Resolution No. 5463 1-
RESOLUTION NO. 5463
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CYPRESS ADOPTING
WRITTEN RESPONSES TO WRITTEN OBJECTIONS ON THE SECOND AMENDMENT
TO THE REDEVELOPMENT PLAN FOR THE LOS ALAMITOS RACE TRACK AND
GOLF COURSE REDEVELOPMENT PROJECT AREA AND THE NEGATIVE
DECLARATION PREPARED IN CONNECTION WITH THE SECOND AMENDMENT
WHEREAS, the City Council of the City of Cypress ("City" or "City Council"), on June
18, 1990, adopted Ordinance No. 851 approving and adopting the Redevelopment Plan ("Plan")
for the Los Alamitos Race Track and Golf Course Redevelopment Project Area ("Project Area");
and
WHEREAS, the City Council, by Ordinance No. 952 adopted on January 9, 1995,
amended the Plan to conform the Plan to the requirements of Assembly Bill 1290 as codified in
Health and Safety Code Section 33333.6 ("First Amendment"); and
WHEREAS, the Plan as amended by the First Amendment is hereinafter referred to as
the "Redevelopment Plan;" and
WHEREAS, the Cypress Redevelopment Agency, a public body, corporate and politic,
organized and existing under the Community Redevelopment Law (Health & Safety Code
§ 33000 et seq.) ("CRL"), has proposed to the City Council the Second Amendment to the
Redevelopment Plan ("Second Amendment") for the purpose of extending the Agency's eminent
domain authority under the Redevelopment Plan for twelve years, amending the Land Use
section of the Plan to provide that land uses within the Project Area shall be in conformity with
the City's General Plan, as it exists today or is hereafter amended, and making nonsubstantive
textual changes to the Plan to update Plan language consistent with the CRL, which Second
Amendment is presented in the form of an Amended and Restated Redevelopment Plan; and
WHEREAS, on March 26, 2001, the Agency and City Council held a joint public
hearing, duly noticed and held in accordance with applicable law, on the proposed Second
Amendment to the Redevelopment Plan; and
WHEREAS, at or prior to the time of the joint public hearing, the City Council received
three written objections to the adoption of the Second Amendment, which written objections
were from (1) Jonathan C. Curtis, an attorney with the law firm of Sheppard, Mullin, Richter &
Hampton LLP, 333 South Hope Street, 48th Floor, Los Angeles, CA 90071-1448, representing
Cottonwood Christian Center, (2) Robert K. Hillison, an attorney with the law firm of Caswell,
Bell & Hillison LLP, Post Office Box 5259, Fresno, California 93755-5259, representing Los
Alamitos Race Course, and (3) Alice B. Jempsa, Mayor of the City of Los Alamitos, 1391
Katella Avenue, Los Alamitos, CA 90720-5600, on behalf of the City Council of the City of Los
Alamitos and the City of Los Alamitos; and
WHEREAS, the CRL requires that prior to the adoption of a redevelopment plan
amendment that the City Council respond in writing to any written objections received by
adopting written responses to the written objections; and
WHEREAS, following the closure of the March 26, 2001 joint public hearing of the
Agency and City Council, the proposed adoption of the Second Amendment and proposed
approval of the negative declaration prepared in connection with the Second Amendment, were
continued to the April 9, 2001, Agency and City Cou. cil meetings, to permit the City Council to
consider the written objections and to permit the ;valuation of the written objections and the
preparation of written responses to the written objections; and
WHEREAS, at the April 9, 2001, Agency and City Council meetings, the foregoing items
for consideration were further continued to permit the further evaluation of the written objections
and the preparation of written respo ,ses to the written objections; and
WHEREAS, the City Council has re'sewed, evaluated, and fully considered the Report to
Council prepared by the Agency in connecticn with the Second Amendment and submitted to the
City Council and all other oral and written staff reports and information presented, all evidence
and testimony for and against the adoption of the Second Amendment, and all objections to the
adoption of the Second Amendment, including the t:aree written objections; and
WHEREAS, written responses to the three written objections received to the Second
Amendment have been prepared and have been fully reviewed, evaluated, and considered by the
City Council;
NOW, THEREFORE, the City Council of the City of Cypress does hereby resolve as
follows:
1. The Recitals set forth above are true and correct and are incorporated herein as
though fully set forth and are made a part hereof.
2. The City Council has reviewed, evaluated, and fully considered the three written
objections to the Second Amendment received at or prior to the joint public hearing, which
objections are set forth in Exhibit "A" hereto, and the City Council hereby finds and determines
that such objections are without merit and are hereby overruled for the reasons detailed in the
written responses to these three written objections set forth in Exhibit "B" hereto. The written
responses attached hereto as Exhibit "B" are hereby adopted as the written findings of the City
Council in response to the three written objections received. All oral and written objections to
the Second Amendment received at or prior to the joint public hearing are hereby overruled.
3. The City Clerk is hereby directed to transmit, by prepaid first class mail, a
certified copy of this Resolution, including Exhibit "A" and Exhibit "B", to Jonathan C. Curtis,
Robert K. Hillison, and Mayor Alice B. Jempsa, at their respective addresses.
PASSED, APPROVED, AND ADOPTED this 27th day of August, 2001.
74/ A\
MAYOR OF THE CITY OF CYPRESS
ATTEST:
S� •
111• Y CLERK OF T CITY OF CYPRESS
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
I, JILL R. INGRAM-GUERTIN, City Clerk of the City of Cypress, DO HEREBY
CERTIFY that the foregoing Resolution was duly adopted at a regular meeting of the said City
Council held on the 27th day of August, 2001, by the following roll call vote:
AYES: 4 COUNCIL MEMBERS: Keenan, McCoy, Piercy, and McGill
NOES: 0 COUNCIL MEMBERS: None
ABSENT: 0 COUNCIL MEMBERS: None
ABSTAIN: 1 COUNCIL MEMBERS: Sondhi
(Mayor Pro Tem Sondhi did not participate in this action due to her ownership of
property in proximity to the project area.)
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ITY CLERK OF T:i CITY OF CYPRESS
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EXHIBIT "A"
COPIES OF THREE WRITTEN OBJECTIONS TO SECOND AMENDMENT RECEIVED BY
AGENCY AND CITY COUNCIL
[SEE FOLLOWING PAGES]
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
.a .•co a.wo.a.•..w.• •.•«caua«o w«wa cowro•■••o«•
ATTORNEYS AT LAW
FORTY-EIGHTH FLOOR
333 SOUTH HOPE STREET
LOS ANGELES,CALIFORNIA 90071-14-48
WRITERS DIRECT LINE TELEPHONE (2131 620-1780 OUR FILE NUMBER
(213)617-5565 FACSIMILE (2131 620-1398 WXH-67327
jcurtis@smrh.com
March 26, 2001
HAND DELIVERED
City Council of the City of Cypress
City of Cypress
5275 Orange Avenue
Cypress, California 90630
Re: City of Cypress City Council Public Hearing on Monday. March 26,
2001, Agenda Item Nos. 4. 11 and 12.to Consider the Second
Amendment to the Redevelopment Plan for the Los Alamitos Race
Track (LART) and Golf Course Redevelopment Project Area(the
"Amendment") and Certification of the Negative Declaration.
Honorable Mayor Piercy and Members of the City Council:
This Firm represents the Cottonwood Christian Center("Cottonwood"),the owner
of approximately 17.9 acres of real property("Cottonwood Property")at the northwest corner of
Katella Avenue and Walker Street within the Los Alamitos Race Track and Golf Course
Redevelopment Project Area(the "Los Alamitos Redevelopment Area").
