Attorney City of Newport Beach 100 Civic Center Drive Newport Beach, CA, 92660 Phone: (949) 644-3131 Fax: (949) 644-3139 Email: aharp@newportbeachca.gov CONFIDENTIALITY NOTICE: The information in this e-mail message is intended for the confidential use of the addressees only. The information is subject to the attorney-client privilege and/or may be attorney work -product. Recipients should not file copies of this e-mail with publicly accessible records. If you are not an addressee or an authorized agent responsible for delivering this e-mail to a designated addressee, you have received this e-mail in error, and any further review, dissemination distribution, copying or forwarding of this e-mail is strictly prohibited. Moreover, such inadvertent disclosure shall not compromise or waive the attorney-client privilege as to this communication. If you received this e-mail in error, please notify us immediately at (949) 644- 3131. Thank you. From: Aaron J. Ehrlich <aehrlich@berdingweil.com> Sent: Wednesday, March 18, 2020 4:51 PM To: Ramirez, Gregg <GRamirez@newportbeachca.gov> Cc: Harp, Aaron <aharp@newportbeachca.gov> Subject: RE: 215 Riverside Appeal Hearing [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Thank you for the confirmation, Gregg. Again, we very much appreciate the City's understanding and accommodation during this unprecedented time. Best, Aaron I Ehrlich I Partner aehrlichaberdingweil.com I Profile I vCard =D1 G I VIS=I L ATTORNEYS AT LAW CELEBRATING 3 YEARS OF EXCELLENCE WALNUT CREEK COSTA MESA 2175 N California Blvd. 575 Anton Blvd. Suite 500 Suite 1080 Walnut Creek Costa Mesa CA 94596 CA 92626 P 925.838.2090 P 714.429.0600 F 925.820.5592 F 714.429.0699 SAN DIEGO 1660 Hotel Circle North Suite 701 San Diego CA 92108 P 858.625.3900 F 858.625.3901 www.berdinaweil.com I Linkedln I Facebook This communication is intended to be protected by all applicable privileges, including those protecting attorney client communications and attorney work product information. Use of this communication or its information without approval is prohibited. From: Ramirez, Gregg <GRamirez(@newportbeachca.gov> Sent: Tuesday, March 17, 2020 5:23 PM To: Aaron J. Ehrlich <aehrlichPberdingweil.com> Cc: Harp, Aaron <aharpPnewportbeachca.gov> Subject: Re: 215 Riverside Appeal Hearing Aaron, We will be continuing the hearing to April 14th. I'll update you on any changes. Best regards and stay well, Gregg From: Aaron J. Ehrlich <aehrlich(@berdingweil.com> Sent: Monday, March 16, 2020 5:30:58 PM To: Ramirez, Gregg <GRamirez(@newportbeachca.gov> Cc: Harp, Aaron <aharp(@newportbeachca.gov> Subject: RE: 215 Riverside Appeal Hearing [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Thank you, I appreciate it. Best, Aaron J. Ehrlich I Partner aehrlich(@berdingweil.com This communication is intended to be protected by all applicable privileges, including those protecting attorney client communications and attorney work product information. Use of this communication or its information without approval is prohibited. -----Original Message ----- From: Ramirez, Gregg <GRamirezC@newportbeachca.gov> Sent: Monday, March 16, 2020 5:29 PM To: Aaron J. Ehrlich <aehrlich(@berdingweil.com> Cc: Harp, Aaron <aharp6Dnewportbeachca.gov> Subject: Re: 215 Riverside Appeal Hearing Hi Aaron, Wanted to let you know I've forwarded the email to my superiors and hope to have an answer for you tomorrow. Best regards, Gregg From: Aaron J. Ehrlich <aehrlich(@berdingweil.com> Sent: Monday, March 16, 2020 1:45:35 PM To: Ramirez, Gregg <GRamirez(@newportbeachca.gov> Cc: Harp, Aaron <aharp(@newportbeachca.gov> Subject: 215 Riverside Appeal Hearing [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Dear Gregg, I work out of and resident in Contra Costa County, which has just set forth a shelter -in-place order as of midnight tonight. Non-essential travel is prohibited, including for non-essential businesses like my law firm. This regrettably means that I am not legally permitted to travel to the City of Newport Beach for the public hearing on appellants' appeal of the 215 Riverside project, which I understand presently is scheduled to occur on March 24, 2020. As appellants' counsel it is essential, and consistent with my clients' due process rights, that I am able to be present to participate in the public hearing, including speaking for my clients, answer any questions the Councilmembers may have, responding to the respondent's comments, and contemporaneously consulting with my clients. Given the shelter -in-place order, it is not possible for me to be present for a public hearing on March 24, 2020. As such, I respectfully request that the hearing be continued until such time that I can be physically present. It saddens me to be forced to make this request, however, I am left with no choice and must take appropriate action to protect my clients' interests. I have copied Aaron Harp, the City Attorney, on this email so his office is aware of this request as well. Kindly provide confirmation that the public hearing will be so rescheduled. My clients and I appreciate your and the City's understanding and accommodation in this unprecedented situation. Best, Aaron J. Ehrlich I Partner aehrlich(@berdingweil.com<mailto:aehrlich(@berding-weil.com> I Profile<httl2://www.berding- weil.com/attorneys/Aaron-Ehrlich > I vCard<http://www.berding- weil.com/vcard/Aaron%20J.