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Home My WebLink AboutSpplmntl Info - DP 12-371 / RECEIYED Q ,', _ - C1TY CLERK'S OFFICE PAIN DE�E� T, C.'� 2d13 JAN 2� PM 4: 51 BIGHORN January 22, 2013 City Council City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Re: Proposed Development Plan for Canyons at BIGHORN; DP-12-371 Honorable Mayor Harnik and Honorable City Councilmembers: I write in my capacity as President of the BIGHORN Homeowners' Association (the "HOA")to express the HOA's support of the proposed Development Plan for the portion of the Canyons at BIGHORN located in the City's PR-Planned Residential Zone, Case Number DP-12-371, and to respectfully request that the City Council adopt the proposed Development Plan at your hearing on January 24, 2013. Thank you in advance for your consideration of this matter. Sincerely, BIGHORN Homeowners Association � Edward A. Burger President B I G H 0 R N HOMEOWNERS ASSOCIATION 941 ANDREAS CANYON DRIVE, PALM DESERT, CALIFORNIA, 9226o U S A a 760 34i-5o99 • Fax 760 773-�i82 Klassen, Rachelle From: Stanley, Jane Sent: Wednesday, January 23, 2013 2:28 PM To: Klassen, Rachelle; Mendoza, Grace � r> Subject: FW: Ltr re Objection by Homeowner Lawrence Pasternack �,;, D—+ Attachments: 1_23_13 City Counsel Ltr.PDF � r-'�� x ��rn N 0 t�s� w rnAm s,'3�c� m .� -< __ _.�_...._.,,._. _ .._..._..____ ._..____,_ ...__., _�,...�._,,._��.w�...w_...._.....,.._..3...__ ::'��_ From: Bush, Nancy [mailto:nbushCa�rutan.com] � - -.s� Sent: Wednesday, January 23, 2013 1:58 PM � ��'" To: CityhallMail N �� Subject: Ltr re Objection by Homeowner Lawrence Pasternack � The attached letter is being provided to the City Council members in connection with matter XVII.B.on the Posted Agenda for the Regular Palm Desert City Council Meeting Scheduled for tomorrow,January 24, 2013 at 4:00 p.m., regarding: CONSIDERATION OF A NEW DEVELOPMENT PLAN, ESTABLISHING UNIFORM DEVELOPMENT STANDARDS FOR THE CANYONS AT BIGHORN IN ACCORDANCE WITH PALM DESERT MUNICIPAL CODE SECTIONS 25.25.190 AND 25.24.330, Case No. DP 12-371 (Bighorn Development, LLC,Applicant). Nancy Bush Legal Secretary Rutan 8�Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa,CA 92626 714-641-5100 x1328 714-546-9035 Fax nbush@rutan.com www.rutan.com Privileged And Confidential Communication. This electronic transmission,and any documents attached hereto,(a)are protected by the Electronic Communications Privacy Act(18 USC§§2510- 2521),(b)may contain confidential and/or legally privileged information,and(c)are for the sole use of the intended recipient named above. If you have received this electronic message in error,please notify the sender and delete the electronic message.Any disclosure,copying,distribution,or use of the contents of the information received in error is strictly prohibited. IRS Circular 230 Notice: Pursuant to the Internal Revenue Service requirements we inform you that, unless specifically indicated otherwise, any tax advice contained in this e-mail, including any attachments, is not intended or written to be used, and cannot be used, by the recipient or any other person for the purpose of(i) avoiding penalties that may be imposed under the Internal Revenue Code or(ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein. 1 , ` �„�T�N Milford W.Dahl,Jr. � DirectDial:(714)64]-3438 RUTAN &TUGKER, �LP E-mail:mdahl@rutan.com January 23, 2013 � c� �• .� ,m,,, -� n� s =�av � �� VIA MESSE1�iGER N a rn n ta ��r*� AND EMAIL �;�-- ; � �Nm City of Palm Desert -{�o : N �T City Council w ;,� . 73-510 Fred Waring Drive N ►�*�� Palm Desert, CA 92260 Re: Objection by Homeowner Lawrence Pasternacic to Resolution No. 2013-01, approving New Development Plan 12-371 Establishing New Development I. Standards For the Canyons At Bighorn Members of Palm Desert City CounciL• This firm represents Lawrence Pasternack who owns the home located at 1018 Cahuilla Falls, Pa1xn Desert, California. This firm also has extensive experience in representing municipalities, large and small, as both general and special counsel. On or around January 10, 2013, Mr. Pasternack received the City of Palm Desert Legal Notice for Case No. 12-371, entitled"Notice of Intent to Adopt New Development Standards for the Canyons at Bighorn in Accordance With Palm Desert Municipal Code Section 25.25.190 and 25.24.330" (the "Notice"). Mr, Pasternack was entitled to receive such notice pursuant to Palm Desert Municipal Code Section 25.94.020 because his home is located in the Canyons at Bighorn (the "Canyons"). The Notice states that Bighorn Development, LLC ("Bighorn") submitted a request for approval of