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REPORT NO. CCDC-08-32 CCDC-08-19

DATE ISSUED: October 15, 2008

ATTENTION: Honorable Chair and Members ofthe Redevelopment Agency Council President and City Council Docket of October 21, 2008

ORIGINATING DEPT.: Centre City Development Coiporation

SUBJECT:" 777 Beech - Centre City Development Pennit 2006-19, Map Waiver 349046, and Agreement Affecting Real Property to allow the construction ofa mixed-use project along the south side of Beech SlrecL between Seventh and Eighth avenues in the Downtown Coinmunity Plan Area/Cortez Redevelopment District ofthe Expansion Sub Area ofthe Centre City Redevelopment Project .- JOINT PUBLIC HEARING

COUNCIL DISTRICT:

REFERENCE: None

STAEF CONTACT: Brad Richter, Manager of Current Planning, 619-533-7115

REQUESTED ACTION: That the Redevelopment Agency ("Agency") approve the Agreement Affecting Real Property ("AARP"), and grant Design Review, and that the City Council ("Council") approve Centre City Development Permit 2006-19 and Map Waiver 349046, for the 777 Beech project.

STAFF RECOMMENDATION:

That the Agency:

· Adopt a Resolution certifying that the Agency has reviewed and considered information contained in the Final Environmental Impact Report and Secondary Study for the Project, and make certain findings and determinations regarding environmental impacts ofthe development.

401 B Street, Suite 400 I San Diego, CA 92101-4298 I Phone 619-235-2200 ( Fax 619-236-9148 I www.ccdc.com *.i Primed on recycled paper Honorable Chair and Members ofthe Redevelopment Agency Council President and City Council Docket of October 21, 2008 Page 2 001450 · Adopt a Resolution approving the AARP for Lot 2 providing for the approval and development ofthe 777 Beech project.

· Adopt a Resolution granting Design Review ofthe 777 Beech project.

And, that the Council:

· Adopt a Resolution certifying that the Council has reviewed and considered information contained in the Final Environmental Impact Report and Secondary Study for the Project, and make certain findings and determinations regarding environmental impacts ofthe development.; and,

· Adopt a Resolution approving Centre City Development Permit 2006-19 and Map Waiver 349046 for the 777 Beech project.

SUMMARY:

The applicants are proposing to construct a 12-13 story (average height 144 feet) mixed-use project on the 20,000 square-foot site along the south side of Beech Street between Seventh and Eighth avenues in the Cortez Hill neighborhood of Downtown. The project would contain 78 residential condominiums, approximately 14,746 square feet of retail/commercial space, and 144 parking spaces.

FISCAL CONSIDERATIONS: None.

PLANNING COMMISSION RECOMMENDATION: On July 24, 2008, the Planning Commission voted 5-0 to recommend approval ofthe project.

CENTRE CITY DEVELOPMENT CORPORATION RECOMMENDATION: On October 17, 2007, the Centre City Development Corporation ("Corporation") voted 4-0 to recommend approval of the project.

COMMUNITY PARTICIPATION AND PUBLIC OUTREACH EFFORTS: On October 10, 2007, the Centre City Advisory Committee (CCAC) voted 19-1 to recommend overall project approval to the Agency/Council. On November 14, 2007, the CCAC also voted 18-0 to recommend approval of Map Waiver 349046, as this element ofthe project had not been presented the month before. u0145i Honorable Chair and Members ofthe Redevelopment Agency Council President and City Council Docket of October 21, 2008 Page 3

On September 27, 2007, the Historical Resources Board (HRB) voted 5-1 to find that the current project design meets the U. S. Secretary ofthe Interior's Standards for new constmction adjacent to the historic El Cortez Hotel building. KEY STAKEHOLDERS

ROLE FIRM/CONTACT OWNERSHIP Property Owner/Developer: Sole Ownership: JSDl,LLCandJSD2,LLC Michael Zucchet; Peter Janopaul Peter Janopaul Architect: Privately Owned: Safdie Rabines Architects · Taal Safdie Taal Safdie, Ricardo Rabines

BACKGROUND

This proposed project advances the Visions and Goals ofthe Downtown Community Plan and the Objectives ofthe Centre City Redevelopment Project by:

· Adding to the range of downtown housing opportunities; and · Contributing to the vision of downtown as a major residential neighborhood.

The proposed project is located on the block bounded by Ash and Beech streets and 7th and 8th avenues which contains the historic El Cortez Hotel building. The El Cortez Hotel building was built in 1927 on the southern two-thirds ofthe block. Several two-story Victorian houses were located on separate lots on the northern one-third ofthe block. In the 1940's the entire block was consolidated into a single ownership and in the 1950's a swimming pool and a 8-9 story hotel annex building, called the "Caribbean Wing," was constmcted on the northern portion ofthe block. Numerous modifications and additions were also made to the El Cortez Hotel building, including additions of an exterior glass elevator and Sky Room. The Hotel closed in 1978 and the block changed ownerships over the subsequent years. Over this period, several redevelopment plans were discussed for this block and for the adjoining three blocks between 7th and 9th avenues, and Ash and Cedar streets, which for some time were under one ownership. These redevelopment plans proved infeasible for one reason or another.

In 1990 the City's HRB designated the El Cortez Hotel building Historic Site No. 269, and while the designation was applied to the entire block through its legal description, the designation resolution states "the area specifically designated being the exterior ofthe building." At the time of this designation, the Caribbean Wing remained on the northern portion of the block. In 2002 JU1452 ^ onorable Chair and Members ofthe Redevelopment Agency Council President and City Council Docket of October 21, 2008 Page 4 the El Cortez Hotel was listed on the National Register of Historic Places (after rehabilitation was completed and the Caribbean Wing removed).

The EI Cortez Hotel block was purchased by J. Peter Block Companies in 1997 and serious discussions commenced with CCDC regarding the redevelopment ofthe block, which was viewed as a catalyst for redevelopment and rejuvenation ofthe Cortez Hill neighborhood. An early version ofthe redevelopment plan ofthe block included a proposal for Pete's Yard, which consisted of single-story retail space along Beech Street. In 1998 the Redevelopment Agency and the owner entered into a Rehabilitation Loan Agreement which provided a $5.85 million rehabilitation loan. The subsequent rehabilitation ofthe block included the restoration ofthe El Cortez Hotel building to its period of significance, being the year of construction in 1927, including the removal of some ofthe signature modifications made in the 1950*8 including the Sky Room and exterior glass elevator. The demolition ofthe 8-9 story Caribbean Wing building on the north end ofthe block also occurred at this time.

The owner has discussed potential redevelopment plans for the north side ofthe block since his company purchased the block. Since then, the owner has proposed a varieiy of developiucni projects ranging from high-rise towers and mid-rise buildings (although the 2006 submittal for a 7-8 story building was the first official application to CCDC). In February 2003, the owner presented a high-rise scheme to the Projects Committee ofthe CCDC Board as well as the CCAC Pre-Design Subcommittee. Both review committees commented that the proposal was too tall for the block and requested that any proposed development be lower in scale.

In 2004 the owner processed a Tentative Map with the City for the conversion ofthe El Cortez Hotel building into condominiums and the consolidation ofthe existmg 12 lots on the block into two lots: Parcel 1, containing the El Cortez Hotel; and Parcel 2, containing an underground garage, the swimming pool, and an open deck area. The first condominiums were sold in late 2004.

In August 2005, the owner returned to the CCAC Pre-Design Subcommittee and presented preliminary plans fora 10-11 story building with 131 residential condominiums and 8,500 square feet of commercial space, which was well attended by the public (mostly, ifnot all, in opposition to the preliminary proposal). The Subcommittee members expressed concems about the project's proximity (approximately 31 feet) to the El Cortez Hotel building, the building's interface with the surrounding sidewalks, and the building's unit mix (desire for larger units).

Attached to this report are the following reference materials that give additional background information:

1. Chronology ofthe El Cortez Hotel block. 2. Issues raised at public meetings or in previous correspondence to CCDC. U01453 · Honorable Chair and Members ofthe Redevelopment Agency Council President and City Council Docket of October 21, 2008 Page 5

The 777 Beech project was originally submitted on January 20, 2006 and deemed complete under the 1992 Centre City Commimity Plan and Planned District Ordinance.(PDO), as the new Downtown Community Plan arid PDO were not yet adopted (February and March 2006, respectively). Originally the application consisted ofa 7-8 story building (approximate height of. the first stepback ofthe adjacent El Cortez Hotel building) containing 84 residential condominiums and street-level retail uses, and exhibiting a contemporary architectural style. After reviews by the HRB's Design Assistance Subcommittee (DAS), the CCDC Board's Real Estate Committee, and the CCAC Pre-Design Subcommittee, the project design went through numerous changes including variations on height, massing, and architectural style (traditional vs. modem). The Real Estate Committee encouraged the applicant to explore increased density as the original proposal contained a Floor Area Ratio (FAR) of 5.25, less than the 8-10 FAR permitted under the former PDO regulations, as well as a more modem architectural style.

Ultimately, the project was redesigned as modem building reaching up to 18-19 stories, the approximate height ofthe El Cortez Hotel building. However, the HRB found that this altemative did not meet the Secretary of Interior's Standards for new construction adiacent to the historic El Cortez Hotel building, which would require a Site Development Permit and the preparation ofa Supplemental EIR. As a result, the applicant once again revised the plans, reducing the height and submitting an amended application that is designed to meet, and is being processed under, the 2006 Downtown Community Plan and Centre City PDO.

