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PP-CUP-EA-CZ 16-280 - Supplmnt Info PDCC
Klassen, Rachelle From: Lisa Theodoratus <lisatheo@msn.com> Sent: Friday, May 04, 2018 4:37 PM To: Aylaian, Lauri Cc: Klassen, Rachelle; Ceja, Eric; Stendell, Ryan; Robert.Hargreaves@bbklaw.com Subject: Additional information RE: PDCC - request for information - O&M agreement Hi Lauri & All I now have a copy of both the city attorney's letter dated 4/30 and from the developers attorney dated 4/19 and it looks like we do need some information from 2005 when the O&M was created. The developers attorney suggests that it was not the city's intention to preserve the golf course/open space and that is false, I was there and involved. Has the city seen the agreement between the developer and the HOA? I have a copy of that document and it is very flawed giving no real protection to the remaining portions of the golf course and so if this infill were to be approved the city could be faced with yet another infill request in a few years. Also the HOA entered into this agreement without the knowledge or consent of the HOA members, especially the 47 HOA members that would be damaged by the development, all of the homes surrounding area "C". The developers attorney also stated that the proposed development is not inconsistent with the HOA's CC&R's. The HOA and it's CC&R's actually have nothing to do with the "declaration of restrictions". The Declaration of Restrictions noted are totally separate documents restricting the golf course lots in favor of each residential lot within tract 2137 and tract 2283, requiring a majority of said homeowners, not the HOA to make a change. Please reference Riverside County Variance Case #409 for further documentation of the county's requirement of the Declaration of Restrictions to "insure conformance with the intent and purpose of this variance". As the HOA has nothing to do with the Declaration of Restrictions and a large portion of the proposed infill is not even inside of the HOA the city should not recognize the HOA board of directors decision to enter into a secret "settlement agreement" with the developer as the will of the homeowners of Palm Desert County Club. Thank you, Lisa Theodoratus Cell 415 720-5043 From: laylaian@cityofpalmdesert.org <laylaian@cityofpalmdesert.org> Sent: Sunday, April 29, 2018 3:03 PM To: lisatheo@msn.com Cc: rklassen@cityofpalmdesert.org; eceja@cityofpalmdesert.org; rstendell@cityofpalmdesert.org; Robert.Hargreaves@bbklaw.com Subject: RE: PDCC - request for information - O&M agreement Lisa, a I just want to confirm that you're not looking for documents and correspondence between the City and the owners (Larry Kosmont, Randy Case, Dahoon Investments, etc.) in the period leading up to the 2005 approval of the 0 & M Agreement. You're looking for communication between the City and the current owners, correct? Lauri A. Lauri Aylaian i City Manager City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 760.346.0611 X305 From: Lisa Theodoratus jmailtoaisatheo@msn.comj Sent: Friday, April 27, 2018 8:33 AM To: Aylaian, Lauri<lavlaiantacitvofpalmdesert.org> Cc: Klassen, Rachelle <rklassen@citvofpalmdesert.org>; Ceja, Eric <eceia@cityofpalmdesert.org>; Stendell, Ryan <rstendell@citvofpalmdesert.org> Subject: RE: PDCC - request for information - O&M agreement Hi Lauri There may be some confusion about what I am asking for which is the current status of the 2005 O&M agreement since discovered and presented at the city council meeting. I understand from Eric that the city attorney and the developers attorney have been discussing the legality of the document and that is what we are asking for. When I spoke to Eric I also asked for the information on forming a lighting and maintenance district (not sure if this is the correct name) as well as the paperwork for the failed PDCC proposal from about 5 years ago so that we can attempt to create something that will work for the community. Thank you, Lisa From: Iavlaian@citvofpalmdesert.org <lavlaian@citvofpalmdesert.org> Sent: Friday, April 27, 2018 8:14 AM To: lisatheo@msn.com Cc: rklassen@cityothalmdesert.org; eceia@citvofpalmdesert.org; rstendell@citvofpalmdesert.org Subject: RE: PDCC - request for information - O&M agreement Hi, Lisa — I'm treating your request as a request for public records, which means that we'll do an in-depth search of the records in each department of City Hall that may have been involved in the preparation, review, or approval of the Operation and Maintenance Agreement. When we get everything pulled together, we'll let you know that the copying cost will be and you'll have a chance to confirm that you want copies of it all. We will respond to you within ten days to tell you how long it will take to assemble all of the information. (We frequently have it all assembled within the ten days, but I can't guarantee that that will be the case.) We will exclude documents (if any) that are considered to be protected from the Freedom of Information Act. I recognize your desire to keep the Open Space zone in place on the PDCC Executive Course, and I believe that you are taking all of the appropriate steps to make your opinion known and to include it as part of the public record. However, the land use and zoning decision is one that will be made by the City Council, which is charged with making such decisions with the best interest of all residents in mind. Their decision may or may not meet with your expectations and your own preference, but I 2 assure you that each of them is considering this case carefully as they deliberate the matter. If the affected homeowners have a proposed use that would maintain the open space designation and the maintenance standards, they are certainly encouraged to work with the current property owners to effectuate it. Lauri A. Lauri Aylaian City Manager Ph: 760.346.0611 Direct: 760.776.6481 laylaian@cityofpalmdesert.org From: Lisa Theodoratus f mailto:lisatheo@msn.coml Sent: Thursday, April 26, 2018 12:46 PM To: Aylaian, Lauri <lavlaian@citvofoalmdesert.org> Subject: PDCC - request for information - O&M agreement Hi Lauri On behalf of myself and the homeowners of Palm Desert Country Club I am requesting all information related to the legal determination and/or negotiations of the Operation and Maintenance Agreement (document #2005-0780948) past, current, and future by the City of Palm Desert, McFadden Architects and/or golf course owners and all of their agents, and Palm Desert Country Club HOA. It is the expectation of the affected homeowners of PDCC that the City of Palm Desert will help us find a solution that will keep the open space zoning of the 9 hole course intact while finding a use that will uphold the maintenance standards of the above referenced document. Kind Regards, Lisa Theodoratus Owner of 77040 Utah Circle Palm Desert 415 720-5043 This email and any files or attachments transmitted with it may contain privileged or otherwise confidential information. If you are not the intended recipient, or believe that you may have received this communication in error, please advise the sender via reply email and immediately delete the email you received. 3 Klassen, Rachelle From: Cheri Grant -Simmons <cheri3352@gmail.com> Sent: Sunday, May 06, 2018 1:09 PM To: weber Subject: Palm Desert Country Club Re Zone -May 10 Meeting Dear Mayor, We are full time residents, residing at 76862 Kentucky Avenue, Palm Desert. We are currently out of town on vacation and will not be back in time for the May 10th meeting. Please vote NO change, as it is a violation of our rights as homeowners for you to consider much Tess vote a zone change, when the Operation and Maintenance Agreement was never rescinded. We bought our home because it was on a golf course, which featured a beautiful green lawn. We paid a premium price for our property because it was on a golf course. We want the Executive Course to remain as a green belt/Open Space. Thus, this will avoid a long and lengthy lawsuit against the City of Palm Desert. Vote NO please! Sincerely, Cherlyn Grant -Simmons Fredric H Simmons Sent from my iPad 1 MATTHEW T. WARD, ESQ. ADMITTED IN CA AND TEXAS WARD LAW GROUP A PROFESSIONAL CORPORATION 44-651 VILLAGE COURT SUITE 121 PALM DESERT. CA 92260 PHONE: 760.834.8210 FAX: 760.860.6600 E-MAIL: mward@mwardlawcorp.com May 7,2018 Palm Desert City Council Sabby Jonathan, Mayor 73510 Fred Waring Drive Palm Desert Ca 92260 Robert W. Hargreaves, City Attorney City of Palm Desert c/o Best Best & Krieger 74760 Highway 111, Suite 200 Indian Wells Ca 92210 RECEIVED CITY CLERK'S OFFICE PALM DESERT. " ^. 2018 MAY . 