%20Ehrlich.vcf> [cid:image001.png(@01D5FB99.254DA030] WALNUT CREEK COSTA MESA SAN DIEGO 2175 N California Blvd. Suite 500 Walnut Creek CA 94596<https: oo.gl/maps/RGgVtPriyx82> 575 Anton Blvd. Suite 1080 Costa Mesa CA 92626<https: oo.gl/maps/LcpFpsPFRb32> 1660 Hotel Circle North Suite 701 San Diego CA 92108<https://goo.gl/maps/SNrWAH6VBM22> P F 925.838.2090 925.820.5592 P F 714.429.0600 714.429.0699 0 858.625.3900 858.625.3901 www.berdingweil.com<http://www.berding-weil.com/> Linkedln<https://www.linkedin.com/company/berding-&-weil-llp> Facebook<htti2s://www.facebook.com/BerdingWeil/> This communication is intended to be protected by all applicable privileges, including those protecting attorney client communications and attorney work product information. Use of this communication or its information without approval is prohibited. Received After Agenda Printed April 14, 2020 Agenda Item No. 9 From: Harp. Aaron To: "Aaron J. Ehrlich" Cc: Ramirez, Greaa; Nova. Makana; Juriis. Seimone; Susan Hori (shori(cbmanatt.com) Subject: RE: Public Hearing on Appeal Regarding 215 Riverside (Garden Office and Parking Structure) Date: Friday, April 10, 2020 9:14:41 AM Attachments: 09 - Corresoondence.Ddf Good Morning Mr. Ehrlich, Thanks for reaching out about the notice issues and your due process concerns. This matter was properly noticed for the March 24, 2020 City Council meeting and was continued to April 14, 2020, at your request. I note from a review of the file that you acknowledged receipt of the continuance to April 14 via an email sent to City staff on March 18, 2020. This matter was properly noticed and continued in accordance with law. In regards to the upcoming meeting, this matter is number 9 on the upcoming agenda. The following is a link to the agenda where you can view the staff report. https://newportbeach.legistarl.com/newportbeach/meetings/2020/4/2478_A_City_Council_20- 04-14_Agenda.pdf?id=30b79d42-6ad5-40d6-8c6f-f6436cbf194b Also, for your review, I have attached a copy of correspondence received from the applicant's attorney. In regards to presenting your client's position to the City Council, the City has offered to allow you (and your clients) to participate in the meeting in the same manner as the City Council (via WebEx). The City's Information and Technology Department is willing to work with you and your clients to make sure that you are fully able to participate at the City Council meeting. Just contact Seimone Jurjis and he will assist you in coordinating with the Information Technology Department. Also, please know that if you or your clients want to use a conference room here at City Hall, so you can all be together, we can set up a WebEx access portal in a conference room and have a City Information Technology representative there to assist you or your clients. I would think this would work for you and your clients who may need accommodation; however, if you need additional accommodations, please let me know because our interest is to ensure everyone receives a chance to be heard in regards to this item. I hope you are staying safe and please let me know how we can work together to resolve your due process concerns. Thank you, Aaron C. Harp City Attorney City of Newport Beach 100 Civic Center Drive Newport Beach, CA, 92660 Phone: (949) 644-3131 Fax: (949) 644-3139 Email: aharp(@newportbeachca.gov CONFIDENTIALITY NOTICE: The information in this e-mail message is intended for the confidential use of the addressees only. The information is subject to the attorney-client privilege and/or may be attorney work -product. Recipients should not file copies of this e-mail with publicly accessible records. If you are not an addressee or an authorized agent responsible for delivering this e-mail to a designated addressee, you have received this e-mail in error, and any further review, dissemination distribution, copying or forwarding of this e-mail is strictly prohibited. Moreover, such inadvertent disclosure shall not compromise or waive the attorney- client privilege as to this communication. If you received this e-mail in error, please notify us immediately at (949) 