As you know,Cottonwood and representatives of the City of ("City")and
the City of Cypress Redevelopment Agency("Agency") have had numerous discussions regarding
developing a mutually acceptable planning scheme for the redevelopment of a portion of the Los
Alamitos Race Track and Golf Course Redevelopment Project Area (the "Project Area"), and
Cottonwood remains enthusiastic and committed to working with the City and the Agency to do
so.
As a result, our client feels that the proposed Amendment to the Redevelopment
Plan for the Los Alamitos Race Track and Golf Course Redevelopment Project Area (the
"Redevelopment Plan") is premature. Based on the fact that Cottonwood, the City and the
Agency are still in discussions to develop alternative planning scenarios for the Project Area and
no definitive redevelopment plan as been established, it seems likely that additional amendments
to the Redevelopment Plan may be necessary or desirable.
Accordingly,Cottonwood hereby requests that this hearing on the Amendment be
continued to,among other things,allow Cottonwood,the City,the Agency and others additional
time to formulate a mutually acceptable redevelopment project. However, in the event that the
City Council conducts the hearing on the Amendment,our client has certain comments,objections
LOS ANGELES ■ ORANGE C OU N T Y • SAN DIEGO • SAN FRANCISCO
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
City Council of the City of Cypress
March 26, 2001
Page 2
and concerns with respect to the Amendment which are set forth below,in particular the language
contained in the Amendment as to the legitimacy of future changes in land uses for the Project
Area.
California Health and Safety Code Section 33333 provides that a redevelopment
plan must, among other things, include"[1]imitations on type, size,height, number,and proposed
use of buildings? In this regard, the proposed Amendment to the Redevelopment Plan provides
at Section 401 the following: "[t]he land uses permitted by this Plan shall be those permitted by
the General Plan and Zoning Ordinance ... as they exist now or are hereafter amended? Section
410 of the proposed Amendment also provides the following: "[t]he limits on building intensity,
type, size and height, shall be established in accordance with the provisions of the General Plan,
the applicable zoning ordinances ... as they now exist or are hereafter amended."
As noted above, the Community Redevelopment Law (California Health and
Safety Code Sections 33000 et seq.)(the"redevelopment Law"),requires that the permitted uses
in a redevelopment plan area must be set forth with some amount of specificity. Here,the Agency
is not only proposing to incorporate existing uses but also any future changes in uses that occur
in future amendments to the General Plan or applicable zoning ordinances by relying upon the
general language of "or are hereafter amended? This language does not conform with the
specificity requirements of Redevelopment Law and will also effectively allow the City and the
Agency to circumvent the law by not requiring the Agency to follow applicable amendment
procedures for an amendment of the Redevelopment Plan to account for any future changes in
permitted uses in relevant zoning and planning documents.
Provisions such as these in a redevelopment plan that purport to automatically
amend the redevelopment plan when a General Plan or zoning is changed are ultra vices.
Redevelopment Law has specific provisions and mandates that procedures be followed for the
amendment of redevelopment plans. For example, under California Health and Safety Code
Section 33450, an amendment can only be done by ordinance,and there are extensive notice and
hearing requirements under Health and Safety Code Sections 33452-33455. With the Amend-
ment,as proposed, the City and the Agency will be able to effectively amend the Redevelopment
Plan without having to follow any of the provisions set forth above. This is in violation of
Redevelopment Law and should not be allowed by this City Council.
Moreover, Redevelopment Law establishes a twelve (12) year time limit for a
governmental agency to exercise its power of condemnation in the project area,which time limit
can only be extended by an amendment to the redevelopment plan. Cal.Health and Safety Code
§33333.2(a)(4). In connection with this power of condemnation,the governmental agency must
find the existence of both physical and economic blight. Cal. Health and Safety Code § 33031.
Here, the Agency made the requisite findings of blight approximately twelve years ago. Now,
without undertaking any additional"blight"study and making any new findings of blight,the City
and the Agency propose to extend the power of condemnation for an additional twelve(12)years.
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
City Council of the City of Cypress
March 26, 2001
Page 3
This is not right. Rather, when establishing this time limit, the Legislature intended that after
twelve years of redevelopment, substantial progress would have been made to ease the blighting
conditions that burdened the area at the time the original plan was adopted. Thus, if an agency
chooses to extend its powers of condemnation for an additional term,at a minimum, a new blight
study must be prepared and new findings of blight must be made to justify the extension. Under
the current circumstances, however, neither the City nor the Agency has done so, which violates
Redevelopment Law.
Finally,we received a copy of a letter from Caswell Bell&Hillison LLP,attorneys
for Los Alamitos Race Course, to the City dated March 19, 2001 with respect to his client's
objections and concerns to the Negative Declaration. We hereby concur with those objections.
CONCLUSION
Given the foregoing, on behalf of Cottonwood, we hereby request that the City
Council reject the proposed amendment to the Redevelopment Plan at this time for being both
premature and in violation of Redevelopment Law. Should the City Council proceed, however,
Cottonwood requests that after public comment and testimony, the City Council postpone the
hearing on the proposed Amendment(i) to allow the parties to continue their discussions with
respect to a mutually agreeable development plan for the Project Area and(ii)to provide the City
and the Agency with sufficient time to comply with Redevelopment Law as provided above.
Ve ly; •urs,
Ig-
Jon. - • . Curtis
for SHEPPARD, MULLIN, RICHTER&HAMPTON up
IALCC\[EMVX11170277243.1
cc: City Clerk
Patrick P. Importuna, City Manager
Bill Wynder, Esquire, City Attorney
Pastor Bayliss Conley
Rev. Mike Wilson
Mr. Mel Malkoff
Marsh Tanner, Esquire
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CASWELL BELL & HILLISON LLP
ATTORNEYS AT LAW
POST OFFICE BOX 5259
G. THOMAS CASWELL. JR.
JAMES M. BELL FRESNO, CALIFORNIA 93755-5259
ROBERT K. HILLISON
RAN GOLF KRBECHEK 5200 NORTH PALM AVENUE TELEPHONE 559.225.6550
HAGOP T. BEDOYAN
OEANNA K. JENSEN SUITE 211 FACSIMILE 559.225.7912
BRIAN K. CUTTONE FRESNO. CALIFORNIA 93704-2228 www.casweilbell.com
OF COUNSEL
1. RUSSELL HOSE
:OBERT O. CROSSLAND March 19, 2001
MA JEAN HARVEY
L
BY FEDERAL EXPRESS
Mr. Doug Hawkins, AICP
City of Cypress
5275 Orange Avenue -
Cypress, CA 90630
Re: Initial Study dated February 28, 2001
Second Amendment to the Redevelopment Plan for the Los Alamitos
Race Track and Golf Course Redevelopment Project Area
Dear Mr. Hawkins:
We are attorneys for Los Alamitos Race Course and, on behalf of our client,
we submit herewith our comments to the above-referenced Initial Study.
For the reasons set forth herein, we object to the recommendation that a
Negative Declaration for the project should be adopted, and request that the City of
Cypress Redevelopment Agency ("Agency"), as the lead agency, reject the
recommendation and direct that an Environmental Impact Report("EIR") be prepared.
The Initial Study's fundamental defect is that it does not take into account
the proposed Cypress Town Center Master Plan Project("Town Center Project") which is
described in the City of Cypress Proposed Town Center Master Plan attached hereto. As
of the date hereof, the Agency has taken substantive steps to implement the Project: the
Agency has developed a comprehensive description of the Town Center Project, it has
obtained a restaurant feasibility study, it has requested Statements of Interest in
participating in the Town Center Project from owners of property in the Los Alamitos
Race Track.and Golf Course Redevelopment Project Area("LART Project Area"), and a
moratorium on development in the LART Project Area which will not expire until
September, 2001, has been adopted. The fact that the Initial Study does not consider the
Town Center Project constitutes a fatal flaw in the environmental analysis and, therefore,
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Mr. Doug Hawkins, AICP
March 19, 2001
Page 2
the recommendation that a Negative Declaration be adopted instead of preparing an EIR
as required by the California Environmental Quality Act("CEQA") must be rejected.