a new Development Plan for the Canyons. The proposed new Development Plan is not in the best interest of the public, is wholly improper and should not be approved for the following reasons: 1. Pursuant to Government Code section 65454, "[n]o specific plan may be adopted or amended unless the proposed plan or amendment is consistent with the general plan." The City of Pa1m Desert general plan (page III-142) states in pertinent part: 611 Anton Bivd, Suite 1400, Costa Mesa, CA 92626 PO Box 1950, Costa Mesa, CA 92628-1950 I 714.641.5100 I Fax 714.546.9035 Orange County i Palo Alto I www.rutan.com 25soiozl9zo-oolt a��izs�.z eoin3na RUTAN RUTAN 6 TUCKER,LLP '' City of Palm Desert Page 2 Structures should be planned as integrated elements within the natural environment. This primacy is achieved by establishing guidelines for building scale and proportion,structure,height, and setbacks that are • enviroiunentally sound and sensitive. Within the context of existing development and appropriate design,new structures should be similar in height to and compatible with other buildings in the vicinity, with the goal of preserving and enhancing design qualities of the built environment while maintaining important viewsheds. Assigned setbacks should be harmonious with the streetscape, surrounding structures and scenic resources. Variations in building massing are encouxaged but should reflect a sense of compatibility as a group. The proposed Development Standards conflict with the general plan because they decrease the setbacic requirements currently in place thereby eliminating space between the homes in the Canyons. This is neither "environmentally sound and sensitive," nor is it "harmonious with the streetscape, surrol.uiding structures and scenic resources." As such, the proposed Development Plan cannot and should not be adopted because it does not further the general plan's objectives. (See Ideal Boat & Camper Storage v. County of Alameda (2012) 208 Cal. App. 4th 301, 312 ["a loca.l agency will not approve a project that is not compatible with, and would frustrate,the general plan's goals and policies."],) 2. The proposed amendment to the Development Standards does not comply with the California Environmental Quality Act ("CEQA"), . Pursuant to CEQA the City is required to conduct a thorough environmental review and prepaxe an environmental impact report to identify the environrnental impacts of adopting the proposed amendment. (Cal. Pub, Res. Code § 21100, et seq.; Pocket Protectors, v. City of Sacramento (2004) 124 Cal. App. 4th 903, 937 [holding that an environmental impact report was necessary under CEQA when there were . objections as to the adequacy of the setbacks in the proposed plan].) No such investigation has been conducted, nor has a report been prepared and thus, the proposed amendment does not comply with CEQA; 3, The current Development Standards applicable to lots in the Final Map and the required minimum sideyard setbacks have been in place for nearly 15 years and 2530/021920-0011 4771257.2 a01/23/13 RUTAN RUTAN 6 TL1C1(ER,LLP City of Palm Desert Page 3 are clear and simple and are based on the lot dimensions (See, Development Standards set forth on the Revised Vesting Tentative Tract Map for 25296.): ��.J�� !-i,1��'� • �..�� rt�rJw��.rr�� r�l�,!i��nd. ��r�liuur4� �t�rNr�dc�t,� ��t�c�'��! ��i�iPti��t4� � �:��t�TY',�1� :. 5�:��`tr�,Rl� REAFiY�.Ft(� QtJ�L�GI�I�G �s�� {i��'�� `�; ��.�,� � s��F� ��r��,c� . H��ir � l�. . '151�' ---�.,t��a• 2G^� ��;13.' +IFV. y p' � ��. , '� �7?�•.�.T . , 1�G' •�_. . 15` g' � IuICi�) 15' T. ��,: ._. �f,;� �uG' ' 1�4n' _,l" __��' �T•`' .k{IIU. �i�"�� r;' � � 7L7` 1:�Y',�' � �ii � r.cr� q,� ' z�F . _ 1 s". ,r �f I�J`, f�.. � �' et�� _--;,n• �17° ��7, ,�' ultd, tir �z�; ' "_ ^ u 50' ''S�7' _ lt�' 6d'�f�' h11N. �t0` _ 2'��,_„� �? i�4" 1��7' �l"�' :G' G�J�' ;;IaE 10' - '�'Iry' � 0' UItiE? 'i Qc • �i - 5��T 1��:�� 1 r�� 10^ Gti�� S�CE " i C� ...�.�+a� + 'fi"1f{Y.�T �i7 � ��.�:��,4sia!� r��e�s rC� THE Cwl��iae,� ��•r�.rco�, �;�r.