644-3131. Thank you. From: Aaron J. Ehrlich <aehrlich@berdingweil.com> Sent: Thursday, April 9, 2020 4:45 PM To: Dept - City Council<CityCouncil@newportbeachca.gov> Cc: Ramirez, Gregg <GRamirez@newportbeachca.gov>; Nova, Makana <M Nova@ newportbeachca.gov> Subject: Public Hearing on Appeal Regarding 215 Riverside (Garden Office and Parking Structure) [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Dear Honorable Mayor and Councilmembers, We are legal counsel for Ernest Castro, Stefanie Pilalas, Jack Staub, and Hal Woods (collectively the "Appellants") with respect to their appeal ("Appeal") of the Planning Commission's granting of Coastal Development Permit No. CD2019- 003 and Conditional Use Permit No. UP2019-003 for the proposed project located at 215 Riverside ("Proposed Project"). A copy of Appellant's Appeal Application is attached to this email for your reference. Though we have yet to be provided any formal notice of the City Council's public hearing on the Appeal ("Appeal Public Hearing") consistent with the mandates of the Newport Beach Municipal Code and Appellants' procedural due process rights guaranteed under the U.S. and State Constitutions, we have been informed by Staff that the Appeal Public Hearing has been scheduled to occur at the City Council's April 14, 2020 meeting. Given, in part, the current COVID-19 pandemic, the Statewide shelter in place order, the closure of the City's facilities, the failure of the City to provide reasonable accommodations for Appellants and members of the public to participate in the Appeal Public Hearing, and the City's failure to provide formal notice of the Appeal Public Hearing consistent with the requirements of the Newport Beach Municipal Code, Appellants' procedural due process rights, and the public's procedural due process rights, Appellants object to the Appeal Public Hearing proceeding on April 14, 2020 and request that the City Council continue the Appeal Public Hearing until the Statewide shelter in place order has been lifted and both Appellants and members of the public may attend the Appeal Public Hearing in person. We are disappointed to be forced to bring this matter to your attention and request your intervention consistent with public health norms as the City's Staff has not substantively responded to our emails in the attached email thread of April 2, 2020 and April 6, 2020 requesting that the Appeal Public Hearing be so continued. Instead, the only response we have received to our April 2, 2020 email is that the City is "moving forward with the public hearing as planned on April 14th'" as indicated in the attached email thread, and concerningly, no response whatsoever has been received to our April 6, 2020 email. An overwhelming majority of cities and counties across California have deferred business on all non -emergency business until the Statewide shelter in place order has been lifted. For reasons unknown and unspecified to Appellants, the City apparently refuses to do so here. Patently inconsistent messages from the City eliminates any chance of a fair and legally -compliant public hearing. Just yesterday the City posted on its website and circulated an email to the public that the City's facilities, including "City Hall," are closed "to the public through May 3 to slow the spread of COVID-19." Nowhere in the announcement and email does the City note that the City Council intends to proceed with meetings involving public hearings during this time. Accordingly, members of the public receiving or viewing this announcement will logically believe that there will not be any City Council meetings through May 3, 2020. As reflected in the hundreds of pages of letters received by the Planning Commission in preparation for its public hearing on the Proposed Project, and the dozen plus members of the public who spoke during the same public hearing, the Proposed Project is a highly controversial matter that has garnered extensive public scrutiny. The City's communications suggesting that it is closed for business will cause interested and impacted members of the public to not participate in the Appeal Public Hearing should it proceed on April 14, 2020. Moreover, since the current Statewide shelter in place order prohibits members of the public from leaving their homes except for essential purposes, no member of the public, including the Appellants and I, can attend the Appeal Public Hearing in person should it proceed on April 14, 2020. More broadly, it is unknown whether anyone can or will attend in person. The City's Staff indicated that I may attend the hearing via "webex." I don't know what "webex" is or how it operates. It is unknown whether the Appellants and members of the public who intend to provide public testimony during