7 PM 2: 04 Re: Palm Desert Country Club- Case No 16-280. Council's Consideration of rezoning of three parcels from oven space to mixed use residential for construction of 69 condominium units on approximately 30 acres located on the former executive told course at Palm Desert Country Club To the Honorable Mayor and Members of the Palm Desert City Council and City Attorney Hargreaves: My office represents the Open Space Action Committee, which is comprised of a group of concerned citizens who reside at the Palm Desert Country Club and are directly affected by the proposed project. I have reviewed the April 19, 2018 letter from counsel for PD Holdings, LP, the owner of the Palm Desert Country Club as it relates to the Operation and Maintenance Agreement ("OMA") between the City of Palm Desert and PD Holding's predecessor Dahoon Investment Company, Inc. as recorded on September 21, 2005 in the Official Records of Riverside County as Document Number 2005-0780948. I have likewise reviewed the Memorandum from Palm Desert City Attorney Hargreaves dated April 30, 2018 re "Palm Desert Country Club Documents" as it relates to Council's "direction" that he review the Development Agreement, Operation and Maintenance Agreement, CC&R's and the April 19 2018 letter from PDCC's legal counsel. Page 1 of 6 WARD LAW GROUP A PROFESSIONAL CORPORATION I have likewise conducted a review and analysis of the Operation and Maintenance Agreement. I agree with your City Attorney's conclusion that 1) the OMA does not have a termination date; 2) the OMA remains enforceable, and 3) that it does not appear that the OMA was discharged in bankruptcy. I disagree with Mr. Hargreave's assertion that the City can "justifiably" take the position that if any portion of the Property is no longer operated as a golf course, that such portion is not required to be maintained to the Agreement's standards. I likewise disagree with many of the assertions made by Applicant's attorney Robert Patterson in his April 19, 2018 letter. I have reviewed a memorandum from Principal Planner Eric Ceja to Council, in which he confirms the uncertainty created by the City Attorney's April 30, 2018 memorandum, and recommends that "City Council direct staff to work with the Applicant to amend the OMA to clarify that it applies only to the Championship course and only so long as it is operated as a golf course." For the following reasons, my client asserts that the City cannot justifiably take a position that is contrary to the express and unambiguous language of the OMA which clearly reveals the intent that the maintenance obligations apply to the entire "Property" as defined in the OMA. 1. The Maintenance Agreement Applies to the Entire "Property", and is Not Limited to Areas Used for Golf Provided that Golf is Conducted on the Property. Recital Section "A" defines the "Property" as the real property located at 77-200 California Road in the City of Palm Desert known as the Palm Desert Golf Course, legally described in Exhibit A-1 and depicted in Exhibit A-2 attached to the agreement and incorporated into the agreement by reference. Recital Section "A" specifically states that the "Property" is "improved with certain improvements, including. but not limited to, an eighteen (18) hole golf course and a nine (9) hole executive course (collectively "Golf Course"), an approximately ten thousand (10,000) square foot clubhouse ("Clubhouse"), a storage area and maintenance yard ("Maintenance Yard") and Parking Lot ("Parking Lot"). Recital C states: "For so long as Owner operates a golf course on the Property, Owner agrees to operate and maintain the Property according to the standards set forth in this Agreement, as required under the Development Agreement." Section 3.1 of the OMA states that "Owner shall maintain the "Property and related improvements. including without limitation the Clubhouse, the Parking Lot, the Maintenance Facility and associated landscaping in accordance with this Agreement, including without Page 2 of 6 WARD LAW GROUP A PROFESSIONAL CORPORATION limitation, the Maintenance Standards for the Palm Desert Country Club attached to this Agreement as Exhibit B incorporated by this reference (the "Maintenance Standards")". Section 3.8 of the OMA states that the covenants contained therein run with the land, bind Owner's successors and assigns (which includes the Applicant), and "shall remain in effect for so long as the Property is used as a golf course facility". Applicant's counsel not surprisingly asserts that it is his "unequivocal opinion" that there are no covenants or restrictions that restrict or prohibit the entitlement and construction of the Project, and that City Council must consider the recommendation of Planning Commission to approve without any reference to this potential issue. First, this is not a "potential" issue, it is a ripe and present issue. Second, the position of Applicant's counsel appears to be unsupportable given the clear language of Recital C and Sections 3.1/3.8 of the OMA. The issue is not whether the owner must operate a golf course or golf courses on the entirety of the project as Applicant's counsel asserts. The issue is if the owner operates any golf facility on the Property then it must comply with the maintenance obligations for the entire Property. As Council is aware, it is the former 9- hole golf course area that the Applicant seeks a zone change and approval to develop. This area is clearly within the defined "Property" and clearly subject to all maintenance obligations as set forth in the OMA. Applicant's counsel does not dispute the application of the OMA, and in fact admits in his April 19, 2018 letter that PD Holdings will continue to maintain the eighteen -hole course in full compliance with the City Covenant. (letter page 2). It is unclear to me how the Applicant believes that it can pick and choose those provisions of the OMA that it wants to comply with, while asking City Council to simply disregard and ignore those provisions that it does not want to comply with, and in this case, those provisions that interfere with its approval for the zone change and development. 2. The OMA Was Clearly Intended to Apply to Maintenance of the Entire Property Including any Golf Course. and that Intent Should Not Be Disregarded. Again, Applicant's counsel takes the position in his letter that the intent of the OMA was not to prevent development for another use, such as single family residential. First, for clarification, Applicant is seeking approval for change of zone to multi -family residential. Second, the language of the OMA speaks directly to the intent of the parties by mandating City enforcement if the owner allows any materially adverse condition on any area of the Property, including any significant deterioration of the golf course. Page 3 of 6 WARD LAW GROUP A PROFESSIONAL CORPORATION Section 3.2 of the OMA states: "If at any time there is an occurrence where, in the commercially reasonable opinion of the City, a material adverse condition on any area of the Property exists in contravention of the Management Plan and/or this Agreement (a "Maintenance Deficiency") the City shall notify the Owner in writing of such Maintenance Deficiency." Section 4.3 of the OMA is entitled "Relief to Preclude Immediate Significant Deterioration of the Golf Course", and states in relevant part: "If the City identifies a Maintenance Deficiency which the City believes in its commercially reasonable opinion will result in the immediate significant deterioration of the Golf Course if not cured within a commercially reasonable time ("Urgent Maintenance Deficiency"), the City shall provide immediate written notice to Owner." The OMA applies to the Property and further applies so long as any golf operations are being conducted on the Property. The analysis is not whether the OMA restricts the owner/applicant from ceasing to use a portion of the Property as a 9-hole course. However, any such decision by the owner does not excuse or diminish the maintenance obligations as to the "Property" and to maintain said Property in accordance with the OMA maintenance standards, for as long as any portion of the Property is used as a golf course. With all due respect to the City Attorney, his statement that any other interpretation could be given to this language, is not a reasonable or justifiable interpretation, especially when section 3.8 is read in connection with sections 3.2 and 4.3. 3. The OMA Was A Stated Condition of Approval of the Development Agreement, Which Was Recorded on the Same Date as the OMA. The OMA arose as a specific condition of approval of the Palm Desert Country Club Development Agreement between the City of Palm Desert, PDCC Development LLC and Dahoon Investment Company, Inc which was recorded on the same date as the OMA. The parties to the Development Agreement received substantial benefit under the Development Agreement. To now suggest, that any provisions of the OMA (a stated condition of approval) can retroactively be cancelled, waived or rescinded, is contrary to the terms, conditions and spirit of the Development Agreement, which provided in part as follows; Page 4 of 6 WARD LAW GROUP A PROFESSIONAL CORPORATION "Whereas, the terms and conditions of this Agreement, have undergone extensive review by the City and the City Council and have been found to be fair just and reasonable" 4. The City Has Failed for Many Years to Reauire the Owner/Applicant to Comply with the Maintenance Oblisations under the OMA, and Must Not Reward Such Breach with an Amendment to the OMA. The photographs of the burned out, blighted, dilapidated area which was once occupied by the 9-hole course (and which are part of the record in this matter) clearly show that there has been little if any effort by the City of Palm Desert to enforce the maintenance obligations as to the owner/applicant under the OMA. It appears that the owner/applicant has ignored its obligations under the OMA, and made all those homeowners who have homes on and around the former 9-hole course, to endure years of blighted conditions. These maintenance obligations include the obligations under Section 2.3 that the Owner budget and expend a minimum of 1.1 million dollars annually for maintenance of the Golf Course and its facilities, and under section 2.3.2 to submit annual reports detailing money spent on the maintenance of the Golf Course. Now this same owner/applicant wants the City to reward its actions with a zone change, and approval for development of the project on the Property. The suggestion that these