In its preparation of the Initial Study, the City of Cypress ("City") has
violated its own Guidelines for Evaluation of Environmental Impacts contained in Section
3.3 of the Environmental Checklist Form. For example, Section 3.3(2) states that, "All
answers must take account of the whole action involved, including off-site as well as on-
site, cumulative as well as project-level, indirect as well as direct, and construction as
well as operational impacts." The City's analysis in the Initial Study mores the Town
Center Project as if it does not exist and fails to take into account any of the impacts of
the Town Center Project.
Section 3.3 of the Environmental Checklist Form requires a finding of a
"Potentially Significant Impact" if the lead agency lacks information to make a finding of
insignificance. Throughout the Initial Study, the City has stated that information is
unknown but, contrary to the Guidelines for Evaluation of Environmental Impacts, has
concluded that there will be no significant impact. Examples are found in Section 4.4(b)
with respect to riparian habitats or sensitive natural communities; Section 4.4(d)with
respect to wildlife corridors or native wildlife nurseries; Section 4.5(c)with respect to
paleontological resources; Section 4.5(d) with respect to human remains; and Section
4.10(a)with respect to mineral resources.
A project is an activity that may cause a direct(or reasonably-foreseeable
indirect) physical environmental change. Throughout the Initial Study, the City states that
the extension of the Agency's power of eminent domain will not"directly" impact the
environment. The only reasonable inference from this statement is that the City concedes
that the project(e.g., extension of the Agency's authority to condemn in the LART
Project Area) will have a reasonably-foreseeable indirect significant impact on the
environment. Throughout the Initial Study, there are explicit statements that issues will
be handled in the future, a concession that there will be significant impacts from the
Town Center Project. Many of the findings of"No Impact" are rationalized by statements
that "no development is proposed." Considering only the steps that the Agency has taken
to date with respect to the Town Center Project, such a statement is disingenuous, at best,
or untrue, at worst. Throughout the Initial Study, the City admits that despite the fact that
a certain concern may exist, because of the too narrow definition of"project," the City
concludes (erroneously) that there will be no impact. --'
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Mr. Doug Hawkins, AICP
March 19, 2001
Page 3
CEQA requires that the timing of environmental analysis begin at the
earliest practicable time. A lead agency is prohibited from dividing a project into small
components which, by themselves, may not have a significant effect on the environment.
That is consistent with the CEQA Guidelines and the requirement of the Guidelines for
Evaluation of Environmental Impacts contained in Section 3.3 of the Environmental
Checklist Form used by the City in analyzing the project. If a governmental activity is a
necessary first step in a chain of events which would culminate in physical impact on the
environment, to comply with CEQA an EIR is required.
If the proposed Town Center Project is included in the analysis, there are
potentially-significant impacts with respect to, among other things, Aesthetics (Sections
4.l(c)and (d)), Air Quality (Sections 4.3(a)-(e)), Geology (Sections 4.6(a), (b) and (e)),
Hazards (Section 4.7(g)), Hydrology (Sections 4.8(a), (c), (e) and(f)), Land Use(Section
4.9),Noise(Sections 4.11(a), (c) and (e)), Public Services (Section 4.13), Recreation
(Section 4.14(a)), Traffic (Sections 4.15(a), (b), (e), (t) and(g)), and Utilities (Section
4.16). Therefore, the Mandatory Findings of Significance in Section 4.17 must be
amended to show potential significant impacts will result and that an EIR is required.
Taking Land Use as one example, the applicable Specific Plan designates
the LART Project Area for use as a business park, golf course and race track. A review
of the description of the Town Center Project(attached hereto) leads to the conclusion
that changes in the Specific Plan, land use designations and zoning are necessary to
implement the proposed Town Center Project. Because we know that today, an EIR is
required now.
The extension of the Agency's authority to condemn property in the LART
Project Area is a necessary step in the chain leading to development of the Town Center
Project; it represents a commitment by the Agency to the Town Center,Project because,
without authority to condemn property in the LART Project Area, the Agency will not be
able to proceed with it. The extension of the Agency's power of condemnation is not
merely a step that does not necessarily lead to development because, without such
authority, the Agency will be unable to proceed with the Town Center Project; there is a
direct causal link between extension of the Agency's authority to condemn and
development of the Town Center Project.
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Mr. Doug Hawkins, AICP
March 19, 2001
Page 4
The analysis required by CEQA must be integrated with the analysis
required by the Community Redevelopment Law. For example, to amend the
Redevelopment Plan for the LART Project Area and extend the Agency's power of
eminent domain, the Agency must find that the LART Project Area is blighted within the
meaning of the Community Redevelopment Law and, if found to be blighted, how the
proposed Town Center Project will impact the LART Project Area. Since a finding of
blight under the Community Redevelopment Law includes a physical component, CEQA
is implicated and the in-depth analysis that is possible only in an EIR is required; blight
cannot simply be assumed.
If the Agency's authority to condemn property in the LART Project Area is
extended without environmental analysis, all future Town Center Project analysis will
assume that the Agency has the power of eminent domain for an additional twelve years,
to 2014. Because the Agency cannot implement the proposed Town Center Project
without the authority to condemn property in the LART Project Area,the extension of its
authority is the necessary linchpin upon which the Agency's ability to proceed with the
Town Center Project depends. Accordingly, an EIR is required.
On behalf of Los Alamitos Race Course,we respectfully request that the
Agency reject the recommendation that the Negative Declaration be adopted and, instead,
direct the City to prepare an EIR.
ery truly yo
Robert K. Hillison
RKH/ch
Attachment
c: Los Alamitos Race Course
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EXHIBIT "B"
City of Cypre Proposed Town Center Masterplan �(
The Los Alamitos Race T9rack d Golf Course Redevelopment Project Area Includes a
vacant frontage area of 35 to •5 acres. which is envisioned as the site for a Cypress
Town Center development. • rrently this land area is in multiple private ownership
and stretches from Walker.S •• t to the east to the Cypress Golf Course to the west
along Kat+elia Avenue. The • •st westerly area is anticipated for a potential hotel
development.
Based upon the results of a •• rkct and feasibility study aimed at a restaurant row
development scenario, the stn • goals and objectives of the City's Strategic Plan and
the opportunity that :exists .to create a significant development to serve the City of
Cypress at thie key location, •. City Council/Redevelopment Agency has directed staff
to proceed with the devcl• • .•-• of a Town Center Masterplan.
The Town Center will need to • orporate a tenant mix with two or three larger anchor
rstallets/entertaiumcnt uses :to create the necessary synergy to draw a cross mix of
consumers to shop the pro jot• along with drawing the additional quality retailers to
augment the anchor tenant mix Examples of other canter of various sizes are: Long
Beech Town Center.Irvisst kctplace and Aliso Viejo Town Center.
While the exact tenant mix w be dependent upon specific marketing efforts, it is
anticipated that the coznponen : of the Tow** Center could Include the following types
and scale of uses:
• Major anchor of. .. •roximetely 130,000 - 160,000 square feet - discount
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warehouse.type user which generates over $150,000,000 in annual taxable
sales.
• Soft goods retailer •or of approximately 60,000 - 80,000 square feet,
which generates ov $30,000,000 in annual taxable sales,
• Upscale health elu. of approximately 40.000 square feet, which draws
restaurants.
• Multiplex theater •or of approximately 80,000 square feet or another
similar . • .. . • oriented use, which draws restaurants and shops.
• Office supply user f approximately 25,000 square feet, which generates •
over $5,000,000 In .ual taxable sales.
• Soft goods related • domestics/Iinens concept of approximately 40,000
square feet, which • • •tog over$7,000.000 in annual taxable sales.