Typically the project would require a Centre City Development Permit issued by CCDC, Design Review approval by the CCDC Board, and a Process 3 Map Waiver. However, due to the existing AARP discussed later in the report, the project approvals are elevated up to the City Council/Redevelopment Agency level. The AARP therefore provides for the fullest disclosure and review process for the project. This is appropriate given the historical significance ofthe El Cortez Hotel building which has served as an icon on Cortez Hill since its constmction. Its unique orientation on the block, its long history for civic events, and the views from surrounding neighborhoods and from approaching aircraft warrant special consideration above other historic structures located within the densely developed Core downtown. The adjacency and size of new construction on the block must be evaluated given this unique context, and has been considered carefully by the various review bodies.

There have been approximately 25 public meetings before the HRB, CCAC, CCDC Board, Planning Commission, and each oftheir various applicable subcommittees, on variations ofthis project over the past two years, starting in July 2006 and culminating in the CCDC Board recommendation for approval in October 2007 and Planning Commission recommendation for approval in June 2008. Most meetings have been well attended by the public, including homeowners within the El Cortez Hotel building and the surrounding neighborhood. Many have 001454 Honorable Chair and Members ofthe Redevelopment Agency Council President and City Council Docket of October 21, 2008 Page 6

repeatedly spoken in opposition to the project, some arguing for no development on the site while others arguing for only low-rise, low-density development if any were to occur.

DISCUSSION

The project is located on a 20,000 square-foot site along the south side of Beech Street between 7th and 8th avenues. The surrounding land uses include the 15-story El Cortez Hotel building to the south; the 4-story Quality Suites motel to the west; a 9-story condominium building to the northwest; the 4-5 story Heritage apartment complexes to the north and east; and the 20-story Discovery condominium project to the northeast. Other recent developments in the neighborhood include the recently constmcted 20-story Cortez Blu tower at the southeast comer of 8th Avenue and Ash Street; the 20-story Aria condominium tower at the northeast comer of 9 Avenue and Ash Street; and, the 6-story Aloft at Cortez Hill condominium project along the south side of Date Avenue between 8th and 9th avenues.

The 777 Beech project includes 78 residential condominiums, approximately 14,746 square feet of retail/commercial space; and, 144 parking spaces in a 12-13 story buiiding (average height 144 feet tall) designed with a modem architectural vocabulary. Fifty-three ofthe parking spaces will be reserved for use by the adjacent El Cortez owners per an existing Parking Agreement. The project is designed to fully comply with 2006 Centre City PDO and is being processed under this ordinance (all previous designs were being reviewed in compliance with the 1992 PDO).

Aereement Affecting Real Propertv (AARP)

As part ofthe approval ofthe 1998 Rehabilitation Loan Agreement, an AARP was recorded on the block which specified the permitted land uses, including 85 residential apartment units, lobby space, the Don Room special events space, 4,000 square feet of neighborhood serving commercia] space, and 104 parking spaces. AARPs are typically recorded on properties when the Agency enters into such loan agreements, and the agreements typically "sunset" at the end ofthe Redevelopment Plan (in this case, 2025).

One ofthe covenants ofthe AAJIP is that, "Owner, its successors and assigns, shall use the Property only for the development permitted and the uses specified in the Loan Agreement and this Agreement, namely, 85 residential apartment units, lobby space, the Don Room special events space, 4,000 square feet of neighborhood-serving commercial space, a total of 104 parking spaces in the parking garages beneath the El Cortez Hotel building and the former Annex building and in the tower basement, with landscaping and amenities, all in accordance with plans meeting the Secretary of Interior's Standards for National Register properties." It also states that the owner shall "obtain approval in writing from Agency prior to any material alteration or modification of such improvements, such approval not to be unreasonably withheld or delayed." These covenants 001455 Honorable Chair and Members ofthe Redevelopment Agency Council President and City Council Docket of October 21, 2008 Page 7

and many others ofthe AARP remain in effect until "June 30, 2025, which is the date on which the effectiveness ofthe Redevelopment Plan expires." Although the AARP states in Paragraph 5 that the covenants and restrictions "shall remain in effect until June 30, 2025," the AARP does not say that any further development is prohibited until that time.

It should be noted that in 2004 the Agency agreed to amend the AARP to replace the term "residential apartment units" with the term "residential units," thereby allowing the sale ofthe units as condominiums. The Agency's loan was subsequently repaid in full, the Amendment to the AARP was recorded, and the residential units were converted to condominiums and sold.

, However, because ofthe specific use provisions ofthe AARP, a new covenant agreement between the Agency and Lot 2 owner is required to allow for the approval ofthe proposed project. Agency Special Counsel has drafted such a new AARP which is attached to this report, providing for the development of Lot 2 with the 777 Beech project. The agreement contains appropriate indemnifications and hold harmless provisions in favor of CCDC, the Agency and the City regarding this matter, as well as pending and any future related litigation. The Council may approve the 777 Beech project if the Agency approves, and enters into, this Lot 2 agreement.

Architectural Design

The proposed building is comprised of three main elements, including a 5-story mass along 7th Avenue; a 7-story mass along Beech Street; and, a central curving. 12-story tower within the Beech Street mass. The building is characterized at the street level by a series of different uses including - entrances to the residential lobby and up to six commercial spaces. Given the challenging slope conditions ofthe site, the architects have successfully activated and provided an attractive ground level experience for pedestrians . The building provides a stepped mass, exhibiting a central tower element along Beech Street which is flanked by a 5-story element along 7 A venue and a 7-story element along 8th Avenue. The tower element exhibits large projecting balconies on Floors 9-12, which extend out 24 feet from the tower. The project also proposes a pool on the sixth level along 7th Avenue, and a common tenace on the eighth level adjacent to 8 Avenue. The building materials consist of painted exposed concrete floor slabs infilled with a metal storefront system of a lightly tinted glass; glass balcony guardrails, and metal fins.

The proposed building was designed to avoid unnecessary visual impacts to the historic El Cortez Hotel building, including the provision ofa courtyard that extends from 7t Avenue to 8th Avenue that separates the two stmctures. The resulting dimensions ofthe proposed building are 40 feet from the El Cortez Hotel tower and 31 feet from the single story "Don Room." The height of the proposed building was specifically kept at a height equivalent to the "shoulders" ofthe El Cortez Hotel building, so that it would not compete with the iconic historic building and would preserve views ofthe upper floors and historic sign from the Laurel Street bridge entering Balboa Park. HonorableHonorabli Chair and Members ofthe Redevelopment Agency Council President and City Council Docket of October 21, 2008 Page 8

Additionally, the modem architecture provides a contrast to, rather than mimics, the architecture ofthe historic building.

The architectural massing and treatments, materials, and colors provide for an attractive, unique building that will contribute to the downtown environment. In addition, the modem architecture, height and mass ofthe project provide an interesting contrast to, without detracting from, the adjacent historic El Cortez Hotel building and have been well received by strong majorities ofthe various review bodies to date.

Map Waiver

In order to sell the residential units, as well as the commercial spaces, to individual owners, a Map Waiver is required ofthe development. The Map Waiver provides for up to 78 residential condominiums and six commercial condominiums. Because the Map Waiver does not change the project except for the ability to sell individual ownerships ofthe residential and commercial units, it is recommended that it be approved with the development.

The City's Development Services Department (DSD) has processed the Map Waiver application, concunently with CCDC's processing ofthe development permit, pursuant to Section 125.0122 of the Municipal Code ofthe City of San Diego and Subdivision Map Act Section 66428, and has recommended that the Map Waiver be approved subject to the list of conditions included in the Draft City Council Resolution attached to this report.

Consistencv with Adopted Plans

As mentioned earlier, the final revised project is being reviewed under the 2006 Downtown Coinmunity Plan and PDO. The project complies with all ofthe PDO development regulations, including balconies on at least 50% ofthe units, common indoor and outdoor open space (including pet open space), and increased parking and guest parking requirements. While the Community Plan acknowledges that the Cortez Hill neighborhood would experience little change due to the large amount of redevelopment activity over the past nine years, it anticipates mid-sized buildings with more slender profiles than in the Core area. Also, the 2006 Community Plan and PDO kept in place the long-standing Base FAR limit of 8.0.

The 1993 Cortez Focus Plan is the adopted neighborhood plan for this area, but is now somewhat outdated as it served as the blueprint for redevelopment ofthe hill and lower Cortez area before significant redevelopment ofthe hill occuned, beginning in the late 1990's. At the time of its adoption, however, the Plan expected the development of low- to mid-rise infill developments on Cortez Hill. The El Cortez Hotel block was anticipated to be redeveloped with the rehabilitation 001457 Honorable Chair and Members ofthe Redevelopment Agency Council President and City Council Docket of October 21, 2008 Page 9

ofthe historic building to Jts original appearance and, also, the conversion/adaptive reuse ofthe fonner 8-9 story Caribbean Wing for housing.

Housing Impact - The Downtown Community Plan calls for the provision of a range of housing opportunities suitable for urban environments and provides for a Maximum Floor Area Ratio (FAR) on the site of 8.0, with a Minimum FAR of 5.0 (the Plan does not provide density restrictions in dwelling units/acre), with which the project's proposed 6.6 FAR complies. There are no dwelling units on the site cunently, and the project will comply with the Affordable Inclusionary Housing Ordinance by paying the allowable in-lieu fee.