matters can be resolved with a simple amendment to the OMA, if so directed, would constitute the City's granting of a waiver of the owner/applicant's obligations and smacks of self -interested dealing, given the unperformed obligations of the City under the OMA. Applicant and its counsel may not like the terms of the OMA, however the language of the Agreement is not ambiguous. The OMA and the obligations therein are a covenant running with the Property. Respectfully, the comments from Mr. Ceja that the previous owners went bankrupt, that there are significant changes in the golf industry and that the sustained viability of the golf course has not been demonstrated, may all be true, but likewise irrelevant to the analysis. As Mr. Ceja states in his memo to Council, "requiring private businesses to operate at a loss is outside the scope of the City's authority". Likewise, disregarding, waiving or amending out obligations contained in the recorded OMA that run with the Property and bind this Applicant, in order to suit the owner/applicant and/or City, is likewise beyond the scope of the City's authority. Page 5 of 6 WARD LAW GROUP A PROFESSIONAL CORPORATION It is respectfully requested that this communication be presented to the Palm Desert City Council and made a part of the record so that Council can make an adequately informed decision. cc: Open Space Action Committee WARD LAW GROUP, PC. Matthew T. Ward Page 6 of 6 V RECEIVED CITY CLERKS OFFICE PALM DESERT. A. HANGIEHII The City of Palm Desert and the City Council has NO authority to change a legal document that has been active, and not enforced! OUR POSITION HAS NOT CHANGED!!! It is a violation of OUR RIGHTS for you to VOTE fora ZONE CHANGE when THE OPERATION AND AINTENANCE AGREEMENT WAS NEVER RESCINDED! We bought OPEN SPACE! We paid a premium for OPEN SPACE! We want our OPEN SPACE! PLEASE MAKE THIS LETTER, AND ATTACHMENT, PART OF THE RECORD FOR THE CITY OF PALM DESERT, CITY COUNCIL MEETING, MAY 10, 2018, Case Nos. PPICUP/EAICZ 16-21g (Christopher McFadden/McFadden Architects, Applicant). -< May 7, 2018 Lynn rid Gerry Schutz, G MAL OWNS NCE 1979 76845 Kentucky Avenue, Palm Desert CA 92211 rn Ids BEST BEST & KRIEGER a ATTO*NE*3 AT LAW Memorandum To: Honorable Mayor and Members of Patin Desert City Council From: Robert W. Hargreaves, City Attorney Date: April 30, 2018 Re: Palm Desert Country Club Documents Pursuant to Council direction, I reviewed the following documents that pertain to the current Palm Desert Country Club project, case number 16-280. I also received the attached letter dated April 19, 2018, from the attorney for PDCC that presents PDCC's position on the documents. l _ Development Agreement. Entered into in 2004: The Development Agreement expired by its own terms in 2011. 2. Operation and Maintenance Agreement. Entered into in 2005: This Agreement does not have a termination date, was not discharged in bankruptcy, and remains . �;.b1e. Recital "C" provides that the Owner will maintain the Property pursuant to the Agreement's standards "for so long as Owner operates a golf course on the Property." "Property" is defined to include all 29 -boles of the golf course. The City could take two positions: (1) that as long as any portion of the Property is r r.t :..1 as a golf course, all of the Property must be maintained to the Agreement's standards; or (2) any portion of the Property that is no longer operated as a golf course is not required to be maintained to the Agreement's standards. The Owner takes the second position_ The City could justifiably take either position. If the City decides to agree with the Owner's position, the Agreement should likely be amended to reflect that agreement. 3. CC&Rs_ Recorded in 1963 against Tract 2283 as document number 24645, and subsequently amended: The only portion of the Project covered by the CC&Rs is the westerly portion, nearest to the clubhouse. There is an anomaly in the drafting of the document so that it is not clear whether or not the CC&Rs expired in 1992. This issue was disputed at length by the Owner and the HOA. They eventually entered into a settlement agreement in which they acknowledged the dispute and agreed that: (I) the HOA would not oppose the current project; and (2) the Owner would record a new "Declaration of Restrictions" committing it to continue to maintain the portion of the 18-hole golf course within Tract 2283. The remainder of the 18- hole course, in Tract 2137, is covered by a different set of CC&Rs that has not expired. I recommend that the City recognize the HOA/Owner settlement and not concern itself with the enforcement of the original CC&Rs for Tract 2283. enclosure 72500.00858131037536.1 4130118 5-7-2013 To: Rachelle Klassen, City Clerk From: Barbara Powers, Open Space Action Committee Subject : Heather Clarke At the last council meeting, Mark Catroppa, Vice President of MONARK GROUP IN B.C. , claiming to live at 77440 New Mexico read A letter from Heather Clarke, stating she was for this project. She was called in Canada And stated she was not intimated but that she knew nothing about him reading a letter. I would like to remind the Council that Heather Clarke 77470 New Mexico Dd, signed our Petition on November 13, 2013. See attached petition , "No building on the Executive Course" _ Barbara Powers �• Secretary, OPEN SPACE ACTION COMMITTEE PALM DESERT COUNTRY CLUB RESIDENTS WITH PROPERTY ABUTTING THE GOLF COURSE ASSESSMENT ISSUE: The owners of the golf course would still like to pursue an Assessment through a Landscape & Lighting District( LLD) for all of us abutting the golf course. We have been to the Palm Desert City Council two times now asking that they remove the beginning process for the LLD. On 10-10-2013 the council denied the current application but wanted to know how soon the owners could bring this issue back to the City Council. The Executive course has been permanently closed until the owners decide what to do with it, if anything. We don't know if they will attempt to try and build condo's on the property , as some previous owners have done. If you are against any Assessment going on your tax bill / and or against condo's or anything else non -golf course related built on The Executive Course Please sign the petition below. TO: PALM DESERT CITY COUNCIL & CITY MANAGER'S OFFICE PALM DESERT CITY PLANNING DEPARTMENT PALM DESERT ARCHITECTURAL DEPARTMENT I am the legal owner of the property located at '77/ 70 - .ry w' /k/k_)< . , ! r• Palm Desert. We are located on the Palm Desert Country Club Golf Course. We are against any Assessment through a Landscape and Lighting District formed to benefit a private business ( PALM DESERT COUNTRY CLUB) dba ( PD GOLF OPERATIONS LLC )and placed on our Riverside County Tax Bill. We do not want Condominiums or any housing built on the Executive Course. The Executive Course and the Championship Course were to remain as Open Space, as promised by the City Council of Palm Desert when H .R. Horton was granted a permit to build their new homes. x `C C L/ L_ k J7 f (`lczr / x Date signed y7l i 5a//, Email /l - /, {'c ir? or Phone Number May 7,2018 To: Rachell Klassen, City Clerk From: Matthew T. Ward, Esq.* WARD LAW GROUP, PC. 44-651 Village Court, Suite 121 Palm Desert, Ca 92260 Please add my enclosed letter to the following: RECEIVED CITY CLERK'S OFFICE PALM DESERT, rA 2018 MAY 77 PM 1:59 City Council Meeting May 10, 2018 Agenda item #17 Operation and Maintenance Agreement CONTINUED BUSINESS Case Nos. PP/CUP/EA/CZ 16-280, Christopher McFadden/McFadden Architects, Applicant) (Continued from the meetings of March 22 and April 26, 2018. Please add to Public Record as a Supplemental Information agenda item Thank you in advance for your assistance. Matthew T. Ward, Esq.* na 0 --e zrrn • omn m .4( -0 • 'O rn 710C .. MATTHEW T. WARD, ESQ. ADMITTED IN CA AND TEXAS WARD LAW GROUP A PROFESSIONAL CORPORATION 44-651 VILLAGE COURT SUITE 121 PALM DESERT, CA 92260 PHONE: 760.834.8210 FAX: 760.860.6600 E-MAIL: mward@mwardlawcorp.com May 7, 2018 Palm Desert City Council Sabby Jonathan, Mayor 73510 Fred Waring Drive Palm Desert Ca 92260 Robert W. Hargreaves, City Attorney City of Palm Desert c/o Best Best & Krieger 74760 Highway 111, Suite 200 Indian Wells Ca 92210 CITY RECEIVEDIOFICE PALM DESERT, ^,d 2018 MAY 77 PH 1:59 Re: Palm Desert Country Club- Case No 16-280. Council's Consideration of rezoning of three narcels from oven space to mixed use residential for construction of 69 condominium units on approximately 30 acres located on the former executive gold course at Palm Desert Country Club To the Honorable Mayor and Members of the Palm Desert City Council and City Attorney Hargreaves: My office represents the Open Space Action Committee, which is comprised of a group of concerned citizens who reside at the Palm Desert Country Club and are directly affected by the proposed project. I have reviewed the April 19, 2018 letter from counsel for PD Holdings, LP, the owner of the Palm Desert Country Club as it relates to the Operation and Maintenance Agreement ("OMA") between the City of Palm Desert and PD Holding's predecessor Dahoon Investment Company, Inc. as recorded on September 21, 2005 in the Official Records of Riverside County as Document Number 2005-0780948. I have likewise reviewed the Memorandum from Palm Desert City Attorney Hargreaves dated April 30, 2018 re "Palm Desert Country Club Documents" as it relates to Council's "direction" that he review the Development Agreement, Operation and Maintenance Agreement, CC&R's and the April 19 2018 letter from PDCC's legal counsel. Page 1 of 6 WARD LAW GROUP