• Three to five, 5,000 - 10,000 square foot restaurant pads.
• Take out/food court • • pt of approximately 15,000 square feet with dining
patio type atmosp• -
• Specialty grocery • approximately 15,000 - 30.000 square feet. which
generates over $15.. •1,000 in annual sales (estimate that 35% is taxable).
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EXHIBIT "B"
The Town Center Ucvelopm t is envisioned as complimenting the existing Los
Alamitos Race Track and.Cyp ess Golf Course. The precise northern boundary for the
Town Center will need au co Ada- the parking needs of the Los Alamitos Race Track
and be sensitive to mainta•• ig views of the race track facility. The proposed hotel
development may procoed ah• • separately under separate ownership, but needs to be
incorporated into the design a • site pluming stages of the Town Center development.
The Town Center develops:le t shall strive to provide mutually beneficial linkages to
the Los Alamitos Race Tuck the Cypress Golf Course and future hotel to reinforce
the synergistic relationship be.• ecn these customer serving land uses.
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CITY OF LOS ALAMITOS
March 21, 2001
p-b The Honorable Mike McGill
• = ; City of Cypress
r _ . , trr y 5275 Orange Ave.
'J
• , e��� Cypress, CA 90630
J••.i 101 V.
Dear Mayor McGill:
„la, The City of Los Alamitos has had an exceptional relationship with the City of Cypress for
0hce ts.Jemoso many years, and we believe that the relationship can and will continue. However, we
Council Members have an issue which must be brought to your attention, and that is Cypress' interest to
2onald Bates
4rtnur oeBolt develop commercial and retail uses on the Los Alamitos Race Track and Golf Course
Kenneth C.Porker
Marilynn M.Poe Redevelopment Project Area.
City Manager:
Robef1 C.Dominguez Our respective City Managers and City Attorneys have met and discussed the concerns of
the City of Los Alamitos, which essentially are over increased traffic. While we believe
that these meetings have been beneficial and that they will continue, the City Council has
met and asked that this letter be drafted and directed to your office. Pursuant to your
notice regarding the proposed second amendment to the Redevelopment Plan, we voice
our objection to the extension of eminent domain if it will be used to directly, or
indirectly, eliminate potential uses which could provide the residents of Los Alamitos
with genuine traffic mitigation on Katella. The City further objects to any change in the
Redevelopment Plan, or the extension of eminent domain, that could modify or exclude
uses that are currently permitted and which would result in a reduction in traffic on
Katella compared to other alternative developments. Your notice indicates that the
second amendment to the Plan would be considered at your March 26,2001 joint meeting
of the City Council and the Redevelopment Agency. Accordingly, we are raising our
objection at this time.
The City of Los Alamitos also requests prior notice before your City Council or Planning
Commission considers future development options at the the Race Track property, and
we would appreciate being part of those discussions. It is the desire of the City of Los
Alamitos to continue to work cooperatively with Cypress on the Race Track
development, and become part of the solution that would address the needs of the City of
Cypress and the concerns of the City of Los Alamitos.
3191 Katella Avenue
Los Alamitos,CA
90720-5600 Sincerely,
Telephone:
(562)431-3538 CITY OF LOS ALAMITOS
FAX(562)493-1255
www.Ci.Los•A arnitos.CA.US
ALICE B. JEM
Mayor
® RECYCLABLE
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EXHIBIT "B"
WRITTEN RESPONSES TO WRITTEN OBJECTIONS
I. LETTER FROM JONATHAN C. CURTIS, ATTORNEY, LAW FIRM OF
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP, REPRESENTING
COTTONWOOD CHRISTIAN CENTER
The City Council, received a three-page letter, dated March 26, 2001, from Jonathan C.
Curtis, attorney with the law firm of Sheppard, Mullin, Richter & Hampton LLP, 333 South
Hope Street, 48th Floor, Los Angeles, CA 90071-1448, representing Cottonwood Christian
Center ("Cottonwood"). A copy of Mr. Curtis' letter is included in Exhibit "A" to this
Resolution. Mr. Curtis' letter states that Cottonwood is the owner of approximately 17.9 acres of
real property at the northwest corner of Katella Avenue and Walker Street, defined in his letter as
the "Cottonwood Property." The described real property is within the boundaries of the Los
Alamitos Race Track and Golf Course Redevelopment Project Area.
After introductory statements, Mr. Curtis specifies or alludes to six objections against the
adoption of the Second Amendment. Each objection and the response thereto is set forth below.
Objection No. 1: Mr. Curtis argues the Second Amendment is premature because the City
and Cottonwood are in discussions "to develop alternative planning scenarios for the Project
Area and no definitive redevelopment plan has been established." Mr. Curtis states that action
on the Second Amendment should be continued to allow Cottonwood, the City, the Agency, and
other additional time to formulate a mutually acceptable redevelopment project.
Response to Objection No. 1:
The premise of Objection No. 1 is that the Second Amendment is being undertaken
because of discussions between the Agency and certain Project Area landowners about the future
uses of certain Project Area properties, including the Cottonwood Property. That premise is
incorrect and there is no merit to the objection.
There are currently three redevelopment plans adopted within Cypress:
(1) The Redevelopment Plan for the Los Alamitos Race Track and Golf Course
Project Area [in which the Cottonwood Property is located]. The Agency's authority to acquire
property by eminent domain with respect to this Project Area expires on or about June 18, 2002.
(2) The Redevelopment Plan for the Civic Center Project Area. The Agency's
authority to acquire property by eminent domain with respect to this Project Area expires on or
about April 10, 2001.
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(3) The Redevelopment Plan for the Lincoln Avenue Project Area. The Agency's
authority to acquire property by eminent domain with respect to this Project Area expires on or
about June 25, 2002.
At its August 14, 2000, meeting, the Agency authorized Agency staff to undertake steps
leading to the possible amendment of all three redevelopment plans to address the expiration of
eminent domain authority with respect to each and all of the three redevelopment plans. The
Second Amendment is part of that process and unrelated to any discussions concerning future
land uses on any real property within the Los Alamitos Race Track and Golf Course Project
Area. Discussions concerning land uses in that Project Area have occurred from time to time
and with various of the landowners within Project Area. There is no Agency plan or project as
of today that would require the adoption of the Second Amendment in order to proceed. Indeed,
the Agency's authority to acquire real property with respect to the Los Alamitos Race Track and
Golf Course Project Area does not expire for another ten (10) months. In light of the
requirements of the California Community Redevelopment Law (Health & Safety Code § 33000
et seq.) with respect to amending redevelopment plans to extend eminent domain authority, the
Agency could have undertaken the proposed Second Amendment now, as it decided to do, or a
year from now, or even after the date eminent domain authority had expired. Thus the timing of
the Second Amendment is not related to any discussions concerning future land uses, but results
from a desire of the Agency to retain all of its redevelopment tools in all three of its
redevelopment project areas. In that regard, the City Council, with no oral or written objections
received, approved and adopted for first reading the ordinance approving the Third Amendment
to the Redevelopment Plan for the Civic Center Project Area at its March 26, 2001, meeting, the
same meeting at which action on the ordinance approving the Second Amendment to the
Redevelopment Plan for the Los Alamitos Race Track and Golf Course Redevelopment Plan was
to be considered but was deferred due to receipt of the three written objections to which this
Resolution responds. The proposed amendment to the Redevelopment Plan for the Lincoln
Avenue Project Area was the subject of a joint public hearing the Agency and City Council held
on August 13, 2001. As such, the purpose of amending all three redevelopment plans is the
same: to extend the Agency's eminent domain authority and to make certain other revisions to
the plans including language changes to retain consistency between the redevelopment plans and
the City's General Plan.