PROJECT DESCRIPTION

The following is a summary ofthe project: Site Area 20,000 sq. ft. (one-third block) Maximum Floor Area Ratio (FAR) Permitted 8.0 Minimum FAB- Required 5.0 Proposed 6.6 FAR Bonuses Proposed None Stories / Height 5-12/13/58-138/150 feet Amount of Retail/Commercial Space 14,746 sq. ft. Amount of Office Space N/A Type of Housing Condominiums Total Number of Units / Total Residential Sq. Ft. 78/117,336 sq.ft. Types of Units (sizes) 8 Studios (571 sq.ft.) 6 1-br (636 sq.ft.) 56 2-br (1,001-1,389 sq.ft.) 8 3-br (1,664-2,445 sq.ft.) Proiected Sale Prices Market Rate Number of Units Demolished 0 Inclusionary Housing Ordinance Compliance/ Payment of In-Lieu Fee Number of Affordable Units 0 Parking Required 81 for new building (1.0 spaces/unit plus guest spaces at 1/30 units)

Proposed 88 for new building (1.1 space/unit) 3 guest spaces 53 replacement for El Cortez 144 total Assessor's Parcel Nos. 534-032-03 001453 Honorable Chair and Members ofthe Redevelopment Agency Council President and City Council Docket of October 21, 2008 Page 10

Environmental Impact - The Centre City Redevelopment Project, in which this project is located, is covered by the 2006 Final Environmental Impact Report (FEIR), which is a program EIR under the Califomia Environmental Quality Act (CEQA). Under tiie FEIR, an Environmental Secondary Study is prepared for all developments in the Centre City area in order to evaluate the project's compliance with the Commimity Plan and PDO and, therefore, the findings and conclusions ofthe FEIR. The project has been found to be in compliance with those planning and environmental documents; therefore, no further environmental review is required for the project under CEQA. A copy ofthe Environmental Secondary Study is attached for the Council's reference.

CONCLUSION

The project is consistent with the Downtown Coinmunity Plan and Centre City PDO, and has gone through a long review process that has resulted in many different iterations, with the cunent design being supported by the CCAC, CCDC,B oard, and Planning Commission. In addition, it has been found to be consistent with the Secretary of Interior Standards for new construction adjacent to the historic El Cortez Hotel building by the HRB. Therefore, staff recommends that the Redevelopment Agency approve the AARP and grant Design Review approval, and that the Council approve Centre City Development Permit 2006-19 and Map Waiver 349046, for the 777 Beech project.

Respectfully submitted, Concuned by:

Brad Richter Barbara A. Kaiser Manager of Cunent Planning Vice President - Real Estate Operations

Attachments: A - Background Information including Chronology ofthe El Cortez Hotel Block and Issues Raised at Public Meetings or in Correspondence B - Project Basic Concept Schematic Drawings C - Map Waiver 349046 Drawings D - Agreement Affecting Real Property E - Environmental Secondary Study F - Conespondence Received by the Public G - Planning Commission Resolution 4437-PC H - Draft Centre City Development Pennit 2006-19 I - Draft Conditions of Approval for Map Waiver 349046 wn ·n'nin uw? 30iJJ0 S.WIO iilJ S:VRichter\DEVREV\PROJECTS\777 BeechVAgencyCouncilReportl02108.doc q^ .71 MJ Q I p n OQ a3AI303H 001459 ATTACHMENT A

CHRONOLOGY OF THE EL CORTEZ HOTEL BLOCK

1926 El Cortez Hotel begins construction 1927 El Cortez Hotel opens on southern 2/3 of block 1937 El Cortez sign installed 1940 Addition of Sky Room 1940s Block comes under one ownership 1952 Addition of swimming pool 1954 Addition of Caribbean Wing 1956 Addition of exterior glass elevator 1978 El Cortez Hotel closes 1990 El Cortez Hotel building designated Local Historic Site #269 1997 Block bought by J. Peter Block Companies 1998 Rehabilitation Loan Agreement approved 1999 Rehabilitation Loan and AARP recorded on property 1999 Demolition/Rehabilitation work commences 2000 Rehabilitation compieted 2002 Mills Act Agreement recorded in violation of City Council Policy 700-46 2003 February - Owner presents high-rise tower proposa] on north end of block before CCDC Projects Committee and CCAC Pre-Design Subcommittee 2004 Rehabilitation Loan repaid Amendment to AARP permitting condo conversion Tentative Map for Condominiums approved, establishes Parcel 1 and 2 Notice of Non-Renewal of Mills Act Agreement by the City of San Diego 2005 August - Owner presents proposed 10-11 story project on Parcel 2 to CCAC Pre-Design Subcommittee 2006 January - Owner files fonnal Centre City Development Permit application to CCDC for 7-8 story building

THIS REPORT IS AVAILABLE FOR VIEWING IN THE OFFICE OF THE CtTY CLERK. 2ND FLOOR IN THE SPECIAL REDEVELOPMENT BINDER 001461

ATTACHMENT B

BASIC CONCEPT SCHEMATIC DRAWINGS

THIS REPORT IS AVAILABLE FOR VIEWING IN THE OFFICE OF THE CITY CLERK. 2ND FLOOR IN THE SPECIAL REDEVELOPMENT BINDER oul4o3

ATTACHMENT C

MAP WAIVER 349046 DRAWINGS

THIS REPORT IS AVAILABLE FOR VIEWING IN THE OFFICE OF THE CITY CLERK. 2ND FLOOR IN THE SPECIAL REDEVELOPMENT BINDER O01465

ATTACHMENT D

AGREEMENT AFFECTING REAL PROPERTY

THIS REPORT IS AVAILABLE FOR VIEWING IN THE OFFICE OF THE CITY CLERK. 2ND FLOOR IN THE SPECIAL REDEVELOPMENT BINDER O01467

ATTACHMENT E

ENVIRONMENTAL SECONDARY STUDY

THIS REPORT IS AVAILABLE FOR VIEWING IN THE OFFICE OF THE CITY CLERK. 2ND FLOOR IN THE SPECIAL REDEVELOPMENT BINDER 001469

ATTACHMENT F

CORRESPONDENCE RECEIVED BY THE PUBLIC

THIS REPORT IS AVAILABLE FOR VIEWING IN THE OFFICE OF THE CITY CLERK. 2ND FLOOR IN THE SPECIAL REDEVELOPMENT BINDER O01471.

ATTACHMENT G

PLANNING COMMISSION RESOLUTION 4437-PC

THIS REPORT IS AVAILABLE FOR VIEWING IN THE OFFICE OF THE CITY CLERK. 2ND FLOOR IN THE SPECIAL REDEVELOPMENT BINDER 001473

ATTACHMENT H

DRAFT CENTRE CITY DEVELOPMENT PERMIT NO. 2006-19

THIS REPORT IS AVAILABLE FOR VIEWING IN THE OFFICE OF THE CITY CLERK. 2NP FLOOR IN THE SPECIAL REDEVELOPMENT BINDER 0014 7 5

ATTACHMENT I

DRAFT CONDITIONS OF APPROVAL FOR MAP WAIVER 349046

THIS REPORT IS AVAILABLE FOR VIEWING IN THE OFFICE OF THE CITY CLERK. 2NU FLOOR IN THE SPECIAL REDEVELOPMENT BINDER LttfctCentreCity LLCLL. Development LLLLL Corporation O01477 October 13, 2008 NOTICE OF JOINT CITY COUNCIL / REDEVELOPMENT AGENCY PUBLIC HEARING

As a nearby property owner, tenant, or person who has requested notice, you should know that the City of San Diego City Council and Redevelopment Agency will hold a joint public, hearing to consider the following project located within the Cortez District of the Downtown Community Plan Area: 777 BEECH: a mixed-use project consisting of 78 residential condominium units; 15,261 square feet of retail/commercial space; and, 144 parking spaces (in three underground levels; 53 spaces of which are allocated for residents ofthe adjacent existing El Cortez building) in a 12-13 story building (138-150 feet tall) on the 20,000 square foot site located along the south side of Beech Street between 7th and 8th avenues (directly .north ofthe historic El Cortez building).

PROJECT NAME: 777 Beech PROJECT FILE #: Centre City Site Development Permit 2006-19 / Map Waiver 349046 PROJECT APPLICANT: JSD1,LLCand JSD2, LLC COMMUNITY PLAN AREA: Downtown COUNCIL DISTRICT: District 2

PROJECT MANAGER: Brad Richter, CCDC Manager of Current Planning MAILING ADDRESS: 401 "B" Street, Suite 400, San Diego, CA 92101 PHONE NUMBER: (619)533-7115 E-MAIL ADDRESS: [email protected]

DATE OF HEARING: Tuesday, October 28, 2008 TIME OF HEARING: 2:00 p.m. (please note that this is the time that the meeting starts, but there is no fixed time for this specific hearing). LOCATION OF HEARING: City Councii Chambers, 12th Floor, City Administration Building, 202 C Street, San Diego, CA 92101

401 B Street, Suite 400 I San Diego. CA 92101-4298 I Phone 619-235-2200 I Fax 619-236-9148 I www.ccdc.com tJ Printed on recycled paper 001478 Notice of Joint City Council/Redevelopment Agency Heanng 777 Beech Page Two

The City Council will consider the following applications for the project;

Centre Citv Development Permit 2006-19 as provided for in the Centre City Planned District Ordinance.

Map Waiver No. 349046 which provides for the project to contain 78 residential and 6 commercial condominium spaces.