A PROFESSIONAL CORPORATION I have likewise conducted a review and analysis of the Operation and Maintenance Agreement. I agree with your City Attorney's conclusion that 1) the OMA does not have a termination date; 2) the OMA remains enforceable, and 3) that it does not appear that the OMA was discharged in bankruptcy. I disagree with Mr. Hargreave's assertion that the City can "justifiably" take the position that if any portion of the Property is no longer operated as a golf course, that such portion is not required to be maintained to the Agreement's standards. I likewise disagree with many of the assertions made by Applicant's attorney Robert Patterson in his April 19, 2018 letter. I have reviewed a memorandum from Principal Planner Eric Ceja to Council, in which he confirms the uncertainty created by the City Attorney's April 30, 2018 memorandum, and recommends that "City Council direct staff to work with the Applicant to amend the OMA to clarify that it applies only to the Championship course and only so long as it is operated as a golf course." For the following reasons, my client asserts that the City cannot justifiably take a position that is contrary to the express and unambiguous language of the OMA which clearly reveals the intent that the maintenance obligations apply to the entire "Property" as defined in the OMA. 1. The Maintenance Agreement Applies to the Entire "Property". and is Not Limited to Areas Used for Golf Provided that Golf is Conducted on the Property. Recital Section "A" defines the "Property" as the real property located at 77-200 California Road in the City of Palm Desert known as the Palm Desert Golf Course, legally described in Exhibit A-1 and depicted in Exhibit A-2 attached to the agreement and incorporated into the agreement by reference. Recital Section "A" specifically states that the "Property" is "improved with certain improvements, including, but not limited to, an eighteen (18) hole golf course and a nine (9) hole executive course (collectively "Golf Course"), an approximately ten thousand (10,000) square foot clubhouse ("Clubhouse"), a storage area and maintenance yard ("Maintenance Yard") and Parking Lot ("Parking Lot"). Recital C states: "For so long as Owner operates a golf course on the Property, Owner agrees to operate and maintain the Property according to the standards set forth in this Agreement, as required under the Development Agreement." Section 3.1 of the OMA states that "Owner shall maintain the "Property and related improvements, including without limitation the Clubhouse, the Parking Lot, the Maintenance Facility and associated landscaping in accordance with this Agreement, including without Page 2 of 6 WARD LAW GROUP A PROFESSIONAL CORPORATION limitation, the Maintenance Standards for the Palm Desert Country Club attached to this Agreement as Exhibit B incorporated by this reference (the "Maintenance Standards")". Section 3.8 of the OMA states that the covenants contained therein run with the land, bind Owner's successors and assigns (which includes the Applicant), and "shall remain in effect for so long as the Prouerty is used as a golf course facility". Applicant's counsel not surprisingly asserts that it is his "unequivocal opinion" that there are no covenants or restrictions that restrict or prohibit the entitlement and construction of the Project, and that City Council must consider the recommendation of Planning Commission to approve without any reference to this potential issue. First, this is not a "potential" issue, it is a ripe and present issue. Second, the position of Applicant's counsel appears to be unsupportable given the clear language of Recital C and Sections 3.1/3.8 of the OMA. The issue is not whether the owner must operate a golf course or golf courses on the entirety of the project as Applicant's counsel asserts. The issue is if the owner operates any golf facility on the Property then it must comply with the maintenance obligations for the entire Property. As Council is aware, it is the former 9- hole golf course area that the Applicant seeks a zone change and approval to develop. This area is clearly within the defined "Property" and clearly subject to all maintenance obligations as set forth in the OMA. Applicant's counsel does not dispute the application of the OMA, and in fact admits in his April 19, 2018 letter that PD Holdings will continue to maintain the eighteen -hole course in full compliance with the City Covenant. (letter page 2). It is unclear to me how the Applicant believes that it can pick and choose those provisions of the OMA that it wants to comply with, while asking City Council to simply disregard and ignore those provisions that it does not want to comply with, and in this case, those provisions that interfere with its approval for the zone change and development. 2. The OMA Was Clearly Intended to Auuly to Maintenance of the Entire Pronerty Including any Golf Course, and that Intent Should Not Be Disregarded. Again, Applicant's counsel takes the position in his letter that the intent of the OMA was not to prevent development for another use, such as single family residential. First, for clarification, Applicant is seeking approval for change of zone to multi -family residential. Second, the language of the OMA speaks directly to the intent of the parties by mandating City enforcement if the owner allows any materially adverse condition on any area of the Property, including any significant deterioration of the golf course. Page 3 of 6 WARD LAW GROUP A PROFESSIONAL CORPORATION Section 3.2 of the OMA states: "If at any time there is an occurrence where, in the commercially reasonable opinion of the City, a material adverse condition on any area of the Property exists in contravention of the Management Plan and/or this Agreement (a "Maintenance Deficiency") the City shall notify the Owner in writing of such Maintenance Deficiency." Section 4.3 of the OMA is entitled "Relief to Preclude Immediate Significant Deterioration of the Golf Course", and states in relevant part: "If the City identifies a Maintenance Deficiency which the City believes in its commercially reasonable opinion will result in the immediate significant deterioration of the Golf Course if not cured within a commercially reasonable time ("Urgent Maintenance Deficiency"), the City shall provide immediate written notice to Owner." The OMA applies to the Property and further applies so long as any golf operations are being conducted on the Property. The analysis is not whether the OMA restricts the owner/applicant from ceasing to use a portion of the Property as a 9-hole course. However, any such decision by the owner does not excuse or diminish the maintenance obligations as to the "Property" and to maintain said Property in accordance with the OMA maintenance standards, for as long as any portion of the Property is used as a golf course. With all due respect to the City Attorney, his statement that any other interpretation could be given to this language, is not a reasonable or justifiable interpretation, especially when section 3.8 is read in connection with sections 3.2 and 4.3. 3. The OMA Was A Stated Condition of Approval of the Development Agreement. Which Was Recorded on the Same Date as the OMA. The OMA arose as a specific condition of approval of the Palm Desert Country Club Development Agreement between the City of Palm Desert, PDCC Development LLC and Dahoon Investment Company, Inc which was recorded on the same date as the OMA. The parties to the Development Agreement received substantial benefit under the Development Agreement. To now suggest, that any provisions of the OMA (a stated condition of approval) can retroactively be cancelled, waived or rescinded, is contrary to the terms, conditions and spirit of the Development Agreement, which provided in part as follows; Page 4 of 6 WARD LAW GROUP A PROFESSIONAL CORPORATION "Whereas, the terms and conditions of this Agreement, have undergone extensive review by the City and the City Council and have been found to be fair just and reasonable" 4. The Citv Has Failed for Many Years to Require the Owner/Annlicant to Comply with the Maintenance Obligations under the OMA, and Must Not Reward Such Breach with an Amendment to the OMA. The photographs of the burned out, blighted, dilapidated area which was once occupied by the 9-hole course (and which are part of the record in this matter) clearly show that there has been little if any effort by the City of Palm Desert to enforce the maintenance obligations as to the owner/applicant under the OMA. It appears that the owner/applicant has ignored its obligations under the OMA, and made all those homeowners who have homes on and around the former 9-hole course, to endure years of blighted conditions. These maintenance obligations include the obligations under Section 2.3 that the Owner budget and expend a minimum of 1.1 million dollars annually for maintenance of the Golf Course and its facilities, and under section 2.3.2 to submit annual reports detailing money spent on the maintenance of the Golf Course. Now this same owner/applicant wants the City to reward its actions with a zone change, and approval for development of the project on the Property. The suggestion that these matters can be resolved with a simple amendment to the OMA, if so directed, would constitute the City's granting of a waiver of the owner/applicant's obligations and smacks of self -interested dealing, given the unperformed obligations of the City under the OMA. Applicant and its counsel may not like the terms of the OMA, however the