Thus, the Second Amendment to the Redevelopment Plan for the Los Alamitos Race
Track and Golf Course Redevelopment Project Area, about which this objector is concerned, has
not been proposed to single out the Cottonwood Property or any property within that project
area, but rather as an overall Agency effort to revise and update its redevelopment plans in order
for the Agency to retain all of the redevelopment and property acquisition tools currently existing
in each of the redevelopment plans.
Therefore there is no need to defer action to allow time for the Agency, City,
Cottonwood, and others "to formulate a mutually acceptable redevelopment project." The Los
Alamitos Race Track and Golf Course Project Area would continue in existence regardless of the
Second Amendment, the Agency's eminent domain authority would continue for another ten (10)
months even if the Second Amendment were not adopted, and any planning or other discussions
with respect to properties within the Project Area may occur or not occur regardless of whether
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the Second Amendment is adopted. Moreover, there is nothing in the actions proposed to be
taken by the Agency and the City Council with respect to the Second Amendment that precludes
the Agency and City from continuing a dialogue with Cottonwood or any other property owner
in the Project Area.
See also the City Council's responses below to the written objections received from
Robert K. Hillison asserting that the CEQA analysis for the Second Amendment was flawed
because it failed to include the Town Center Master Plan, which responses are incorporated
herein as though fully set forth and are made a part of this Response to Objection No. 1.
For the foregoing reasons Objection No. 1 is without merit and is hereby overruled.
Objection No. 2: Mr. Curtis cites to Health and Safety Code Section 33333 and asserts the
California Community Redevelopment Law requires that permitted uses in the Project Area be
set forth with some amount of specificity and that amending the language in the Redevelopment
Plan for the Los Alamitos Race Track and Golf Course Project Area to allow permitted land uses
to conform to the City's General Plan as now existing or as the General Plan may be amended in
the future "does not conform with the specificity requirements of the Redevelopment Law."
Response to Objection No. 2:
There is no merit to this objection as the court in Franklin-McKinney School Dist. v. City
of San Jose (1991) 234 Cal. App. 3d 1599, 1605-1606, rejected this same argument and held that
reference to the city's general plan satisfied the requirements of Health and Safety Code Section
33333. The school district, the plaintiff in that case, challenged the adoption of a series of
ordinances that (i) approved redevelopment plans for three new redevelopment project areas and
(ii) merged two of the new project areas with nine other existing project areas. The school
district made the exact assertion made here by Mr. Curtis, i.e., that the redevelopment plans were
defective because the plans failed to include the minimum level of information required by
Section 33333 and instead simply referred to the city's general plan. The court rejected the
school district's argument and held when the relevant information is readily accessible from the
general plan without unreasonable efforts by interested parties, no substantial rights are
implicated. In sum, it is well-settled practice in the adoption of redevelopment plans and plan
amendments, as confirmed by the court in the above-referenced case, to refer to the city's general
plan for the relevant information. For the foregoing reasons Objection No. 2 is without merit and
is hereby overruled.
Objection No. 3: Following the same path as Objection No. 2, Mr. Curtis asserts that
referring to the General Plan will permit the City and the Agency "to circumvent the law by not
requiring the Agency to follow applicable amendment procedures for an amendment of the
Redevelopment Plan to account for any future changes in permitted uses in relevant zoning and
planning documents."
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Response to Objection No. 3:
The response to Objection No. 2 is incorporated herein as though fully set forth and is
made a part of this Response to Objection No. 3. By holding as it did in Franklin-McKinney
School Dist. v. City of San Jose (1991) 234 Cal. App. 3d 1599, the court authorizes
redevelopment plans to refer to a city's general plan for its permitted land uses and related
matters. Thus there is no "circumventing of the law" as referring to the city's general plan is
authorized under California law. Thus any future changes in permitted land uses under a
redevelopment plan are permitted to be controlled by a city's general plan and changes to the
city's general plan. In that regard it is important to note that general plan amendments are
legislative acts (Gov. Code § 65301.5) and that the City Council must hold a noticed public
hearing prior to adopting a general plan amendment (Gov. Code § 65355). Thus neither a
landowner nor the public at-large is disadvantaged by a redevelopment plan referring to the
City's general plan for its land use controls or changes to those land use controls effected through
amendments to the City's general plan. For the foregoing reasons Objection No. 3 is without
merit and is hereby overruled.
Objection No. 4: Mr. Curtis asserts that redevelopment plan provisions "that purport to
automatically amend the redevelopment plan when a General Plan or zoning is changed are ultra
vires" because there are specific procedures set forth in the California Community
Redevelopment Law ("CRL") for amending redevelopment plans, including extensive notice
and hearing requirements, and with the Second Amendment the City and Agency would be able
to effectively amend the Redevelopment Plan without having to follow the redevelopment
amendment provisions of the CRL. Mr. Curtis concludes that the provisions of the Second
Amendment that refer to the City's general plan for land use control is a violation of the CRL.
Response to Objection No. 4:
The responses to Objections Nos. 2 and 3 are incorporated herein as though fully set forth
and are made a part of this Response to Objection No. 4. Again, referring to the City's general
plan for a redevelopment plan's land use controls is expressly authorized by Franklin-McKinney
School Dist. v. City of San Jose (1991) 234 Cal. App. 3d 1599 and so is not "ultra vires." The
court implicitly approved the very process about which Mr. Curtis complains. When
amendments to the City's general plan occur that affect property within the Project Area, no
amendment to the redevelopment plan is necessary as the redevelopment plan remains consistent
with the general plan as amended. Although Mr. Curtis may believe that referring to the general
plan for the redevelopment plan's the land use controls is contrary to the CRL, the court in the
Franklin-McKinney case held otherwise and expressly permits the type of amendment with
respect to land use controls set forth in the Second Amendment. For the foregoing reasons
Objection No. 4 is without merit and is hereby overruled.
Objection No. 5: Mr. Curtis asserts that in connection with a redevelopment plan
amendment that extends the Agency's authority to exercise its power of condemnation in the
Project Area, the Agency must prepare a new blight study and a new finding of blight must be
made to justify the extension of eminent domain authority. Based on this premise, Mr. Curtis
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asserts that because neither the City nor the Agency has undertaken that new blight study or
made new blight findings, the Second Amendment violates the CRL.
Response to Objection No. 5:
Mr. Curtis acknowledges that when the Redevelopment Plan for the Los Alamitos Race
Track and Golf Course Project Area was originally adopted the requisite findings of blight were
made. What Mr. Curtis fails to note is that once the blight findings are made, those findings are
final and conclusive. (Health & Safety Code § 33368; see, also Sweetwater Valley Civic Assn. v.
City of National City (1976) 18 Ca1.3d 270.) Pursuant to the CRL, new blight findings or an
analysis of blight remaining in the Project Area need be undertaken only for specified and
limited types of amendments to redevelopment plans. The Second Amendment is not one of
those types of amendments for which the CRL requires either a new blight study or new blight
finding or an examination of blight remaining in the Project Area.
When a new redevelopment plan is proposed, the Agency must prepare a report pursuant
to Health and Safety Code Section 33352. That report must include a description of the physical
and economic conditions in the proposed project area that cause the project area to be blighted.
(Health & Safety Code § 33352, subd. (b).) The ordinance adopting a new redevelopment plan
must include the finding that the project area is a blighted area, the redevelopment of which is
necessary to effectuate the public purposes declared in the CRL. (Health & Safety Code
§ 33367, subd. (d)(1).) Although required for new redevelopment plans, the foregoing described
blight analysis and blight finding are not required for all redevelopment plan amendments and
are not required for this Second Amendment to the Redevelopment Plan for the Los Alamitos
Race Track and Golf Course Project Area.