The Redevelopment Agency will consider an Agreement Affecting Real Property (AARP) for the property which provides for the development contemplated in Centre City Development Permit 2006-19 and Map Waiver No. 349046.

The public is invited to attend this joint public hearing. Copies ofthe Centre City Development Permit application file, Map Waiver exhibit for the project, and Draft AARP are available for public review in the offices of CCDC located at 401 "B" Street, Suite 400, San Diego, CA 92101. Copies ofthe Map Waiver application file are available for public review in the Development Services Departrnent, 1222 First Avenue, San Diego, CA,. 92101.

If you have any questions after reviewing this notice, you can call the Project Manager listed above.

If you wish to challenge the City's action on the above proceedings in court, you may be limited to addressing only those issues you or someone else have raised at the public hearing described in this notice, or written correspondence to CCDC or the City at or before the public hearing. This information will be made available in alternative formats upon request. To request an agenda in alternative format or to request a sign language or oral interpreter for the meeting, call the Disability Services Program Coordinator at 236-5679, at least five working days prior to the meeting to ensure availability. Assistive Listening Devices (ALD's) are available for the meeting upon request.

S:\RichtertDEVRE\APR0JECTS\777 BeecMNOPHCCRAI 02808.rtf

V3 '03310 UTS 33IJJD mm m 91:2IHd 91 130 80 a3AI303H ' " 1 / n Q DOCKET SUPPORTING INFORMATION DATE: U U 1 4 ( o CITY OF SAN DIEGO EQUAL OPPORTUNITY CONTRACTING PROGRAM EVALUATION October 6, 2008

SUBJECT: 777 Beech - Centre City Development Pennit 2006-19, Map Waiver 349046, and Agreement Affecting Real Property to allow the construction of a missed-use project along the south side of Beech Street between Seventh and Eight avenues in the Downtown Community Plan Area/Cortez Redevelopment District ofthe Expansion Sub Area ofthe Centre City Redevelopment Project.

GENERAL CONTRACT INFORMATION

Recommended Consultant: Not Applicable Amount ofthis Action: Not Applicable Funding Source: Not Applicable

SUBCONSULTANT PARTICIPATION

There is no subconsultant activity associated with this action.

EOUAL EMPLOYMENT OPPORTUNITY COMPLIANCE

Equal Opportunity: Required

As a request to approve a Centre City Development Pennit and a Map Waiver, this agreement is not subject to the City's Equal Opportunity Contracting (San Diego Ordinance No. 18173, Section 22.2701 through 22.2702) and Non-Discrimination in Contracting Ordinance (San Diego Municipal Code Sections 22.3501 through 22.3517)

ADDITIONAL COMMENTS

This action is to request Council Approval ofthe Center City Development Permit 2006-19 and Map Waiver 349046 for the 777 Beech project.

JLR

S:\EOCP\All EOC DocsM 472B\Consultant\777 Beech - Centre City Permit - 100808,doc 1. CERTIFICATE NUMBER 001481 REQUEST FOR COUNCIL ACTION (for auditor'^e^nly) 337 CITY OF SAN DIEGO 10/28 TO: 2. FROM: (ORIGINATING DEPARTMENT) 3. DATE CITY ATTORNEY CENTRE CITY DEVELOPMENT CORPORATION September 29, 2008

4. SUBJECT: 777 Beech - Centre City Development Permit 2006-19, Map Waiver 349046, and Agreement Affecting Real Property to allow the construction of a mixed-use project along the south side of Beech Street between Seventh and Eighth avenues in the Downtown Community Plan Area/Cortez Redevelopment District ofthe Expansion Sub Area ofthe Centre City Redevelopment Project - JOINT PUBLIC HEARING (Companion to Redevelopment Agency) 5. Primary Contact: (Name, Phone & Mail Sta.) 6. Secondary Contact (Name. Phone & Mail Sta.) 7. Check BOX if REPORT TO COUNCIL IS ATTACHED X Brad Richter, Manager of Current Plannmg, (619) 533-7115, MS 51D 8. COMPLETE FOR ACCOUNTING PURPOSES FUND 9. ADDITIONAL INFORMATION/ESTIMATED COST: DEPT. ORGANIZATION Fiscal Impact: OBJECT ACCOUNT JOB ORDER C.I.P. NUMBER AMOUNT 10. ROUTING AND APPROVALS ROUTE APPROVING DATE ROUTE DATE m AUTHORITV APPROVING SIGNATURE SIGNED m SIGNED Dnr 1,nr4 A v. -W7-7 Real Estate Operations 341^ Hn CCDC Vice Frank Alcssi EAS Presidcnt/CFO fr m.^- H 10

Environmental Revioa"T^ HEfcan Coker n Cily Attorney §2^ ii Asst.D ir., CPCI, Janice L. Weinrick Originating Project Manager Redevelopment Department 12 mm 2/J2tr~ M'o* Deputy Chief William Anderson Of* Operating Officer, Executive Director of l 13 City Planning and H Development /3u^ci_jr-i{Asv\ /·3"' Qh 14

Chief Operating Officer /Ofi*/d 9 15 Docket Coord. Council Liaison

COUNCIL D Spob D CONSENT ^ADOPTION PRESIDENT \s\ A ^ 0 REFER TO COUNCIL DATE: ·qfeg/qj'

II.PREPARATIONOF: X RESOLUTION(S) D .ORDINANCE(S) D AGREEMENT(S) D DEED(S)

DOCKET OF: October 21. 2008 1 la. STAFF RECOMMENDATIONS: That the Ci^y Council ("Council"): (J 014 o u · Adopt a Resolution certifying that the Council has reviewed and considered information contained in the Final Environmental Impact Report and Secondary Study for the Project, and make certain findings and determinations regarding environmental impacts ofthe development; and · Adopt a Resolution approving Centre City Development Pennit 2006-19 and Map Waiver 349046 for the 777 Beech project. „_^^^_ 12. SPECIAL CONDITIONS (REFER TO A.R. 3.20 FOR INFORMATION ON COMPLETING THIS SECTION.) COUNCIL DISTRICTfS): 2 Communitv Planning AreaCs): N/A Environmental Impact: The Centre City Redevelopment Project, in which this project is located, is covered by the 2006 Final Environmental Impact Report (FEIR), which is a program Environmental Impact Report under the Califomia Environmental Quality Act (CEQA). Under the FEIR, an Environmental Secondary Study is prepared for all developments in the Centre City area in order to evaluate the project's compliance with the Community Plan and Planned District Ordinance and, therefore, the findings and conclusions ofthe FEIR. The project has been found to be in compliance with those planning and environmental documents; therefore, no further environmental review is required for the project under CEQA. A copy ofthe Environmental Secondary Study is attached for the City Council's reference. HOUSING IMPACT: The Downtown Community Plan calls for the provision of a range of housing opportunities suitable for urban environments and provides for a Maximum Floor Area Ratio (FAR) on the site of 8.0, with a Minimum FAR of 5.0 (the Plan does not provide density restrictions in dwelling units/acre), with which the project's proposed 6.6 FAR complies. There are no dwelling units on the site cunently, and the project will comply with the Affordable Inc-lusionarv Housing Ordinance bv navino the allowable in-lieu fee. Other Issues: N/A City Clerk Instruction: Please send copies ofthe resolution(s) to Lori Young, MS 51D and Project Manager, MS 51D

RA-14TI (REV. I«6)

n '03310 NVS 33IJJ0 SmiO Ailj 9*|:ZIHd 31 130 80 C13A!303y 337

EXECUTIVE SUMMARY SHEET

REPORTNO. CCDC-08-32 CCDC-08-19

DATE REPORT ISSUED: October 22, 2008 ATTENTION: Honorable Chair and Members ofthe Redevelopment Agency Council President and City Council Docket of October 28, 2008 ORIGINATING DEPT.:. Centre City Development Corporation SUBJECT: 777 Beech - Centre City Development Permit 2006-19, Map Waiver 349046, and Agreement Affecting Real Property to allow the construction of a mixed-use project along the south side of Beech Street between Seventh and Eighth avenues in the Downtown Community Plan Area/Cortez Redevelopment District ofthe Expansion Sub Area ofthe Centre City Redevelopment Project - JOINT PUBLIC HEARING

COUNCIL DISTRICT:

STAFF CONTACT: Brad Richter, Manager of Cunent Planning, 619-533-7115

STAFF RECOMMENDATION: That the Agency adopt a Resolution certifying that the Agency has reviewed and considered information contained in the Final Environmental Impact Report and Secondary Study for the Project, and make certain findings and determinations regarding environmental impacts ofthe development; adopt a Resolution approving the AARP for Lot 2 providing for the approval and development ofthe 777 Beech project; and adopt a Resolution granting Design Review ofthe 777 Beech project.

And, that the Council adopt a Resolution certifying that the Council has reviewed and considered information contained in the Final Environmental Impact Repoit and Secondary Study for the Project, and make certain findings and determinations regarding environmental impacts ofthe development.; and adopt a Resolution approving Centre City Development Permit 2006-19 and Map Waiver 349046 for the 777 Beech project.

EXECUTIVE SUMMARY: The applicants are proposing to construct a 12-13 story (average height 144 feet) mixed-use project on the 20,000 square-foot site along the south side of Beech Street between Seventh and Eighth avenues in the Cortez Hill neighborhood of Downtown. The project would contain 78 residential condominiums, approximately 14,746 square feet of retail/commercial space, and 144 paridng spaces. Honorable Chair and Members ofthe Redevelopment Agency Council President and City Council Docket of October 28, 2008 Page 2 ("^

FISCAL CONSIDERATIONS: None.