language of the Agreement is not ambiguous. The OMA and the obligations therein are a covenant running with the Property. Respectfully, the comments from Mr. Ceja that the previous owners went bankrupt, that there are significant changes in the golf industry and that the sustained viability of the golf course has not been demonstrated, may all be true, but likewise irrelevant to the analysis. As Mr. Ceja states in his memo to Council, "requiring private businesses to operate at a loss is outside the scope of the City's authority". Likewise, disregarding, waiving or amending out obligations contained in the recorded OMA that run with the Property and bind this Applicant, in order to suit the owner/applicant and/or City, is likewise beyond the scope of the City's authority. Page 5 of 6 WARD LAW GROUP A PROFESSIONAL CORPORATION It is respectfully requested that this communication be presented to the Palm Desert City Council and made a part of the record so that Council can make an adequately informed decision. cc: Open Space Action Committee WARD LAW GROUP, PC. Matthew T. Ward Page 6 of 6 RECEIVED C!T Y CLERK'S OFFICE PALM DESERT, CA 201E MY 03 AM IO: 31 May8,2018 To: Sabby Jonathan, Mayor Susan Marie Weber, Mayor Pro-Tem Jan Harnik, Council Member Kathleen Kelly, Council Member Gina Nestande, Council Member Rachelle Klassen, City Clerk Subject: Palm Desert Country Club Change Of Zone Request From: Marilyn Forney 76831 Kentucky Ave. Palm Desert, Ca. 92211 May 8,2018 Sabby Jonathan, Mayor Susan Marie Weber, Mayor Pro-Tem Jan Harnik, Council Member Kathleen Kelly, Council Member Gina Nestande, Council Member RacheIle Klassen, City Clerk The primary purpose of zoning is to segregate uses that are thought to be incompatible. In practice, zoning also is used to prevent new development from interfering with existing uses and/or to preserve the "character of a community". The city's primary concern should be with protecting the interests of the residents who are directly impacted. In either case fairness is of prune importance, these facts are significant enough by themselves for the city to deny PDCC ownership a zone change on the Executive Course. In all these cases and more, those who proffer the government policy seem to think that all they need do is identify a consequence as the "greater good" and the discussion is over. The end justifies the means. That may indicate one of two things. The proponent of the measure may think that the objective of the policy is more important than whatever those who are forced to pay for it must forgo as a result. Or the proponent may be oblivious of the costs entirely, as though there were none. The proponents of such measures never tell us why the benefits they aim for are more important than the benefits other people will have to do without. But of course they couldn't tell us: The benefits are incommensurable. Incommensurable: not able to be judged by the same standard as something; having no common standard of measurement.' Finally, appeals to the greater good are confronted by the problem of an unequal sharing of burdens. Maintaining a greater good often requires that particular individuals or particular groups bear costs that are much greater than those borne by others. Forcing particular groups or individuals to carry such unequal burdens "for the sake of the greater good", is, at least arguably, unjust. Greater good can only lead to adopting or promoting the views of some, while excluding others, violating the principle of treating people equally. Moreover, such efforts would force everyone to support some specific notion of the common good, violating the freedom of those who do not share in that goal, and inevitably leading to paternalism (imposing one group's preference on others). People are not objects to be manipulated; it is a violation of human dignity to use people in ways they do not freely choose. I sincerely hope that the City Council will make an adequately informed decision based on the evidence (Operation and Maintenance Agreement) documents(copies of past recorded minutes) public remarks, written communications , offered compromises (etc.) provided during the PDCC Proposed Development Process. Negative Mitigation is a more development -friendly alternative to strict environmental laws because it allows development to occur where environmental laws might prohibit it. Thank you for your time and consideration, Marilyn Forney 76831 Kentucky Ave. Palm Desert, Ca. 92211 May 10, 2018 Sabby Jonathan, Mayor Susan Marie Weber, Mayor Pro-Tem Jan Harnik, Council Member Kathleen Kelly, Council Member Gina Nestande, Council Member Subject: PDCC Executive Course RECEIVED FtCE �l� Y C�� �K � CAME ,�LH DESE_.' 11111i N i�� , 8 r!h. 10: 31 PD Holdings, LLC closed the Executive Course in 2013 without warning. Mr. Wilf WeinKauf, G.M., stated the course was closed due to operating costs of S300,000.00 and revenue $80,000.00. Mr.Weinkauf further stated he had offered the property to the City of Palm Desert and to the 1' Tee, both having refused. During my research of the project I have been unable to find any credible evidence that a bona -fide offer of transfer of title to the property was ever offered to either party (emails attached dated February 6, 7 and 8 2016 between Jack Forney and Council Member Sabby Jonathan. Does PD Holdings, LLC have a credibility problem? It is my understanding that zoning is designed to protect communities, neighbors and occupants from annoying, unsafe and pollution causing activities. I have opposed this project since inception due to traffic, noise, pollution and loss of view. However in complying with the instructions of a City of Palm Desert employee that we compromise and our generation except change. I have offered community friendly suggestions "that have mostly been ignored" in the event that the project was erroneously approved. This proposed development claims 50% open space, some with Arizona Style desert landscaping. If the attempt of this type desert landscaping on the Championship Course is an example of what we can expect from this development our future is not bright. I have previously provided written and oral presentations to the ARC and Planning Commission of my objections to the zone change and development plan as well as compromise suggestions to some of my objections (IE. road locations, rooftop alc units and multiple fences behind my neighbors and my home. "copies of my letters 12/12/17 and 3/10/18 attached. With the assistance of Councilwoman Kelly, I met with the architect at my home on 4/30118 to address some of my concerns and review a flag display for suggested changes regarding road location, roof top alc and multiple fences. Mr. McFadden explained his reasons for the road location, rooftop a/c and multiple retaining walls. By understanding the final 6 inch to 8 inch above ground elevation of the finished retaining walls, satisfied my concerns. The suggestion to change the road location and the a/c units was feasible but would not occur without City Council Mandate. A/C units and enclosing fence he stated were screened by the roof line and planned projection of the buildings. I therefore request the City Council mandate the locations of all roads in the proposed development that are less that 30 feet from existing property lines and all a/c units be relocated to the ground to preserve view. Due to the 5 year suffering of residents caused by closing of the Executive Course and the many alternative uses of the property that have be voiced or submitted in writing by community residents and ignored or met with the statement "THE GOLF COURSE IS CLOSED". I therefore believe this project should be rejected for failure to comply with City planning standards and the new General Plan. As a goodwill gesture for the suffering, residents of area have experienced, that PD Ploldings, LLC be required to restore green grass to the property as required by the existing Operation and Maintenance Agreement and good landscape practices. Thank you for your time and consideration. Jack Forney Marilyni Page I of 2 From: "Marilyn Forney" <Feathr7@dc.rr.com> To: <sjonathan@cityofpalmdesert.org> Sent: Monday, February 08, 2016 11:26 AM Subject: Re: From Jack Forney Thank you for the information, and appreciate all that you have done. Jac — Original Message --- From: sionathanOcitvofpalmdesert._org To: Feaihr7edc.mcom Sent: Monday, February 08, 2016 7:46 AM Subject: RE: From Jack Forney Hi Jack, I checked with staff, and they confirmed that the City has never received an offer to transfer ownership of the executive course to the City. Nor has a Change of Zone application been submitted. We did see some plans, just drawings on paper, as you have. But an application for a Change of Zone, or any other type of formal application, has never been submitted. Hope that helps, Sabby Jonathan, CPA Council Member - City of Palm Desert From: Marilyn Forney [Feathr7@dc.rr.coml Sent: Sunday, February 07, 2016 7 18 AM To' Jonathan, Sabby Subject: Re; From Jack Forney Thank you and I appreciate your help very much. Jack Original Message ---- From: sionathanr.ii?citvot'aalmdesert.orgyrna.ilto:soonathan(vcitvofpaimdesert,org> To: Feathr7(r�r.dc rr.corn<nrailto:Feathr7lrodc.rr.com> Sent: Sunday, February 07, 20I6 7:06 AM Subject: RE: From Jack Forney Thank -you, Jack. I have not heard from Will. But 1'1I ask staff about the offer of the course and about the zone change. Once 1 have answers, 1'l1 get back to you. Thanks again, Sabby Jonathan, CPA Council Member - City of Palm Desert From: Marilyn Forney [Feathr7@dc.rr.com] Sent: Saturday, February 06, 2016 12:38 PM To: Jonathan, Sabby Subject: From Jack Forney To: Sabby From Jack L. Forney 1 spoke -to you following the Open Space Action Committee meeting on November 21, 2015 at the Palm Desert Country Club Association Club house to determine why the City of Palm Desert had turned down the offer from tWilf Weinkauf to give the City the Executive Course. You replied that such offer had never been made. 0 ✓ -v -4 VC [77r ▪ =ern • rn rrn r c 2/9/2016 Page 2 of 2 Today, Saturday February 6, 2016 is the first time I saw Wilf since die meeting, and asked to whom in the City he had offered the Executive Course. He gave me a bunch of names Alyaian, Stendell, Baggato including the Planning Commission and the City Council, but he couldn't remember who exactly. You gave me your business card and asked me to have Wilf call you and you would take care of the offer. 