In amending a redevelopment plan, Health and Safety Code Section 33457.1 expressly
authorizes the Agency to prepare only those reports and information required by Health and
Safety Code Section 33352 and to make only those findings required by Health and Safety Code
Section 33367 that are warranted by the proposed amendment. The blight analysis and blight
finding are not warranted by the proposed Second Amendment. The State Legislature, in
enacting various CRL provisions, has established that a new blight analysis and blight finding, or
an examination of blight remaining in a project area, are required only for "major amendments"
that result in a potential financial impact on the division of tax dollars. The Second Amendment
is not any of these following described types of"major amendments:"
1. An amendment that proposes to add tax increment financing to a
redevelopment plan that does not have that tax allocation provision. (Health & Safety Code
§ 33354.5.) This CRL section is not applicable as the Redevelopment Plan for the Los Alamitos
Race Track and Golf Course Project Area included tax increment financing provisions when
originally adopted. The Second Amendment does not alter or affect those provisions.
2. An amendment that proposes to add territory to an existing project area
(the blight analysis and finding would refer only to the area being added and not to the original
project area). (Health & Safety Code § 33354.6, subd. (a).) The Second Amendment does not
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add any territory to the Project Area or change in any manner the boundaries of the Project Area
or the territory included within the Project Area.
3. An amendment to a redevelopment plan that utilizes tax increment
financing that proposes to increase the limitation on the number of dollars to be allocated to the
redevelopment agency. (Health & Safety Code § 33354.6, subd. (b).) The Second Amendment
does not include any increase to the number of dollars to be allocated to the Agency from the Los
Alamitos Race Track and Golf Course Project Area.
4. An amendment that proposes to extend the time limit set forth in a
redevelopment plan on the agency's establishment of indebtedness to be paid with tax increment
funds. (Health & Safety Code §§ 33333.2, subd. (a)(1)(B); 33333.6, subd. (a)(2); 33354.6, subd.
(a).) The Second Amendment does not propose to alter the foregoing time limit.
5. An amendment that proposes to lengthen the period during which the
redevelopment plan is effective. (Health & Safety Code § 33354.6, subd. (a).) No change to the
expiration date of the effectiveness of the Redevelopment Plan for the Los Alamitos Race Track
and Golf Course Project Area is proposed by or included in the Second Amendment. The time
limit on the effectiveness of the Redevelopment Plan was established by the First Amendment to
the Redevelopment Plan adopted in accordance with Assembly Bill 1290 by Ordinance No. 952
on January 9, 1995, and is not affected by the proposed Second Amendment.
6. An amendment that proposes to merge project areas. (Health & Safety
Code § 33354.6, sub. (a).) The Second Amendment does not propose to merge Cypress' three
redevelopment project areas. Each of the three project areas remains separate.
7. An amendment that proposes to add significant additional capital
improvement projects, as determined by the agency. (Health & Safety Code § 33354.6, sub. (a).)
The Second Amendment makes no changes in this regard.
Because the Second Amendment is not the type of redevelopment plan amendment that,
under the provisions of the California Community Redevelopment Law, triggers the requirement
for a new blight analysis/finding or an examination of blight remaining in the Project Area, the
objection to the Second Amendment is unfounded.
For the foregoing reasons Objection No. 5 is without merit and is hereby overruled.
Objection No. 6: Mr. Curtis states that he is in receipt of the letter from the law firm of
Caswell, Bell & Hillison, dated March 19, 2001, which states objections to the Negative
Declaration prepared in connection with the Second Amendment and that he concurs with the
objections to the Negative Declaration.
Response to Objection No. 6:
The March 19, 2001, letter from Caswell, Bell & Hillison, referred to by Mr. Curtis, is
the letter from Robert K. Hillison that constitutes the second of the three written objections to the
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Second Amendment received by the City Council. Included in Mr. Hillison's letter are
objections to the Negative Declaration prepared in connection with the Second Amendment. The
City Council's written responses to the written objections stated by Mr. Hillison with respect to
the Negative Declaration are set forth below and are incorporated herein as though fully set forth
and are made a part of this Response to Objection No. 6. For the foregoing reasons Objection
No. 6 is without merit and is hereby overruled.
For the reasons set forth above, the objections to the adoption of the Second Amendment
presented by Jonathan C. Curtis on behalf of Cottonwood Christian Center are each and all
deemed without merit and are each and all hereby overruled.
II. LETTER FROM ROBERT K. HILLISON, ATTORNEY, LAW FIRM OF
CASWELL, BELL & HILLISON LLP, REPRESENTING LOS ALAMITOS
RACE COURSE
The City Council received a four-page letter with two one-page attachments, addressed to
Mr. Doug Hawkins [Mr. Hawkins is an Associate Planner for the City of Cypress], dated March
19, 2001, from Robert K. Hillison, an attorney with the law firm of Caswell, Bell & Hillison,
Post Office Box 5259, Fresno, CA 93755-5259, representing Los Alamitos Race Course ("Race
Course"). A copy of Mr. Hillison's letter is included in Exhibit "A" to this Resolution. The City
Council acknowledges that the Race Course property is within the Los Alamitos Race Track and
Golf Course Project Area.
After introductory statements, Mr. Hillison sets forth a series of interrelated objections
based on the adequacy of the environmental review conducted for the Second Amendment
pursuant to the California Environmental Quality Act (Pub. Res. Code § 21000 et seq.)
("CEQA"), including an overarching assertion that an environmental impact report ("EIR")
should have been prepared in lieu of the Negative Declaration, and a overarching assertion that
the CEQA review was inadequate because the Initial Study and Negative Declaration did not
consider the "Town Center Master Plan Project." In order to respond to these interrelated
objections, the following five objections to the adoption of the Second Amendment are identified
and articulated based on the presentation set forth in Mr. Hillison's letter. Each objection and the
response thereto is set forth below.
Objection No. 1: Mr. Hillison alleges that the Negative Declaration is inadequate insofar as
it did not analyze the Cypress Town Center Master Plan Project ("Town Center Project").
According to Mr. Hillison, because the Initial Study and Negative Declaration do not consider
the Town Center Project, the Negative Declaration is flawed and an Environmental Impact
Report should have been prepared in lieu of the Negative Declaration.
Response to Objection No. 1:
The allegation that the Initial Study and Negative Declaration should have included the
Town Center Project as part of the project analyzed pursuant to CEQA is unsupportable. To
begin with, the Town Center Project represents, at this stage, only a potential and hypothetical
development concept. At this time it is entirely speculative as to what types of development may
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or may not ultimately occur within the Town Center area, an area that is smaller than the Los
Alamitos Race Track and Golf Course Project Area. (The Second Amendment affects the entire
the Los Alamitos Race Track and Golf Course Project Area, not just the properties within a
potential Town Center area). Among the numerous development scenarios that have been
discussed at one time or another, and that are continuing to be discussed to this day, include
differing and hypothetical site plans involving a myriad of differing and hypothetical potential
users and potential tenants. The potential users or tenants include various retail, commercial and
non-retail components, none of which can be confirmed at this time. Indeed, it is for this very
reason--the speculative and uncertain nature of the development which may or may not occur
within the Town Center area--that the City adopted Ordinance Nos. 1005 and 1006. These
Ordinances impose an interim moratorium on the processing of development applications
concerning real property located within the Town Center area pending the City's completion of a
review and analysis of various zoning and land use proposals concerning the Project Area.
Additionally, whatever final development proposals result from the planning process may, in
fact, require approval by the City's electorate.