the Appeal Public Hearing may participate via "webex" or otherwise. No information has been posted or shared with me or the public how anyone, besides me, may participate in the Appeal Public Hearing. Simply put, with two business days before the intended hearing, it is far too late to remedy this profound problems. Specific to Appellants, it simply is not feasible for me to be participating on one platform and for my clients to participate through a separate platform and we cannot meaningfully prosecute our appeal remotely participating. With a handful of clients, several of whom are over 65 years of age, I cannot coordinate with my clients during the hearing as we would be able to through an in-person hearing. Further, given the elderly age of several of my clients, participating telephonically or over "webex" presents serious reasonable accommodation challenges due to hearing impairment and other medical conditions. The foregoing fatal deficiencies and shortcomings exemplify why the Appeal Public Hearing cannot lawfully proceed in absentia on April 14, 2020. Doing so would violate both the U.S. and California Constitutions and the Newport Beach Municipal Code and guarantee needless litigation when the City has far more pressing immediate obligations at hand — i.e., saving lives. As explained above, given the number of Appellants and the lack of accessibility for several elderly clients, being forced to participate in this public hearing by "webex" or telephone — or violating the law and risking potentially deadly health consequences by attending the hearing in person —fails to afford my clients a reasonable opportunity to be heard in contravention of their procedural due process rights guaranteed by the U.S. and California Constitutions. It also eliminates some of my clients' ability to provide oral testimony at the Appeal Public Hearing which the City Council is required to hear under Newport Beach Municipal Code Section 20.64.030(C)(3)(c) and again is a procedural due process guarantee afforded by the U.S. and California Constitutions. These same violations will also apply to other members of the public who would like to participate in the Appeal Public Hearing but will be unable to due to the City's instruction that it is closed for business, the City's failure to provide any instructions for how to participate in the hearing, and the City's failure to provide reasonable accommodations for the participation of impaired members of the public. Lastly, neither I nor the Appellants have timely received the required notice of public hearing for the Appeal Public Hearing to occur on April 14, 2020 consistent with Newport Beach Municipal Code Sections 20.62.020 and 20.64.030(C) (2). Those sections require that a notice of public hearing containing certain information be provided 10 days before the public hearing on an appeal. No formal notice of public hearing, let alone one consistent with the minimum requirements, has been provided to us, thereby invalidating the City's ability to lawfully proceed with a hearing on April 14, 2020. For the above reasons, we request that the City Council continue the Appeal Public Hearing until the shelter in place order is lifted and both all of the Appellants and interested members of the public can participate in a fair and transparent public hearing on this matter. Please note that our participation during the Appeal Public Hearing on April 14, 2020, should that even be possible given the City's failure to provide meaningful instructions as to how we may participate, will be under protest for the above-specified reasons and Appellants reserve all rights to assert the above and other arguments in an appropriate legal proceeding, including, in part, under Code of Civil Procedure Section 1094.5. Thank you very much for your time, consideration, and understanding. Best, Aaron J. Ehrlich I Partner 925.683.4969 aehrlich dberdinaweil.com I Profile I vCard This communication is intended to be protected by all applicable privileges, including those protecting attorney client communications and attorney work product information. Use of this communication or its information without approval is prohibited. a COSTA MESASAN DIEGO WALNUT CREEK 2175 N California Blvd. 575 Anton Blvd. 1660 Hotel Circle North Suite 500 Suite 1080 Suite 701 Walnut Creek Costa Mesa San Diego CA 94596 CA 92626 CA 92108 P 925.838.2090 P 714.429.0600 P 858.625.3900 F 925.820.5592 F 714.429.0699 F 858.625.3901 www.berdinaweil.com I Link In I Facebook This communication is intended to be protected by all applicable privileges, including those protecting attorney client communications and attorney work product information. Use of this communication or its information without approval is prohibited.