CENTRE CITY DEVELOPMENT CORPORATION RECOMMENDATION: On October 17, 2007, the Centre City Development Corporation ("Corporation") voted 4-0 to recommend approval ofthe project.

On September 27, 2007, the Historical Resources Board (HRB) voted 5-1 to find that the cunent project design meets the U. S. Secretary ofthe Interior's Standards for new construction adjacent to the historic El Cortez Hotel building.

KEY STAKEHOLDERS AND PROJECT IMPACTS: The key stakeholders ofthe project are Peter Janopaul of JSDI, LLC and JSD2, LLC, and Taal Safdie of Safdie Rabines Architects.

Respectfully submitted, Concuned by;

Brad Richter Barbara A. Kaiser Manager of Cunent Planning Vice President - Real Estate Operations

S;\Richtcr\DEVREV\PROJECTS\777 Beech\Executive Summary_FINAL_102808.doc - - /o'- (R-2008-330)

RESOLUTION NUMBER R-_

DATE OF FINAL PASSAGE

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN DIEGO APPROVING CENTRE CITY DEVELOPMENT PERMIT 2006-19 AND MAP WAIVER 349046 FOR THE 777 BEECH PROJECT LOCATED WITHIN THE DOWNTOWN COMMUNITY PLAN AREA AND THE CORTEZ DISTRICT OF THE EXPANSION SUB AREA OF THE CENTRE CITY REDEVELOPMENT PROJECT.

WHEREAS, pursuant to the Centre City Planned District Ordinance JSDI, LLC and

JSD2, LLC, Applicant/Subdivider, and BURKETT AND WONG, Engineer, submitted

applications 1) with the Centre City Development Corporation (CCDC) for Centre City

j-yCvciOpmcni i crmit ^-wu-1 ? i.or a mixcu use project consisting oi / o resiuentiai units anu

approximately 14,746 square feet of commercial space and 2) with the City of San Diego for

Map Waiver No. 349046 to waive the requirement for a Tentative Map and a Final Map to

construct 78 residential and six (6) commercial condominiuni units. The project site is located at

777 Beech Street, between 7th Avenue and 8th Avenue, in the Centre City Planned District and is

legally described as Parcel 2 of Map 14860; and

WHEREAS, the Map proposes the subdivision ofa 0.450-acre site into 78 residential

and six (6) commercial condominium units; and

WHEREAS, the project is consistent with the Downtown Community Plan and Centre

City Planned District Ordinance; and,

WHEREAS, the project complies with the requirements of a preliminary soils and/or

geological reconnaissance report pursuant to the Subdivision Map Act and Section 144.0220 of

the Municipal Code ofthe City of San Diego; and

-PAGE 1 OF 4- (R-2008-330) 00148G

WHEREAS, the subdivision is a condominium project as defmed in Section 1350 et seq.

ofthe Civil Code ofthe State ofCalifomia and filed pursuant to the Subdivision Map Act. The

total number of condominium units is 78 residential and six (6) commercial; and

WHEREAS, on July 24, 2008, the ofthe City of San Diego Planning Commission

considered Centre City Development Pennit 2006-19 and Map Waiver No. 349046, and pursuant

to the Centre City Planned District Ordinance, Section 125.0122 ofthe Municipal Code ofthe

City of San Diego, and Subdivision Map Act Section 66428, received for its consideration

written and oral presentations, evidence having been submitted, and heard testimony from all

interested parties at the public hearing, and the having fully considered the matter and being fully

advised concerning the same;

WHEREAS, the Planning Commission voted 5-0 to recommend to the City Council

approval of Centre City Development Permit 2006-19 and Map Waiver 349046;

NOW, THEREFORE,

BE IT RESOLVED by the City Council ofthe City of San Diego, that it adopts the

following findings with respect to Centre City Development Permit 2006-19 and Map Waiver

No. 349046:

1. The proposed subdivision and its design or improvement are consistent with the policies,

goals, and objectives ofthe applicable land use plan (Land Development Code Section

125.0440.a and State Map Act Sections 66473.5, 66474(a), and 66474(b)).

2. The proposed subdivision complies with the applicable zoning and development

regulations ofthe Land Development Code (Land Development Code Section 125.0440.

(b).

-PAGE 2 OF 4- (R-2008-330) U01487

3. The site is physically suitable for the type and density of development (Land

Development Code Section 125.0440.(c) and State Map Act Sections 66474(c) and

66474(d)).

4. The design ofthe subdivision or the proposed improvements are not likely to cause

substantial environmental damage or substantially and avoidable injure fish or wildlife or

their habitat (Land Development Code Section 125.0440.d and State Map Act Section

66474(e)).

5. The design ofthe subdivision or the type of improvements will not be detrimental to the

public health, safety, and welfare (Land Development Code Section 125.0440.e and State

Map Act Section 66474(f)).

6. T he design ofthe subdivision or the type of improvements will not conflict with

easements acquired by the public at large for access through or use of property within the

proposed subdivision (Land Development Code Section 125.0440.f and State Map Act

Section 66474(g)).

7. The design ofthe proposed subdivision provides, to the extent feasible, for future passive

or natural heating and cooling opportunities (Land Development Code Section

125.0440.g and State Map Act Section 66473.1).

8. T he decision maker has considered the effects ofthe proposed subdivision on the housing

needs ofthe region and that those needs are balanced against the needs for public services

and the available fiscal and environmental resources (Land Development Code Section

125.0440.h and State Map Act Section 66412.3).

9. T he proposed subdivision of land complies with requirements ofthe Subdivision Map

Act and the Land Development Code as to area, improvement and design, floodwater

-PAGE 3 OF 4- (R-2008-330) U01488

drainage control, appropriate improved public roads, sanitary disposal facilities, water

supply availability, environmental protection, and other requirements ofthe Subdivision

Map Act or the Land Deveiopment Code enacted pursuant thereto (Land Development

Code Section 125.0122 and State Map Act Section 66428(b)).

10. That the project is consistent with the Downtown Coinmunity Plan and Centre City

Planned District Ordinance.

11. That said Findings are supported by the minutes, drawings, maps, and exhibits, all of

which are herein incorporated by reference.

BE IT FURTHER RESOLVED, that based on the findings hereinbefore adopted by the

Council, Centre City Development Permit 2006-19 and Map Waiver 349046 are hereby

spproved subject to and under the terins Bnd conditions set forth in A-Hschpic^fs A. nvd B-

attached hereto, incorporated herein and made a part ofthis Resolution.

APPROVED: MICHAEL J. AGUIRRE, City Attomey

By Kendall D. Berkey Deputy City Attomey

-PAGE 4 OF 4- U01489 (CC-2008- )

CITY COUNCIL OF

THE CITY OF SAN DIEGO

RESOLUTION NUMBER

DATE OF FINAL PASSAGE '

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN DIEGO CERTIFYING THAT THE COUNCIL HAS PREVIOUSLY REVIEWED AND CONSIDERED INFORMATION CONTAINED IN THE ENVIRONMENTAL IMPACT REPORT FOR THE SAN DIEGO DOWNTOWN COMMUNITY PLAN, CENTRE CITY PLANNED DISTRICT ORDINANCE AND TENTH AMENDMENT TO THE REDEVELOPMENT PLAN FOR THE CENTRE CITY REDEVELOPMENT PROJECT, AND THE ENVIRONMENTAL SECONDARY STUDY RELATING TO THE DEVELOPMENT OF THE 777 BEECH PROJECT; AND MAKING CERTAIN FINDINGS AND DETERMINATIONS REGARDING ENVIRONMENTAL IMPACTS OF THE DEVELOPMENT.

WHEREAS, the City Council ofthe City of San Diego [Council] is engaged in activities

necessary to cany out and implement the Downtown Coinmunity Plan; and

WHEREAS, the Council, by Resolution No. R-30I265, and the Redevelopment Agency

ofthe City of San Diego [Agency], by Resolution No. R-04001, have previously certified the

Final Environmental Impact Report for the San Diego Downtown Community Plan, Centre City

Planned District Ordinance and Tenth Amendment to the Redevelopment Plan for the Centre

City Redevelopment Project [EIR]; and

WHEREAS, the Council proposes to take such actions necessary to provide for the

private development and construction ofthe 777 Beech project, a proposed mixed-use project;

and

-PAGE 1 OF 3 - U01430 .

WHEREAS, the Centre City Development Corporation [CCDC] had perfonned an

Environmental Secondaiy Study for the 777 Beech project in May 2008; and

WHEREAS,

a. No substantial changes are proposed in the Downtown Community Plan [Plan], or

with respect to the circumstances under which the Plan is to be implemented, as a

result ofthe development ofthe 777 Beech project.

b. No new information of substantial importance to the Plan has become available

which was not known or could not have been known with the exercise of

reasonable diligence at the time the EIR for the Plan was certified as completed,

and which shows that the development contemplated by the 777 Beech and

related activities will have any significant effects not discussed previously in the

EIR, or that any significant effects previously examined will be substantially more

severe than shown in the EIR, or that any mitigation measures or altematives

previously found not to be feasible or not previously considered would

substantially reduce or lessen any significant effects on the environment ofthe

development.

c. No negative declaration, or subsequent environmental impact report, or

supplement or addendum to the EIR is necessary or required.

d. The development ofthe 777 Beech project will have no significant effect on the

environment, except as identified and considered in the EIR previously certified;

and

WHEREAS, the Environmental Secondary Study, dated May 2008, includes

a proposed Mitigation Monitoring and Reporting Program; NOW, THEREFORE,

-PAGE 2 OF 3 - u0149i

BE IT RESOLVED, that the Council has previously reviewed and considered

information contained in the EIR for the San Diego Downtown Community Plan, Centre City

Planned District Ordinance and Tenth Amendment to the Plan, as well as the Environmental

Secondary Study relating to the development ofthe 777 Beech project.