1 didn't have your business card with me, but Wilf said he would call you. Wilf then stated he had applied fora zone change and if he was unable to build on the Executive Course he would close the Championship Course. Thanking you for your cooperation. Jack Forney 760-345-8598 No virus found in this message. Checked by AVG - ww w ,iv-g. l:u,un http ti� 11 COM> Version: 2016.0.7357 / Virus Database: 4522/11572 - Release Date: 02/07/16 No virus found in this message. Checked by AVG - www.ay.cuni Version: 2016.0_7357 / Virus Database: 4522/11578 - Release Date: 02/08/16 2/9/2016 Mariiyni Page 1 of 2 From: "Marilyn Forney" <Feathe7@dc.rr.rom> To: "Feather" <Feathr7@dc.rr.com> Sent: Monday, February 08, 2016 12:31 AM Subject: Fw: From Jack Forney --- Original Message -- From: sionathan(6.citvob almdesert.orq To: Feathr7{�dc.rr.com Sent: Sunday, February 07, 2016 7:57 AM Subject: RE: From Jack Forney You're very welcome, Jack. Enjoy the rest of your weekend. Sabby Jonathan, CPA Council Member - City of Palm Desert From: Marilyn Forney [Feathr7@dc.rr.com] Sent: Sunday, February 07, 2016 7:18 AM To; Jonathan, Sabby Subject. Re: From Jack Forney Thank you and 1 appreciate your help very much, Jack ---- Original Message --- From: siunathanr"ti)citvofnaImdesert.or1. mailto'.sionathan@cityofvalandaBert.oj > To: F e.athr7;dc.rr.com-mailto:Feathr7 cr dc.rr.cgm> Sent: Sunday, February 07, 2016 7:06 AM Subject: RE: From Jack Forney Thank -you, Jack. 1 have not heard from Wilf. But III ask staff about the offer of the course and about the zone change. Once I have answers, I'll get back to you. Thanks again, Sabby Jonathan, CPA Council Member - City of Palm Desert From; Marilyn Forney [Feathr7@dc.rr.com] Sent: Saturday, February 06, 2016 12:38 PM To: Jonathan, Sabby Subject: From Jack Forney To Sabby From Jack L. Forney 1 spoke to you following the Open Space Action Committee meeting on November 21, 2015 at the Palm Desert Country Club Association Club house to determine why the City of Palm Desert had turned down the offer from Wilf Weinkauf to give the City the Executive Course. You replied that such offer had never been made. Today, Saturday February 6, 2016 is the first time 1 saw Wilf since the meeting, and asked to whom in the City he had offered the Executive Course. He gave me a bunch of names Alyaian, Stendell, Baggato including the Planning Commission and the City Council, but he couldn't remember who exactly. You gave me your business card and asked me to have Wilf call you and you would take care of the offer. I didn't have your business card with me, but Wilf said he would call you. Wilf then stated he had applied fora zone change and if he was unable to build on the Executive Course he would close the Championship Course. 2/9/2016 Mari;ynl Page 1 of 1 From: "Marilyn Forney" <Feathr7ccd' dc.rr.com> To: <sjonathan c[Dcityofpalmdesert.org> Sent: Sunday, February 07, 2016 7:18 AM Subject: Re: From Jack Forney Thank you and l appreciate your help very muck Jack — Original Message -- From: slonathanccityofpalmdesert.ora To: Feathr7@dc rr.com Sent: Sunday, February 07, 2016 7:06 AM Subject: RE: From Jack Forney Thank -you, Jack, I have not heard from Wilf. But I'll ask staff about the offer of the course and about the zone change. Once I have answers, 1'11 get back to you. Thanks again, Sabby Jonathan, CPA Council Member - City of Palm Desert From: Marilyn Forney [Feathr7@dc.rr.com] Sent: Saturday, February 06, 2016 12:38 PM To: Jonathan, Sabby Subject: From Jack Forney To: Sabby From Jack L. Forney I spoke to you following the Open Space Action Committee meeting on November 21, 2015 at the Palm Desert Country Club Association Club house to determine why the City of Palm Desert had turned down the offer from Will Weinkauf to give the City the Executive Course. You replied that such offer had never been made. Today, Saturday February 6, 2016 is the first time I saw Wilf since the meeting, and asked to whom in the City he had offered the Executive Course. He gave me a bunch of names Alyaian, Stendell, Baggato including the Planning Commission and the City Council, but he couldn't remember who exactly. You gave me your business card and asked me to have Wilf call you and you would take care of the offer. I didn't have your business card with me, but Wilf said he would call you. Wilfthen stated he had applied fora zone change and if he was unable to build on the Executive Course he would close the Championship Course. Thanking you for your cooperation. Jack Forney 760-345-8598 No virus found in this message. Checked by AVG - www.avg.cow Version: 2016.0.73571 Virus Database: 4522/11572 - Release Date. 02/07/16 2/9/2016 Page 2 of 2 Thanking you for your cooperation. Jack Forney 760-345-8598 No virus found in this message. Checked by AVG - w•ww.avk.cony httvcorn> Version: 2016,0.7357 / Virus Database: 4522/11572 - Release Date: 02/07/16 No virus found in this message. Checked by AVG - .. .ti.avg.com Version, 2016.0.7357 / Virus Database: 4522/11578 - Release Date: 02/08/16 No virus found in this message. Checked by AVG - www,avu.com Version: 2016.0.7357/ Virus Database: 4522/11578 - Release Date 02/08/16 2/9/2016 Marityni Page lof1 From: "Marilyn Forney" <Feathr7@dc.rr.com> To: "Sabby Johathan.' <sjonathan@cityofpaimdesert.org> Sent: Saturday, February 06, 2016 12:38 PM Subject: From Jack Forney To: Sabby From Jack L Forney 1spoke to you following the Open Space Action Committee meeting on November 21, 2015 at the Palm Desert Country Club Association Club house to determine why the City of Palm Desert had turned down the offerfronr WifWeinkuuf to give the City the Executive Course. You replied that such offer had never been made. Today, Saturday February 6, 2016 is the first time l saw Wilf since the meeting, and asked to whom in the City he had offered the Executive Course. He gave me a hunch of names Alyaian, Stendell, Buggato including the Planning Commission and the City Council, but he couldn't remember who exactly. You gave me your business card and asked me to have Wilf call you and you would take care of the offer. 1 didn't have your business card with me, hut Wilf said he would call you. Wilf then stated he had applied for a zone change and if he was unable to build on the Executive Course he would close the Championship Course. Thanking you for your cooperation. Jack Forney 760-345-8598 2/9/2016 GOOD AFTERNOON MR. CHAIRMAN, MEMBERS AND STAFF. MY NAME IS JACK FORNEY, I RESIDE AT 76831 KENTUCKY AVE., PALM DESERT . I HAVE BEEN A FULL TIME OWNERIRESIDENT OF PDCC SINCE 1987 AND A MEMBER OF THE GOLF COURSE THAT SAME TIME. INITIALLY I WOULD LIKE TO TAKE EXCEPTION TO 2 ITEMS o 0 IN THE STAFF REPORT FOR TODAY'S AGENDA. 1.w " 1. THERE ARE EXACTLY 188 SINGLE FAMILY HOMES air° ABUTTING THE PROPOSED PROJECT NOT HUNDREDS! °o cr'n;°rn 2. THE PROPOSED CURVILLINEAR ROADWAY IS 16 FEET o `tea FROM MY REAR PROPERTY LINE 'NOT AT MUCH AS 30FT, w SECTION B LOT 199. al I AM NOT AN ARCHITECT, ENGINEER OR CONTRACTOR, 5O I CAN'T COMMENT ON THE STRUCTURAL INTEGRITY ONLY THE APPEARANCE AND LOCATION OF THIS PROJECT, BUT AS AN OWNER I CAN UNEQUIVOCALLY STATE THAT THIS PROJECT OF ATTACHED UNITS IS IN THE WRONG PLACE. THIS PROJECT HAS BEEN FLAWED SINCE IT'S INCEPTION, COMMON WALLED UNITS, SOME WITH 16FT TO 18FT ROOF PROJECTIONS, IN ADDITION TO ARIZONA STYLE DESERT EFFECT LANDSCAPE WITH 15FT TO 20FT TREES OF THE MESSY, ACACIA FAMILY, THAT WILL GROW TO 30FT-40FT ARE NOT COMPATIBLE WITH THE AREA SURROUNDING THE PROJECT AND WILL OBSCURE THE VIEW OF THE EXISTING PROPERTIES. A CHANGE OF ZONE TO ALLOW DEVELOPMENT OF CONDOMINIUMS DOWN THE MIDDLE OF THESE FORMER FAIRWAYS WILL DO IRREPUTALE HARM TO THE OWNERS OF HOMES BORDERING THESE FORMER FAIRWAYS, WHO HAVE ALREADY SUFFERRED ENOUGH DUE TO LOSS OF PROPERTY VALUE AND TO THE BLIGHT CAUSED WITH THE CLOSING OF THE EXECUTIVE COURSE. THE APPLICANT HAS SHOWN TOTAL DISGREGARD FOR THE SURROUNDING PROPERTY AND THEIR OWNERS. CURRENTLY THIS IS A COMMUNITY OF SINGLE FAMILY HOMES PRIMARILY OCCUPIED BY RETIRED SENIOR CITIZEN OWNERS, SOME HAVING INVESTED THEIR LIFE SAVINGS, WHO PURCHASED THEIR HOMES FOR THE MAJESTIC MOUNTAIN VIEW AND OPEN AREA OF THE GOLF COURSE FOR THEIR GOLDEN YEARS, THEY TAKE PRIDE IN THE COMMUNITY, MAINTAIN THEIR PROPERTY, RESPECT THEIR NEIGHBORS AND ARE AN ASSET TO THE CITY OF PALM DESERT. THIS PROJECT SHOULD BE RETURNED TO THE APPLICANT TO CORRECT THE OBVIOUS FLAWS THAT DO NOT CONFORM TO THE THE PRECISE APPLICATION PLAN DEVELOPMENT STANDARDS UNDER ARTICLE 5 OF THE PLAN: A. ACCESS AND CIRCULATION STANDARDS B. SITE PLANNING SHALL OCCUR THAT MINIMIZES OBSTRUCTION OF SCENIC VIEWS OF ADJACENT PROPERTIES. C. SITE PLANNING SHALL BE COMPATIBLE WITH EXISTING TERRAIN. D. SITE PLANNING SHALL OCCUR IN