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.