BE IT FURTHER RESOLVED, by the Council, that the Mitigation Monitoring and

Reporting Program measures for the development contemplated by the 777 Beech project, as

detailed in the Environmental Secondary Study, are hereby approved.

BE IT FURTHER RESOLVED, by the Council, that a Notice of Detemiination shall be

filed with the Clerk ofthe Board of Supervisors for the County of San Diego regarding the

development contemplated by the 777 Beech project.

APPROVED AS TO FORM: MICHAEL J. AGUIRRE, General Counsel

By. Huston Carlyle Deputy General Counsel

-PAGE 3 OF 3 - 001493 ATTACHMENT A

RECORDING REQUESTED BY: Centre City Development Corporation Architecture & Planning Division 225 Broadway, Suite 1100 San Diego, CA 92101

WHEN RECORDED MAIL TO: Centre City Development Corporation 225 Broadway, Suite 1100 San Diego, CA 92101 . THIS SPAQLFQR REC@imER'S USE ONLY NOTE: CCpN-W RECORDE^^LEASE RECORD AS RESTRI^g)N USE OR .^EVELOMIENT OF REll ' ^^ERJpAFFECTING^HE T ITLE Td%fcJoSSESSION THEREOF

'mm

CENTRE CKY DmELOPl^ENT PERMIT NO, 2006-19 ilk A*^ p*

**-yjg&

"^Sjt Centre City Development Permit No. 2006-19 777 Beech

U 0 i 4 J 4 CENTRE CITY DEVELOPMENT CORPORATION CENTRE CITY DEVELOPMENT PERMIT NO. 2006-19

Pursuant to the regulations of the Centre City Planned District Ordinance (PDO), an application from JSDI, LLC and JSD2, LLC, Owner/Permittee, to construct a mixed-use project on the 20,000 square foot site along the south side of Beech Street between 7th and 8th avenues in the Cortez neighborhood of the Downtown Community Plan Area, and more particularly described as Lot 2 of El Cortez, in the City of San Diego, County of San QifegO) State of Califomia, according to Map thereof No. 14860, filed in the Office of the Couityfi vecorder of San Diego County, August 23, 2004, was reviewed by Centre City Devel£|||ent Corporation and City of San Diego City Council.

A Centre City Development Pennit is granted by the Cjip&f_San Dieg3^^Council to JSDI, LLC and JSD2, LLC, Owner/Pennittee.

1. General

The Developer shall construct, or cause to be constnaJ^|d on the Site, a mixed-use project consisting of 78 residential unitsând approximately^:ftl46 square feet of commercial space. The total Floor Area Ratio (F^jffo^he developmenllforay uses above ground shall be approximately 6.6 and the building|sjia1^^gceed an average height of approximately 144 feet, measured to the top ofthe parapet o^^ûêrmost floor, with roof equipment enclosures, elevator penthouses, mechamcalpcreenmgj||pmd architectural elements above this height permitted|peM|.€entre City PW). F

9 Parkin o -/^^J^, f^ %. z. rancinK ^ ·«&, teas #--*^ The development shalKmciude^pproximafelyW 144 parking spaces, a minimum of 81 of whioysM'll%eSTef^'ed foljuse by the residential units within the project, designed to City Stariuards. An "fiditional 5lp)arking spaces shall be provided in accordance with the ifEa|(lagg Agreemenr^orded oSjthe property. The development shall also provide a mini^OTL of 4 motorcyife parking spaces and storage area for a minimum of 16 bicycles. Any suStkxanean parking facilities encroaching into the public right-of-way shall be located a minimum of six feet back from the face of curb to a depth of eight feet below sidewalk gradp^measufeti to the outside ofany shoring. An Encroachment Removal and Maintenance Agrefenjent shall be obtained from the City to allow any encroachment of the garage into the public right-of-way.

3. Residential Amenities and Facilities

The development includes the following residential amenities and facilities as illustrated on the approved Basic Concept/Schematic Drawings, which shall be required to be maintained by the project in perpetuity: Centre City Development Permit No. 2006-19 777 Beech U01495 a. Pet Open Space - A minimum of 100 square feet of area for use by pets and clearly marked for such exclusive use. The pet open space must contain permeable surface of gravel, sand, grass or similar, or a concrete surface connected to a drain in proximity to an outside faucet for washing down the surface. The development shall be responsible for daily cleaning and regular maintenance ofthis space.

b. Common Outdoor Open Space - The development shall provide and maintain a minimum of 3,000 square feet (15% ofthe project lot size) in theform of common outdoor space for use by the residents ofthe development. T^omOTsions ofthe common outdoor open space(s) shall comply with SectionJ«|

c. Common Indoor Space - A minimum 500 squar#feerGf residentiaflmfenity space shall be provided on the ground floor ofthe tower^adjacent to the outdoor o||pfespace. This space shall be maintained for use by reside.njmtfeof the development and majicomain active or passive recreational facilities, meeting space^omputeFfenninals, or other activity space and must be accessible through a common coniaor

The developer shall be responsible for%)taini^Mlksubdivisi^map approvals throught the City of San Diego to permit the sale of residenfiai^an^g^ommercial condominiums within the project. V6 Development Impact Fees

The project will be(ifsi&jecî^ên&-e City Development Impact Fees. For projects containm^îm^rciar^pace(s), tfelêrmittee shall provide to the City's Facilities Financing Department thexollowing information at the time of application for building peif|it plan check^Stetol sqiSybotage for commercial lease spaces and all areas within ^theîuilding dedicateSt© suppojpnhose commercial spaces including, but not limited to: loadirig£ar-£as, service areas and"corridors, utility rooms, and commercial parking areas; and 2) applicable^floor plansgiowing those areas outlined for verification. i£« 6. Urban Design[Standards

The proposed development, including its a rchitectural design concepts and off-site improvements, shall be consistent with the Centre City PDO and Centre City Streetscape Manual. These standards, together with the following specific conditions, will be used as a basis for evaluating the development through all stages ofthe design review process .

a. Architectural Standards - The architecture of the development shall establish a high quality of design and provide for a modem architectural program as shown in the approved Basic Concept/Schematic Drawings on file with CCDC. The project shall Centre City Development Permit No. 2006-19 777 Beech 001496 utilize a coordinated color scheme consistent with the approved Basic Concept/Schematic Drawings.

b. Form and Scale - The project shall consist of a 12-13 story building with a maximum average building height of 144 feet, measured to the parapet ofthe uppermost habitable floor of the building, and with roof equipment enclosures, elevator penthouses, and mechanical screening above this height permitted per the Centre City PDO. All building elements shall be complementary in form, scale, and architectural style.

c. Building Materials - All building materials shall be of a|Mgh quality as shown in the Basic Concept/Schematic Drawings and approved i^^^^board. All materials and installation shall exhibit high-quality design, detailhig, anSfipustruction execution to create a durable and high quality finish. The b&seof the buiHlngs shall be clad in upgraded materials and carry down to within^\one^ inch of finlSMidewalk grade, as illustrated in the approved Basic Conceja^Schematic D rawings.^ll&idown-spouts, exhaust caps, and other additive elements^all be su^rior grade forSmMn locations, carefully composed to reinforce the architeraiyal^desi^P^eflectivity ofjlthe glass shall be the minimum reflectivity required by Title 241

All construction details shall beWihest standard andêcuted to minimize weathering, eliminate staining, and not cause ddtemoration of materia^fenâdiacent properties or the public right of way. No substitutio|s of hiatgri^s or colons shall be pennitted without the prior written consent of CCD'&. A .#naiticfia|epais board which illustrates the location, color, quSliBând texture o%prbposed exterior materials shall be submitted with 100% Constmction^Drawings anu, shall be consistent with the materials board approved \îf®ie BasicIIMicept/ Schematic Drawings.

d. Street Level Desilife Siilltll&veLstorefront windows shall be clear glass or lightly tmtedMlMlaiiters shamcontain uppaded matenals and be low in scale. Any planters witnin the puBlic^jight-Gfa^ay shall be at grade with a six-inch curb and be approved ^Jhrough an Encroaohment Removal and Maintenance Agreement with the City.

e. Access - Vehicularlaccess serving the site shall be from 8 Avenue. The curb cut shoullibe. 24 feet inlvvadth, but may not be more than 30 feet in width, measured to the inside of^g apronsyAll entry doors shall be of high quality, and shall be designed as attractive aEtlaitectifral features ofthe proposed development.

f. Utilitarian areas - Areas housing trash, storage, or other utility services shall be located in the garage or otherwise completely concealed from view of the public right-of-way and adjoining developments, except for utilities required to be exposed by die City or utility company.

g. Mail/Delivery Locations - It is the developer's responsibility to coordinate mail service and mailbox locations with the United States Postal Service and to minimize curb spaces devoted to postal/loading use. The developer shall locate all mailboxes and Centre City Development Permit No. 2006-19 777 Beech U01497 parcel lockers outside of the public right-of-way, either within the building or recessed into a building wall. Individual commercial spaces shall utilize a centralized delivery stations within the building or recessed into a building wall, which may be shared with residential uses sharing a common street frontage address.

h. Circulation and Parking - Subtenanean parking shall meet the requirements of the Building Inspection Department, Fire Department, and City Engineer. All parking shall be mechanically ventilated. The exhaust system for mechanically ventilated structures shall be located to mitigate noise and exhaust impacts on theJpsiGlential units, adjoining properties, and public right-of-way.