A MANNER THAT DOES NOT EXPOSE UNATTRACTIVE AREAS OR ACTIVITIES TO THE DETRIMENT OF ADJACENT PROPERTIES. E. TREE SELECTION SHOULD BE CAREFULLY CONSIDERED AS TO FAMILY TYPE, MAXIMUM HEIGHT AND SPREAD OF CANOPY. I HAVE REVIEWED THE MINUTES OF THE ARC, MARCH 14, 2017 MEETING AND THE SUMMARY OF MINIMAL CHANGES MADE AND I SUBMIT THE FOLLOWING TO BE INCLUDED IN THE NEXT REVISION. A. NO STRUCTURE, PORTION THERE OF OR RECREATION FACILITY SHALL BE CLOSER THAN 80 FEET FROM THE CLOSEST ADJACENT PROPERTY LINE. B. NO STRUCTURE OR APPURTANCES THERE ON SHALL EXCEED 10 FEET ABOVE THE ELEVATION OF THE NEAREST ADJACENT PROPERTY LINE AND A DISTANCE OF 100 FEET IN EACH DIRECTION ALONG SAID PROPERTY LINES. RELOCATING AIR CONDITIONING UNITS TO THE GROUND WOULD HELP. C. ALL ROADWAYS SHALL BE A MINIMUM OF 60 FEET FROM EXISTING PROPERTY LINES. CURRENTLY A PROPOSED ROADWAY IS 16 FEET FROM MY REAR PROPERTY LINE (SEE EXCEPTION BELOW) . D. ALL ROADWAYS SHALL BE A MINIMUM OF 3 FEET BELOW THE ELEVATION OF ADJACENT PROPERTY LINES. THIS WOULD ELIMINATE THE NEED FOR 30 INCH SEGMENTED WALLS (SEE EXCEPTION BELOW) E. ALL EXTERIOR FENCING SHOULD BE CONSTRUCTED OF MATERIAL SELECTED BY ADJACENT PROPERTY OWNERS FROM 3 CHOICES: STUCCOED BLOCK WALL WITH WROUGHT IRON ON TOP SOLID STUCCOED BLOCK WALL. WROUGHT IRON. FOR CONSISTENCY NO LESS THAT 3 ADJOINING PROPERTIES (180 FEET) SHALL BE OF THE SAME CONSTRUCTION (SF EXCEPTION BELOW) F. NO EXTERIOR FENCING SHALL BE PERMITTED 1 FOOT AWAY FROM EXISTING PERMANENT PROPERTY LINE FENCING. NO DOUBLE FENCE LINE WHERE EXISTING PERMANENT FENCE LINE IS IN PLACE. G. MAXIMUM HEIGHT OF MATURE TREES SHALL BE 30 FEET AND CANOPIED DIAMETER 30 FEET. TREES SHALL BE LOCATED 100 FEET FROM STRUCTURES, OTHER TREES OR PROPERTY LINES. H. ALL LANDSCAPED AREAS SHALL BE A MINIMUM OF 50% GREEN GRASS. THESE RECOMMENDATIONS ARE ALL POSSIBLE ON THESE 200 FOOT WIDE FAIRWAYS AND ARE VERIFIED IN THE LATEST SUMMARY OF CHANGES WITH THIS DEVELOPMENT PALM DESERT COUNTRY CLUB OWNERSHIP HAS SET US ON A PATH "TOWARDS LESS OPEN SPACE, LESS WILDLIFE AND MORE SPRAWL. " FOR ALL OF THE ABOVE REASONS, I STRONGLY OBJECT TO THE APPROVAL OF THIS PROJECT. ABRAHAM LINCOLN ONCE SAID "PUBLIC SUS IMEN'IIS EVERYTHING. WITH PUBLIC SENTIMENT YOU CAN'T FAIL; WITHOUT IT YOU CAN'T SUCCEED. THE ONLY WAY TO MEASURE PUBLIC SENTIMENT IS TO VOTE. THANK YOU FOR YOUR TIME AND CONSIDERATION. NOTE: EXCEPTIONS: HEIGHT OF AND MATERIAL USED ❑N PROPERTIES ADJACENT TO THE ENTRANCE AND EXIT ROADWAY TO THE PROJECT SHALL BE A SIGNED AGREEMENT BETWEEN THE PROPERTYOWNERS ON EACH SIDE OF THE ROADWAY AND THE APPLICANT. December 12, 2017 March 10, 2018 City of Palm Desert Planning Commission: Commissioner Nancy De Luna Commissioner Lindsay Holt Commissioner John Greenwood Vice Chairman Ron Gregory Chairman Joseph Pradetto My name is Jack Forney, 1 own and reside at 76831 Kentucky Ave. (Lot 199 Tract 4871), Palm Desert. My home abuts the 8'h tee box of the closed Executive Course, which was closed for the unsubstantiated claim of 5,200,000.00 annual revenue Toss. Closing the course and deliberate elimination of proper water and maintenance created a condition of visual blight, dust, dirt and a 10% loss of property value to the 188 property owners abutting the course as reported by the Riverside Country Assessors Office " Properties abutting a golf course are typically appraised 10% higher than a similar property not abutting a golf course. PDCC is a community of single family homes primarily owned and occupied by senior citizens who purchased their homes for the mountain views and open space of the golf course for their "Golden Years". We have been told we must compromise and our generation should be willing to accept change. The current proposed road for Tract 37241(Section 8) Oregon Drive is located 16 feet from my rear property line, I have previously offered orally and in writing a compromise solution: Rotate Units R8, 89, B10 and B11, 90 degrees as currently proposed (see attachments). The long side of the structures (96 feet) is perpendicular to the existing property lines, the 90 degrees proposal would make the long side (96 feet) parallel with existing property lines and allow the units and the road to be moved 30 feet south therefore improving safety and reducing road noise and pollution to adjacent properties (proposed sketch attached), Additionally this movement might eliminate one or both of the retaining walls proposed for the north side of the area from lot 203 to lot 191, Tract 4871. The above mentioned retaining walls if left as proposed would create a 4 wall perimeter behind my house!! My permanent fencing on my property line, a chain link fence perimeter wall and 2 retaining walls. This infill project located between two rows of single family homes is unique to the City of Palm Desert and not consistent with the Precise Plan Application Development Standards under Article 5 of the Plan. A. Access and circulation standards: Only nue way in and (tut' 11. Site Planning shall occur that minimizes obstruction of scenic views of adjacent properties: 15% f ll+ 4;1 < ...I.}l ��.�.' . �.•.., lei. tti�:• -uui cli,a-, IliIP •.. tier C. Site Planning shall be compatible with existing terrain. koltiag 11116 versus multiple Retention Ka..ius'. D. Site Planning shall occur in a manner that does not expose unattractive areas or activities to the determent of existing properties. i inch high Retaining Walls. Pirl.te Ball Courts, Pool Areas. Road Location and Walking Paths. etc.? E. Tree selection should be carefully considered as to Family Type, maximum height and spread or canopy. u prrcinicdl, E. Additionally this project does not conform to the Revised City of Palau Desert General Plan. Discourage lid.' --,.._..ti s_teii_� .'.. .. .{,,,,;(!]il Neighborhoods that are clisir.lttcril.cd by cul-de-sacs, sound walls, long block lengths, single building and housing types and lack of access to goods and service. Preserve and enhance the character of misting Residential Neighborhoods. Support the conversion of struggling golf courws into nee complimenturr uses. The City will consider uses such as: Active Recreational Space Natural Habitant Restoration Passi►e Open Space and '€ruits Community Rcaic agriculture Neighborhoods supportive or commercial and her► ice uses High quality neighborhoods Require nevi. developments to comply with requirements of the ('VMSIICP. Limit grading and vegetation removal of new development activities to the minimum extent necessary to reduce erosion and sedimentation. Mr. McFadden has stated in the application for Change of Zone and Development Plan "50 percent of the proposed project will be Open Space"! Mr. McFadden fails to state that approximately 10 percent of that Open Space is covered by an agreement with Palm Desert Villas on Green that prohibits construction on the property (Document No. 2007-0338228 dated 05/23/2007). The additional area of Open Space in Tract 37240 Section A, Tract 37241 Section B and Tract 37242 Section C includes walking paths, recreational facilities, parking spaces, roads, cul-de-sacs and multiple retention basins which are necessitated by grading for level pads, concrete slabs, structures, asphalt roads and vehicle parking spaces. This is not the green grass and open space that surrounding property owners expected when they purchased their golf course abutting homes. 1 sincerely request that the Planning Commission revise their decision to approve a Change of Zone for this project and submit to the City Council their recommendation to deny this project. Abraham Lincoln once said, "Public Sentiment is everything. With Public Sentiment you can not fail. Without it you cannot succeed. The only wuv to measure Public Sentiment is In VOTE'''. Allow the 188 affected property owners abutting the Executive Course to VOTE as was allowed the owners abutting the former PDCC Driving Range that provided the area now occupied by the Horton Homes. Thank you for your time and consideration. Jack L. Forney cc: Eric Ceja, Principal Planner, City of Palm Desert Community Development Attachments: Road Relocation DRAWING 1 & 2 rn ■ • 0 Z • • ■ • W • • W LJ_ • ■ • • • ■ • • • t.o ■ 0\ ■ 00 O'► W W u_ co • . • • • • w • • c z • 0 0 • W re • 0 • • • . • ■ ■ • • • .r.� 0 • O. • N IX 1 • . om ow • •• VLLI N ce • 00 W • • _a • • o0 al • • 0 a .J • • Ct F, Q . • • CO " Z N o • • pz�v0 o ra • • 4W—� • • ty~'wa�--.