In light of the entirely speculative nature of the types of development that may or may not
occur on properties within the Town Center area, the allegation that the "Town Center Project"
should have been included in the environmental assessment is entirely unsupportable. Indeed,
the California courts have long recognized that while CEQA cannot be avoided by intentionally
"piecemealing" large projects into smaller projects, the courts have uniformly held that "where
future development is unspecified and uncertain, no purpose can be served by requiring an EIR
to engage in sheer speculation as to future environmental consequences." (Lake County Energy
Council v. County of Lake (1977) 70 Cal. App. 3d 851, 854-55.) As the California Court of
Appeal stated in Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal. App. 4th 351,
372:
CEQA requires consideration of the potential environmental
effects of the project actually approved by the public agency, not
some hypothetical project . . . [W]here future development is
unspecified and uncertain, no purpose can be served by requiring
an EIR to engage in sheer speculation as to future environmental
consequences.
Here, because the actual development that may or may not occur as a "Town Center
Project" is entirely speculative, the allegation that the Negative Declaration prepared for the
Second Amendment should have included an analysis of the "Town Center Project" is
unsupportable. No "Town Center Project" or even portions of a "Town Center Project" have
been formulated for presentation for approval to either the Agency or the City Council, and
neither have the contours of what such a project may ultimately entail been identified at this
preliminary and speculative stage in the process.
Moreover, the allegation that a full blown EIR should have been completed is also
unsupportable. The allegations set forth in Mr. Hillison's letter do not contain any evidence,
much less substantial evidence, of potentially significant environmental impacts occurring by the
mere adoption of the Second Amendment. The California courts have categorically held that
unsupportable allegations of environmental impact made by an attorney do not constitute
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evidence of potentially significant environmental impact. (Pala Band of Mission Indians v.
County of San Diego (1998) 68 Cal. App. 4th 556, 578-79 [stating that an attorney's letter
containing "argument, speculation, unsubstantiated opinion or narrative . . . does not constitute
substantial evidence" of potentially significant environmental impact.].) Additionally, it is not
surprising that Mr. Hillison fails to identify potentially significant environmental impacts
because the California courts have held that legislative acts of a scope similar to the Second
Amendment do not produce physical changes to the environment and therefore are not, in many
instances, required to be subject to any CEQA review. (See Kaufman & Broad v. Morgan Hill
Unified School District (1992) 9 Cal. App. 4th 464, 474-75 [rejecting the assertion that the
establishment of a Community Facilities District required CEQA review because "no definite
plan ha[d] been formulated as to where or when to construct new facilities, and . . . [hence] there
[was] no plan to review."].)
Finally, once a project is defined and discretionary land use approvals are proposed, the
Agency or City, as appropriate, will conduct the requisite environmental analysis. Indeed, to the
extent a "Town Center Project" would require the City Council to submit revisions to land use
designations to the voters of Cypress, the City Council would have to undertake environmental
review prior to submitting such a ballot measure to the voters. (See Friends of Sierra Madre v.
City of Sierra Madre (2001) 2001 Cal. LEXIS 1563 (filed March 29, 2001).)
It bears repeating that the "project" for which the Negative Declaration was prepared was
the Second Amendment to Redevelopment Plan for the Los Alamitos Race Track and Golf
Course Project Area. The scope of the Second Amendment is limited to (i) extending the time
during which the Agency is authorized to use the power of eminent domain, (ii) conforming the
Land Use section of the Redevelopment Plan to provide that land uses within the Project Area
shall be in conformity with the City's General Plan, as it exists today or as amended in the future,
and (iii) making nonsubstantive textual changes to the Redevelopment Plan to update language
consistent with the CRL. In light of the scope of the "project," the Negative Declaration was the
appropriate level of CEQA review.
In addition, the "Response to Objection No. 1" set forth in Section I of this Exhibit "B"
(i.e., the response to Objection No. 1 with respect to the letter from Mr. Curtis on behalf of
Cottonwood Christian Center) is incorporated herein as though fully set forth and is made a part
of this Objection No. 1.
For the foregoing reasons Objection No. 1 is without merit and is hereby overruled.
Objection No. 2: Mr. Hillison also objects to the adoption of the Negative Declaration on
the basis that the environmental assessment did not include detailed information concerning the
project's potential impact on riparian habitats, wildlife corridors and native wildlife nurseries,
paleontological [sic] resources, human remains, and mineral resources.
Response to Objection No. 2:
This objection is based primarily on the assertion that the initial study "did not go far
enough." This objection is meritless. In the absence of any substantial evidence of potentially
significant environmental impact, California courts grant broad deference to an agency's
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determination made in an initial study. To this end, the California courts have held that
conclusions reached in an initial study need not be amplified unless there are valid, cognizable
reasons to dispute the conclusions contained therein. (See Leonoff v. Monterey County Board of
Supervisors (1990) 222 Cal. App. 3d 1337, 1347 ["[W]e are aware of no authority supporting
objectors' unstated premise that an initial study is inadequate unless it amounts to a full-blown
EIR based on expert studies of all potential environmental impacts. If this were true, the
Legislature would not have provided in CEQA for negative declarations."]; see also Gentry v.
City of Murrieta (1995) 36 Cal. App. 4th 1359, 1370 (emphasis in the original) ["The lack of
study is hardly evidence that there will be a significant impact."].)
For the foregoing reasons Objection No. 2 is without merit and is hereby overruled.
Objection No. 3: Mr. Hillison's asserts that the extension of the Agency's eminent domain
authority with respect to the Los Alamitos Race Track and Golf Course Project Area is a (i) a
necessary step in the chain leading to development of the Town Center Project, (ii) a
commitment of the Agency to the Town Center Project because without authority to condemn
the Agency will not be able to proceed with the Town Center Project, and (iii) therefore there is a
direct causal link between the extension of eminent domain authority and the development of the
Town Center Project.
Response to Objection No. 3:
The premise of Objection No. 3 is the same as the premise behind Objection No. 1 stated
in the letter from Mr. Curtis on behalf of Cottonwood Christian Center. Thus, as its response to
Objection No. 3 the Response to Objection No. 1 with respect to Mr. Curtis' letter, set forth
above, is incorporated herein as though fully set forth and is made a part of this Response to
Objection No. 3. For the foregoing reasons Objection No. 3 is without merit and is hereby
overruled.
Objection No.4: Mr. Hillison makes a number of interrelated assertions concerning the
extension of the Agency's eminent domain authority, blight, and environmental review. He
argues as follows: (i) to amend the Redevelopment Plan for the Los Alamitos Race Track and
Golf Course Redevelopment Project Area to extend the Agency's eminent domain authority for
twelve years requires the Agency to find that the Project Area is blighted; (ii) the Agency must
analyze how the proposed Town Center Project will impact blight in the Project Area; (iii)
because blight has a physical component CEQA is implicated and the in-depth blight analysis
required mandates an EIR; and(iv) blight cannot simply be assumed.
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Response to Objection No. 4:
With respect to item (i), as forth in the Response to Objection No. 5 with respect to Mr.
Curtis' letter on behalf of Cottonwood Christian Center, the Agency and City Council do not
need to analyze or reanalyze blight in the Project Area or make a new blight finding with respect
to the Second Amendment. The Response to Objection No. 5 with respect to Mr. Curtis' letter,
set forth above, is incorporated herein as though fully set forth and is made a part of this
Response to Objection No. 4.
With respect to item (ii), the Response to Objection No. 5 with respect to Mr. Curtis'
letter, set forth above, is incorporated herein as though fully set forth and is made a part of this
Response to Objection No. 4. Moreover, there is no requirement in the California Community
Redevelopment Law that the Agency or City Council determine in advance as part of a
redevelopment plan amendment how a yet-to-be-defined development will impact blight. The
impact of a particular development project on alleviating blighting conditions in the Project Area
need only be analyzed under the CRL when the Agency proposes to either dispose of real
property for development that the Agency acquired with tax increment funds (Health & Safety
Code § 33433, subd. (a)(2)(B)(iv)) or the Agency proposes to pay for the land for, and/or the cost
of installing, publicly owned improvements [unless the funds related to production of affordable
housing] (Health & Safety Code § 33445(a)(3).