The Developer shall prepare a plan which identifieirthe lo'e||jion of curbside parking control zones, parking meters, fire hydrants, tree^and street lignts. Such plan shall be submitted in conjunction with 100% Constmctioffbrawings.

i. Open Space / Proiect Amenities - A landscape^plan that'jllustrates the relatyMiship ofthe proposed on- and off-site improvements and flft^aMpof^seating, waterf and electrical hookups shall be submitted with 100% ConstrucfioniSrawings.

j. Roof TOPS - A rooftop equipmefitândâppurtenance location and screening plan shaii be prepared and submitted with 100/%^@cinstruction DrawmgyAny roof-top mechanical equipment must be grouped, enclosed, arf^cêened from sunounding views.

k. Lighting - A lightjn^plan which higmights the arefoitectural qualities of the proposed project and alsgleim^oeslthe lighting ofthe public right-of-way shall be submitted with 100% Constniotion Drawings. All lighting shall be designed to avoid illumination of adjoining properties J ^ || F

1. Ener^Won'siderations&The desiSlBjflhe improvements shall include, where feasible, energy consenation construction techniques and d esign, including cogeneration ^facilities, and ae#|kand passives-solar energy design. The Developer shall demonstrate ^Wsideration of such energlrfeatures during the review of the 100% Construction Drawings. ^U m. Noise Control - ]S\\ m echanical equipment, including but not limited to, air conditioning||heatjifg and exhaust systems, shall comply with the City of San Diego Noise OrdinariGe^and Califomia Noise Insulation Standards as set forth in Title 24 ofthe California Code of Regulations. All mechanical equipment shall be located to mitigate noise and exhaust impacts on adjoining development, particularly residential. Developer shall provide evidence of compliance at 100%) Construction Drawings.

n. Signs - All signs shall comply with the City of San Diego Sign Regulations and the Centre City PDO. Centre City Development Permit No. 2006-19 777 Beech UU 1493 o. S treet Address - Building address numbers shall be provided that are visible and legible from the public right-of-way.

7. On-Site Improvements

All off-site and on-site improvements shall be designed as part of an integral site development. An on-site improvement plan shall be submitted with the 100% Construction Drawings. The on-site landscaping shall establish a high quality of design and be sensitive to landscape materials and design planned for the adjoining pubIi|plg|its-of-way.

8. Off-Site Improvements

The following public improvements shall be installed,, invaccordaiiBCTyith the Centre City Streetscape Manual. The Manual is cunently beii|gn!pQated and the (li||eloper shall install the appropriate improvements according to thepatest requirements at th^^^e of Building Permit issuance;

SIDEWALK PAVING: CCDC Standard STREET LIGHTS: CCDC Standard STREET TREES: Jacaranda

a. Street Trees - All trees shall be plarfted SafiSitiimum 36-in0h box size with tree grates provided as specified in the CCDC SfreetscapeMîiayand shall meet the requirements of Title 24. Tree sptfcjngvshall be accommodated aftWstreet lights have been sited, and generally spac^d'Ô t^2|||eet on centerrjAll landscaping shall be inigated with private water servi^ft/bm the sufej|ct property. The developer will be responsible for evaluating,#witKf|onsultatioii with CCDC,^vhlther any existing trees within the right-of- way shall be mainminedâhil^pj'eseryed. No^trees shall be removed prior to obtaining a Treei^SâlJPermifefrom the CitySSeets Division per City Council Policy 200-05. mm, b^Street Lights -^llexistin·egisfel."g gt e shall be evaluated to determine if they meet cunent ^ -SSpG and City rel|j|irementspind shall be modified or replaced if necessary.

3'St? ""%*··«?%. I^S c. Sidewalik.Paving -.Ay specialized paving materials shall be approved through the executibf|fbf,an Encroachment Removal and Maintenance Agreement with the City. MH' d. On Street Parking - The developer shall maximize the on-street parking wherever feasible. -/'

e. Litter Containers - CCDC Standard public trash receptacles shall be provided at each street comer.

f. Public UtiUties fsewer. water and storm drain) - The Developer shall be responsible for the connection of on-site sewer, water and storm drain systems from the development to the City Utilities located in the public right-of-way. Sewer, water, and roof drain laterals Centre City Development Permit No. 2006-19 777 Beech U01499 shall be connected to the appropriate utility mains within the street and beneath the sidewalk. The Developer may use existing laterals if acceptable to the City, and ifnot, Developer shall cut and plug existing laterals at such places and in the manner required by the City, and install new laterals. The developer will be required to 'kill' all unused water services adjacent to the project site. Service kills require an engineering permit and must be shown on a public improvement plan. The Developer shall provide, satisfactory to the MWDD, CC&R's for the operation and maintenance of on-site private sewer facilities that serve more than one ownership. All roof drainage and sump drainage shall be connected to the storm drain system iiMpi^gublic street, or if no system exists, to the street gutters through sidewalk underdrams. Such underdrains shall be approved through an Encroachment Removal Agreemenwith the City.

Prior to the issuance of any building pennits, thegieveloper sSSgissure, by pennit and bond, the construction of all public sewer faeilifieS^as required c|§t||e accepted sewer

study necessary to serve this development,jt^luding vehicular access©|thin easements . The developer shall design all propose'dl4p$>lic sewer facilities in alcorQance with established criteria in the most cmrent editioi%|^ej|p^qf San Diego^current sewer design guide.

The project snail comply wim tneM^ity or ban uiegc^gtorm water ivianagement anu Discharge Control Ordinance an(Sme|stonn water polluM&pfevention requirements of Chapter 14, Article 2, Division l^and Cli°aptertbJ4, Article 2, Division 2 of the Land Development Code. \ ^^Wfefe '

The developer^sKall be&feponsible fonthe relocation of any and all public and private utilities withinfthe projeciisite which serye the adjacent El Cortez Hotel building and site. Such utilifies|shall befpermitted, constructed and inspected by the City prior to the disconnection of any|sucl8jastmg-.utilitiesf

g. F ranchise "PuIlicwUtilities^. The Developer shall be responsible for the installation or ^Tfrelocation of fragihise utilify&connections including, but not limited to, gas, electric, ^^Selephone and camMtp the project and all extensions of those utilities in public streets. Exis|mg franchisedmtilities located above grade and in the sidewalk right-of-way shall be removed and incdrporated into the adjoining development where feasible. Electrical transfonner^vaults Juall be installed in a subterranean location accessible to the franchise utifit^^pm the public right-of-way where feasible. Covers to utility vaults located in thefjublic right-of-way shall be designed as a pan which allows the lid to be in filled with^the same paving materials used in the adjoining right-of-way where feasible.

The developer shall be responsible for the relocation of any and all franchise public and private utilities within the project site which serve the adjacent El Cortez Hotel building and site. Such utilities shall be permitted, constructed and inspected by the City, as applicable, prior to the disconnection of any such existing utilities. Centre City Development Pennit No. 2006-19 777 Beech U01500 h. Fire Hydrants - If required, the Permittee shall install fire hydrants at locations satisfactory to the Fire Department and Development Services Department,

i. Backflow preventers - The developer shall locate all water meters and backflow preventers in locations satisfactory to the Water Utilities Department and CCDC. Backflow preventers shall be located outside ofthe public right-of-way adjacent to the project's water meters, either within the building, a recessed alcove area, or within a plaza or landscaping area. The devices shall be screened frgm view from the public right-of-way.

All items of improvement shall be perfonned in accorda^^^^ the technical specifications, standards, and practices ofthe City of San Diego||Engineering and Building Inspection Departments and shall be subject tc^their revi^||and approval. Improvements shall meet the requirements of T^m2?bf the State Buluing Code.