�-� • ■ • • w w t W ZX 0 gWg❑ W W0) Z re W Z N LWt � LLZO W Z 5 0 J ma�oa N v04 0 0 va0ppy�)- W» W❑ Z W❑ Z V]211:11-QGZ❑ 1 F XLSTING Lars La ++ 40 1'- Q. ae (rk FF: 894.70z i a • 3 3 ■ EX. FF• 894.200 0 0 i L r rEV‘Ili 1 4 a • it • s • , �` 4, s I ; 1 la > , d May 4, 2018 CITY CLERKS O PALM ©ESER OFFICE ?018MAY -9 API 10:20 An Open Letter to the Council Members of the City of Palm Desert Regarding your meeting scheduled for Thursday, May 10, I appeal to you to not approve the zoning change requested by the Palm Desert Country Club owners for their intentionally abandoned 9- hole golf course on which they propose to develop condominiums. By approving this request at this juncture, you would be: 1. Turning your back on the Palm Desert homeowners that will be massively affected by the zoning change and'resultant development on the course 2 Approving an extremely inappropriate project (a multi -walled community consisting of an access road, condominiums, and amenities wedged onto narrow strips of land never envisioned or zoned for that purpose) 3. Favoring a foreign/Canadian Club owner with less than a $500,000 investment over 188 American Palm Desert homeowners with more than a $47,000,000 investment 4. Going against the City's stated commitment to the preservation of open space 5. Going against the City's call for a viable alternative The City of Palm Desert has already: 6. Coddled the Club owners far too long, going on 5 years now 7. Done everything possible to silence the voices of the Palm Desert homeowners that are the most affected by this issue (eg. holding meetings with short notice or in the heat of summer, not sending notices to absentee owners, apparently using mailing lists that do not reflect home ownership changes, allowing the Club owner and representatives unlimited time to state their case, while holding homeowners to just 3 minutes and not allowing them to rebut misstatements made by the Club owners, etc.) What needs to be done by the City now is: 8. Flesh out the alternative offered as per the City's request (a proposed bond issue to be paid off entirely by the surrounding homeowners affected by this issue and not by homeowners city-wide) 9. Put the detailed alternative to a vote of the Palm Desert homeowners who would be affected by this zone change/development, ie. a "yea -nay" vote that should have been done at the very outset of this issue 10. Make amends for a recent statement that the decision on this issue would be made by "what is right for the City and not just for the 188 owners that border on the golf course" (it has not been made clear how other Palm Desert homeowners could be affected) 11. Make amends for a recent statement about "loving our Canadians" by remembering that Palm Desert American homeowners that would be affected by this issue are loved equally as much and should not be ignored is making this decision Thus, Council Members still have the opportunity to counter a gross mis-step being made by the City of Palm Desert. I implore you to exercise your power and vote no on the zone change. Sincerely yours, Frederick P. Kent ;s Klassen, Rachelle From: kEVIN fAHEY <faheykevin@comcast.net> Sent: Thursday, May 10, 2018 11:36 AM To: Weber, Susan Marie Cc: tom walton; Klassen, Rachelle; Barbara Powers Subject: RE: How can you vote to disenfranchise 187 Palm Desert residents who purchased golf course home on PDCC? Susan Marie, I just want to provide some additional insight on this matter which comes from my meeting with Dick Oliphant in March. Dick as you know was the original developer of PDCC and continues to be involved in development projects throughout the valley. Dick confirmed that the original market price and valuation of the lots on the golf course were much higher than non - golf course property and that relationship remains that way for golf communities in today's real estate market. Any conclusion that the homeowners on the former executive course will see an increase in their market valuation from the new development is simply not accurate. As a long time Indian Wells city council member and former Mayor, Dick was also involved in creating a number of landscape districts. He thought the former executive course is a good example of where a landscape district would make sense and could work well for all stakeholders. Thank you for taking the time to listen. Kind Regards, -0 "al caa > < Z Kevin -mac - rn-� -- 0 r*t 0 Rachelle, can you please forward this note to the other council members? Thanks, Kevin o ff„,3rn a'0 rnMcrirr x m - aaC From: tom walton [mailto:twcthfsh@gmail.com] `T Sent: Thursday, May 10, 2018 1:27 PM To: Susan Marie Weber Subject: Fwd: How can you vote to disenfranchise 187 Palm Desert residents who purchased golf course home on PDCC? Susan Marie, Appreciated the opportunity to discuss some important city issue with you today. I know this position is late, but I hate to see you or any other council member put in such a position as having to vote today on such an important zoning change. Below are me comments and input to the city earlier. Here's the background info. below. Also, if you consider the reason we have zoning, as defined below, I fail to see how changing the zoning at the PDCC 9-hole course prevents new development i from interfering with existing uses and/or preserves the "charter" of the 187 existing community homes. My biggest concern is that this council is now put in a very difficult position because there was no forward thinking or steps defined to deal with failed golf courses that were originally used to help the original developer price these home and lots higher (more profit for the original developer). Now that the original owner has profited from both higher lot and home prices as well as selling the non proprietary golf courses, another developer has seen an opportunity to profit at the expenses of 187 Palm Desert owners who's homes back up to the 9-hole PDCC golf course. But in order for this developer to profit, the council will have to disenfranchise 187 Palm Desert residents. Not a position any council member should be put in. The City should have a series of steps required by both proprietors and home owners, well though out and well published before granting any developer a zone change to remove a golf course and put homes or condos and roads in any resident's property that fronts or backs up to a golf course. PDCC will not be the last country club to ask the city to bail them out at resident's expense. Time to develop the required steps by all parties before these residents are disenfranchised. With responsible leadership and accountability, the City could define sensible and fair steps required by both residents and developers before the council approves any zone changes. All of this should be able to be accomplished in the next six months, with the council making the final determination by the end of November 2018. Begin forwarded message: From: rklassen@cityofpalmdesert.org Subject: RE: How can you vote to disenfranchise 187 Palm Desert residents who purchased golf course home on PDCC? Date: April 30, 2018 at 11:17:43 AM PDT To: twalton@me.com Thank you for your e-mail, Mr. Walton, which I will include in the correspondence section of that report for the May 10 agenda. Rachelle Klassen City Clerk Ph: 760.346.0611 Direct: 760.776.6304 rklassen@cityofpalmdesert.org From: Tom Walton [mailto:twalton@me.coml Sent: Monday, April 30, 2018 10:03 AM To: Klassen, Rachelle <rklassen@citvofoalmdesert.org> Subject: How can you vote to disenfranchise 187 Palm Desert residents who purchased golf course home on PDCC? To Rachelle Klassen, As I won't be able to attend the May loth meeting, would you please see that council members get my input. 2 Thank you, Tom Walton 72720 Yucca Ct. Palm Desert, CA 92260 The original developer, built the PDCC courses so he could charge more money for the lots and houses he built facing both the nine hole executive course and the 18-hole championship course. Because the memberships were non-proprietary, the developer kept control and had total ownership of these courses. After he benefitted from these higher real estate prices, he then sold the courses, pocketing that money. New golf proprietors bought these courses over time until the last owner, who was not a golf course proprietor, but a developer from Canada. And, he bought these courses for a song, less than $2M. His intentions were quickly realized when he turned off the water on the 9-hole course and refused to market this executive course. They even refused to lease this 9-hole course at another proprietor's request. Instead this company chose to disenfranchised 187 Palm Desert owners who's properties back up to the 9-hole course, in order to line their pockets at these resident's expense. Now, this company wants the City to support a zoning change so they can put in a high density condominium project. The question is, how can we stand by and allow our residents to be so grossly disenfranchised while an outside developer profits? What is the purpose of zoning? Does the City have any responsibility to protect these 187 resident home values by not allowing obtrusive zoning changes that will clearly devalue these homes? The primary purpose of zoning is to segregate uses that are thought to be incompatible. In practice, zoning also is used to prevent new development from interfering with existing uses and/or to preserve the "character" of a community. Did this developer have other choices? Of course he did. He could have found other properly zoned land in Palm Desert to build his condo project somewhere else. To help sell such a project, they could have offered special membership programs at PDCC to the buyers of those properties. This would have been a responsible win, win strategy. If a developer was concerned about this community, do you believe they would have chosen the path they did and then ask Palm Desert council members to bail them out at the demise of another 187 residents? If you bail them out on the 9-hole course, how long before they will ask you to re -zone the 18-hole championship course thus negatively effecting the value of many more Palm Desert residents. PDCC isn't the first and won't be the last to ask the City to bail them out at the demise of residents. Other clubs have addressed this very issue and found solutions. Don't let smart developers use our council for their profit. The City needs to come up with a logical and fair process for helping resolve the current PDCC issue and other clubs with housing developments surrounding their golf courses. The formula that smart developers win and 187 Palm Desert residents lose is not the answer. This City needs to get ahead of the curve and stop reacting behind the curve. 3 We're asking the council not to approve this zoning request and harm 187 residents. 4