With respect to item (iii), the Response to Objection No. 5 with respect to Mr. Curtis'
letter, set forth above, is incorporated herein as though fully set forth and is made a part of this
Response to Objection No. 4 with respect to the issues raised . Because the Second Amendment
is not the type of amendment that triggers any requirement in the CRL for reanalyzing blight or
making a new blight finding, there is no basis for the objection posed.
Lastly, with respect to item (iv), the finding and determination that the Project Area is
blighted, made when the Redevelopment Plan was originally adopted, is deemed final and
conclusive. (Health & Safety Code § 33368; see, also Sweetwater Valley Civic Assn. v. City of
National City (1976) 18 Ca1.3d 270.) There is no basis for the objection posed.
For the foregoing reasons Objection No. 4 is without merit and is hereby overruled.
Objection No. 5: Mr. Hillison asserts that if the Agency's authority to condemn property in
the Project Area is extended pursuant to the Second Amendment, "all future Town Center
analysis will assume that the Agency has the power of eminent domain for an additional twelve
years, to 2014."
Response to Objection No. 5:
Mr. Hillison appears to confuse the authority of an Agency to acquire property by
eminent domain set forth in a redevelopment plan and the exercise of that authority. Although a
redevelopment plan may provide the Agency with authority to exercise eminent domain powers
with respect to a redevelopment project area, a redevelopment agency's power to acquire
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property (by any particular means) is subject to the CRL and, further with respect to the exercise
of the Agency's eminent domain power, is subject to the California Eminent Domain Law.
(Code Civ. Proc. § 1230.010 et seq.)
Under the CRL and applicable law, prior to acquiring property for a redevelopment
project that is not property offered for sale on the open market, the Agency must offer the
property owner an opportunity to participate in the redevelopment project. This "owner
participation" process (which is further detailed in the Agency's adopted Owner Participation
Rules) enables a property owner to respond to a proposed Agency redevelopment project and
become involved in that redevelopment project. If the owner declines to participate, is
financially or otherwise incapable of meeting the requirements of participation, or proposes to
participate in a manner inconsistent with the proposed project, the Agency still cannot simply
proceed to acquire the property by eminent domain. Rather, the Agency, consistent with
California law, must first appraise the property and must offer to acquire the property for the
appraised price. The Agency cannot "lowball" the purchase price. If the property owner refuses
to sell the property and a mandated negotiation period does lead to a negotiated purchase, only
then can the Agency initiate eminent domain proceedings by consideration of adoption of a
"resolution of necessity" at a noticed hearing at which the property owner can appear and testify.
Even if the resolution of necessity is adopted, the eminent domain law then requires the filing of
an eminent domain complaint, which the property owner can answer and contest.
In short, to say or imply that adoption of the Second Amendment will automatically
result in the Agency's acquisition of property by eminent domain is simply incorrect. The
Second Amendment is merely the means to continue the Agency's currently available authority
so that it may, in the future, use the power of eminent domain to acquire real property (if it
follows the requirements of the CRL and the California Eminent Domain Law). In and of itself,
the Second Amendment is not an activity focused on or which authorizes the acquisition of
specific property or an action that amounts to an actual or constructive taking of any property.
The adoption of the Second Amendment is, to quote the California Supreme Court in Selby
Realty Co. v. City of San Buenaventura (1973) 10 Cal. 3d 100, 119, "several leagues short of a
firm declaration of an intent to condemn property." In Selby, the plaintiff asserted a cause of
action for inverse condemnation because of the adoption of a general plan. The court held:
If a governmental entity and its responsible officials were held
subject to a claim for inverse condemnation merely because 2.
parcel of land was designated for potential public use on one of
these several authorized plans, the process of community planning
would either grind to a halt, or deteriorate to publication of
vacuous generalizations regarding the future use of land. We
indulge in no hyperbole to suggest that if every landowner whose
property right might be affected at some vague and distant future
time by and of these legislatively permissible plans was entitled to
bring an action in declaratory relief to obtain a judicial declaration
as to the validity and potential effect of the plan upon his land, the
courts of this state would be inundated with futile litigation. It is
clear, under all the circumstances, that plaintiff has not stated a
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cause of action . . . for either declaratory relief or inverse
condemnation.
(Selby, supra, at 120-121.) The holding in Selby applies here. (See, also, Jordan v. City of
Santa Barbara (1996) 46 Cal. App. 4th 1245, 1257 [no inverse condemnation because risk of a
future event is not an "act" and thus no taking has occurred].)
The Second Amendment will provide the Agency with general authority to acquire
property by eminent domain for an additional twelve years, but exercise of that authority is
subject to the other requirements of California law cited above. As such, there is no basis for this
objection.
For the foregoing reasons Objection No. 5 is without merit and is hereby overruled.
For the reasons set forth above, the objections to the adoption of the Second Amendment
presented by Robert K. Hillison on behalf of the Los Alamitos Race Course are each and all
deemed without merit and are each and all hereby overruled.
III. LETTER FROM MAYOR ALICE B. JEMPSA, MAYOR OF THE CITY OF LOS
ALAMITOS, ON BEHALF OF THE CITY COUNCIL OF THE CITY OF LOS
ALAMITOS AND THE CITY OF LOS ALAMITOS
The City Council, received a one-page letter, addressed to Mike McGill, Mayor of the
City of Cypress, dated March 26, 2001, from Alice B. Jempsa, Mayor of the City of Los
Alamitos, 1391 Katella Avenue, Los Alamitos, CA 90720-5600, on behalf of the City Council of
the City of Los Alamitos and the City of Los Alamitos. A copy of Mayor Jempsa's letter is
included in Exhibit "A" to this Resolution.
After introductory statements, Mayor Jempsa specifies or alludes to two objections to the
adoption of the Second Amendment. Each objection and the response thereto is set forth below.
Objection No. 1: The City of Los Alamitos objects to the eminent domain extension "if it
will be used directly, or indirectly, to eliminate potential uses which could provide the residents
of Los Alamitos with genuine traffic mitigation on Katella."
Response to Objection No. 1:
The extension of the Agency's eminent domain authority is not related to any specific
development project but rather is part of an overall Agency effort to revise and update its three
redevelopment plans in order for the Agency to retain all of the redevelopment and property
acquisition tools currently existing in each of the redevelopment plans. The Response to
Objection No. 1 set forth with respect to Mr. Curtis' letter is incorporated herein as though fully
set forth and is made a part of this Response to Objection No. 1. Moreover, the extension of the
Agency's eminent domain authority as set forth in the Second Amendment will not preclude
CEQA review of specific development proposals if and as required by CEQA. Determination of
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traffic mitigation measures or the mitigation of any other impacts resulting from specific
development proposals will be the subject of environmental review at the appropriate time in
accordance with the requirements of CEQA. The Response to Objection No. 1 set forth with
respect to Mr. Hillison's letter is incorporated herein as though fully set forth and is made a part
of this Response to Objection No. 1.
For the foregoing reasons Objection No. 1 is without merit and is hereby overruled.
Objection No. 2: The City of Los Alamitos objects to any change in the Redevelopment
Plan or the extension of eminent domain that could modify or exclude uses that are currently
permitted and which would result in a reduction in traffic on Katella as compared to other
alternative developments.
Response to Objection No. 2:
Objection No. 2 has the same premise as Objection No. 1. The Response to Objection
No. 1 set forth above is incorporated herein as though fully set forth and is made a part of this
Response to Objection No. 2.
For the foregoing reasons Objection No. 2 is without merit and is hereby overruled.
For the reasons set forth above, the objections to the adoption of the Second Amendment
presented by Mayor Alice B. Jempsa on behalf of the City Council of the City of Los Alamitos
and the City of Los Alamitos are each and all deemed without merit and are each and all hereby
overruled.
[end of Exhibit "B"]
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