�w r�rr�iti9ur� -�o,� ��a� �i�er��'sr� ( ;: 4. The proposed ameiidment provides for decreased setback requirements that would interfere with the homeowners' privacy rights as well as the use and enjoyment of their property in the Canyons. These rights are protected by the Bighorn CC&Rs, which is a contract between the applicant Bighorn Development (the "Declarant" , in the CC&Rs), Bighorn Homeowners Association (the "Association" in the ', . CC&Rs) and all Bighorn lot owners (the "Members" in the CC&Rs). The CC&Rs are made available to all property owners who own property in the Canyons and advise property owners that they are established for the "purpose of enhancing and perfecting the value, desirability and attractiveness of the Properly." California courts have held that "CC&Rs are the primary means of achieving the stability and predictability so essential to the success of a shared ,. ownership housing development. In general, then, enforcement of a common interest development's recorded CC&R's will both encourage the development of land and ensure that promises are kept, thereby fulfiling obht of the policies identified by the Restatement [of Pro�erty 1354]." (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Ca1.4t 361, 382-383.) These rights vested when building permits were issued for each lot. ' Mr. Pasternacic pi.uchased his home in the Canyons specifically because of the open-air environment created by the expansive land and the layout of the homes in relation to each other. If the proposed amendment to the Development Plan were adopted, homes would be built with very little space between them, thereby zssoiort 9zo-oo>> 4771257.2 a01/23/l3 RUTAN FUTAN b TUCKER,LLP ' City of Palm Desert Page 4 interfering with the homeowners' privacy rights and their use of the light and air surrounding the properties. Adoption of the proposed decreased setback requirements and increased building lot coverage would create a crowded and congested community and may result in a talcing of vested property rights. (See Pocket Protectors , supra, at 937 [plans that do not provide for adequate setbacks lead to the "overall degradarion of the existing visua.l character of the site from the excessive massing of housing with insufficient front, rear, and side yard setbacics."].) Such an overcrowded community is certainly not what the homeowners bargained for when they purchased their homes in the Canyons. Moreover, the United States and California Constitutions bar a governmental entity from enacting a law which has — at its primary purpose or effect — the arbitrary elimination of pre-existing rights of contract or pre-existing property rights arising under the law. 5. Bighorn currently owns only 10% of the property in the Canyons and therefore 11as no right to unilaterally seelc an amendment to the Development Plan that would negatively affect the other 90% of the property owners in the Canyons. 6. The Notice represents that Bighorn is seeking the amendment because "[m]any of the subdivided lots in the Canyons at Bighorn development are irregular in shape, are located on sloping lots, abut curving streets, or contain other limitations that make it impractical to apply any set of rigid development standards." This is a blatant misrepresentation. Most of the lots in the Canyons are rectangular lots are located on flat land. Moreover, the current development standards are not"rigid;" they are flexible and logical in that the requirements applicable to the lots vary I based on lot size. The proposed development standards are rigid and impractical as they impose the same setback requirements on lots of all sizes. As a result, under the proposed development standards, a lot that is 75' x 100' will have the same setbacks as a lot that is 150' x 180'. 7. It appears that Bighorn seeks this amendment not because of the reasons stated in the Notice, but ,because thexe is ongoing litigation against the Bighorn Homeowners' Association. There is no evidence establishing that any properiy owner in the Canyons (with the exception of Mr. Pasternack's neighbor who has been enjoined from building a structure outside the current setback requirements) has complained that the current setbacic requirements — which have been in place for nearly 15 years - are onerous or burdensome and should be changed, 2530/02192D-0011 4771257.2 a0]/23/13 I�UTAN RUTAN 6 TUCHER,LLP � City of Palm Desert ' Page 5 There is a pending lawsuit against Bighorn regarding its practice of approving building plans that do not comply with the setback requirements mandated by the Palin Desert Development Plan and adopted by incorporation into the Bighorn CC&Rs. Bighorn now seelcs to retroactively validate its improper approval of illegal building plans by proposing this amendment. ' 8. Should the City approve the amendment, the City of Palm Desert may be exposed to potential liability in the pending litigation. For the foregoing reasons, the proposed new development standards for the Canyons should not be approved. Sincerely, RUTAN&TUCKER, LLP � � �.'�1 ,, ,,� ' ,1,�/,��,�Q �'�.� `�� ( t Milford W. Dahl, Jr. Cc: City Council Members via ennail cityhall@cityofpalmdesert.org 2530l021920-00 I l 477t257.2 a01/23/13