Off-site improvement drawings (D sheets)nncluding dimensional plans fcHfalirstreet frontages which illustrate proposed paving, stree^bee^^ntijig fixtures shall be . submitted with 100% Constmction Drawings. SucWrf-site plan shall be coordinated to complement and be comparable in,.quality to the adjd inm^ on-site and off-site plazas, open space and sidewalk materialsl|few

If, during construction, any improved|portidni'of|t;he jpublic right-of-way is damaged or destroyed, the Developer shall be resplnsible'for'^^^piafcement or repair of those

improvements. i j^R^ K \ f JF

9. Removal and/oB^Remedy of Soil and/or WatersContamination

The Developer shall (atîts ro\^feost*;andêxpense) remove and/or otherwise remedy as provideldEbyBla^land implementing rulesând regulations, and as required by appropriate govemmental aum^nties, an|||;ontaminated or hazardous soil and/or water conditions on tKllSite. Such workîayJncludeîtHout limitation the following: ^%. Ill / a. Remove (and disposelof) and/or treat any contaminated soil and/or water on the Site (and encountered during installation of improvements in the adjacent public rights-of- way whfch^the Developer is to install) as necessary to comply with applicable govemmentM||tendards and requirements. '0' b. Design and constmct all improvements on the Site in a manner which will assure protection of occupants and all improvements from any contamination, whether in vapor or other form, and/or from the direct and indirect effects thereof. c. Prepare a site safety plan and submit it to the appropriate govemmental, CCDC, and other authorities for approval in connection with obtaining a Building Permit for the constmction of improvements on the Site. Such site safety plan shall assure workers and Centre City Development Permit No. 2006-19 777 Beech 001501 other visitors to the Site of protection from any health and safety hazards during development and constmction of the improvements. Such site safety plan shall include monitoring and appropriate protective action against vapors and/or the effect thereof

d. O btain from the County of San Diego and/or Califomia Regional Water Quality Control Board and/or any other authorities required by law any permits or other approvals required in connection with the r emoval and/or r emedy of s oil and/or water contamination, in connection with the development and construction on the site.

e. If required by a govemmental authority having jurisdicti^gover the Site and due to the presence of contamination, an impermeable membrang&rÔThgr acceptable constmction altemative shall be installed beneath the foundatiOTof t^^îlding. Drawings and specifications for such vapor barrier system shallbe si^nritted%||review and approval to CCDC. CCDC shall have the right, but nt^t^^hligation, to o^ê installation of such vapor barrier system and to requirerf^Ljustments to such insta||||ipn if deemed appropriate by CCDC consultants.

10. Environmental Impact Mitigation

The Developer shall comply w iMland implement, ^t». mitigation measures and/or mitigation monitoring requirements asSuenti|jed in the En^onmental Secondary Study prepared for the project dated January 2g08.

11- Model V«&W*-MP

Prior to obtaimrig%EJuilding|Pennit, the Permittee shall provide a one-inch (1") t o fifty- foot (50') scale bloc™uilding|mpdel which illusfrates the tme scale ofthe buildings on the site based on the buildSiMaWa^nd^the.iloorplate ofthe stmcture from the ground floor to and i^ludmg||hgr^oftop'imkbase is required. Landscaping at the ground level shall also be sho\pi. ArchitectdSllMetail suck, as windows, door, and balconies shall not be shown. Other bullying elements <"^»*^ articuTa^a^Sss than three feet in scaled dimension need not be

The modelWbtrshall be mad^of solid acrylic plastic (e.g., Lucite, Plexiglas), be colored solid white and be^compatibJe%ith the scale and contours of the model of downtown on display at the CentreN|rty4llevelopment Corporation's Downtown Information Center. Upon acceptance by C€©C, the model shall be installed by the developer or his designated representative oif the model of downtown and the model shall become the property of the Centre City Development Corporation for its use.

12. Construction Fence

Developer shall install a constmction fence pursuant to specifications of, and a permit from, the City Engineer. The fence shall be solid plywood with wood framing, painted a consistent color with the project's design, and shall contain a pedestrian passageway, signs, Centre City Development Permit No. 2006-19 777 Beech U01502 and lighting as required by the City Engineer. The fencing shall be maintained in good condition and free of graffiti at all times.

13. Development Identification Signs

Prior to commencement of constmction on the Site, the Developer shall prepare and install, at its cost and expense, at least one sign on the barricades around the Site which identifies the development. Each sign shall be at least four (4) feet by sixj|6) feet and be visible to passing pedestrian and vehicular traffic. The signs shall at a mi^^M^nclude:

— Colored rendering ofthe development — Development name — Developer ~ Completion Date -- For information call

Each sign shall also contain the CCDC "Paradise^ %Qgo and the Qowntown Construction Hotline phone number.

Additional project signs may be provio^^round the perimp|br ofthe site. All signs shall be limited to a maximum of 160 square leet^pegstjeet frontagStGraphics may also be painted on any barricades sunounding the sitemll sims^ad.graphic^iall be submitted to CCDC for approval prior to installation. % J^ ^%MI m* 14. This Centre Cityfpevelopment Pennit shajl be conditioned upon obtaining a Building Permit within^tfegej|(3) year-s|from the da^ of issuance. The Pennit approvai may be extended in accordaliee|withjKe^grovisions oflhe Land Development Code and Centre City PDO in effect at that time|#

15. Consimction anmlojgeratiori^fof^the'*-&Mip. approved use shall comply at all times with the , j^giaations ofthis of;M^vother gov£iTimental agencies.

16. This p^efmil: is a coven^ferunning with the lands and shall be binding upon the Permittee ·"^esfe and any siiecessor or successors, and the interest ofany successor shall be subiect to each and every conoition set/out. ·'·#d"5f. 17. This project shall iC-omply with the standards, policies, and requirements in effect at the time ofapproval ofthis project, including any successor or new policies, financing mechanisms, phasing schedules, plans and ordinances adopted by the City of San Diego.

18, No pennit for constmction, operation, or occupancy ofany facility shall be granted nor shall any activity authorized by this permit be conducted on the premises until this Permit is recorded in the OFFICE OF THE COUNTY RECORDER.

10 Centre City Development Permit No. 2006-19 777 Beech uul503 This Centre City Development Permit is granted by the City of San Diego City Council on , 2008.

CENTRE CITY DEVELOPMENT PERMITTEE SIGNATURE CORPORATION

Brad Richter Date Current Planning Manager

11 U01504

State of _

County of

On before me. Date Name, Title of Office

personally appeared Name(s) of Signer(s)

personally known to me - OR -

proved to me on the basis of satisfactory evidence to b&the person(s) whose name(s) is/are subscribed to the within instrument "and* acknowledged tome that he/she they executed the same in his/her/their authorized capa&MfiesL and that by "MsMer/their signature(s) on the instrument the person(s), or the entity u^on BlMfeof which theiperson(s) acted, executed the instmment. «, JJS^ JW J^tm mymand and official seal.

^||s|lSignature of Notary

» .

'fe^v^W*' u015 05 ATTACHMENT B

MAP WAIVER 349046 PROPOSED CONDITIONS OF APPROVAL

GENERAL

1. This Map Waiver will expire (3 years from Council action).

2. Compliance with all ofthe following conditions shall be assured, to the satisfaction ofthe City Engineer, prior to the recordation ofthe Certificate of Compliance unless otherwise noted.

3. A Certificate of Compliance shall be recorded in the Office ofthe County Recorder, prior to the Map Waiver expiration date.

4. The Certificate of Compliance shall conform to the provisions of Centre City Development Permit 2006-19.

5. The subdivider shall underground any new service run to any new or proposed structures within the subdivision.

AFFORDABLE HOUSING

6. P rior to the issuance of any building pemiits, the developer shall comply with the Affordable Housing Requirements ofthe City's Inclusionaiy Housing Ordinance (Chapter 14, Article 2, Division 13 of the Land Development Code.)

ENGINEERING

7. Pursuant to City Council Policy 600-20, the subdivider shall provide evidence to ensure that an affirmative marketing program is established.

8. T he subdivider shall enter into a Maintenance Agreement for the ongoing permanent BMP maintenance.

9. P rior to the issuance of any constmction pennit the subdivider shall submit a Water Pollution Control Plan (WPCP). The WPCP shall be prepared in accordance with the guidelines in Appendix E ofthe City's Storm Water Standards.

10. Prior to the issuance ofany constmction permits, the subdivider shall incorporate and show the type and location ofall post-constmction Best Management Practices (BMP's) on the final constmction drawings, in accordance with the approved Water Quality Technical Report.

Page 1 of4 U01506 11. Prior to the issuance ofa Certificate of Compliance, taxes must be paid on this property pursuant to section 66492 ofthe Subdivision Map Act. A tax certificate, recorded in the office ofthe County Recorder, must be provided to satisfy this condition.

12. The drainage system proposed for this subdivision, as shown on the Map Waiver exhibit, is private and subject to approval by the City Engineer.

13. The subdivider shall close the existing driveway on Eighth Avenue with restoration to full-height curb, gutter and sidewalk, and shall install a new 24-foot driveway on Eighth Avenue.

14. The subdivider shall obtain an Encroachment Maintenance and Removal Agreement, for enhanced sidewalk paving in Beech Street, three (3) sidewalk underdrains in Seventh Avenue and two (2) sidewalk underdrains in Eighth Avenue.

15. This project proposes to export 33,000 cubic yards of material from the project site. All export material shall be discharged into a legal disposal site. The approval ofthis project does not allow the onsite processing and sale ofthe export material unless the underlying zone allows a constmction and demolition debris recycling facility with an approved Neighborhood Use Permit or Conditional Use Permit per LDC Section 141.0620(i).

16. The subdivider shall obtain a grading/shoring pemiit for the excavation proposed for this project.

17. The subdivider shall replace the sidewalk, maintaining the existing sidewalk scoring pattern and preserving any contractor's stamp, adjacent to the site on Seventh Avenue, Beech Street and Eighth Avenue.

18. The Subdivider shall comply with all cunent street lighting standards according to the City of San Diego Street Design Manual (Document No. 297376, filed November 25, 2002) and the amendment to Council Policy 200-18 approved by City Council on Febmary 26, 2002 (Resolution R-296141) satisfactory to the City Engineer. This may require (but not be limited to) installation of new street light(s), upgrading light from low pressure to high pressure sodium vapor and/or upgrading wattage.

19. The Subdivider shall underground any new service run to any new or proposed stmctures within the subdivision.

20. Prior to recordation ofthe Certificate of Compliance, all existing on-site utilities serving the subdivision shall be undergrounded with appropriate permits. The applicant shall provide written confirmation from applicable utilities that the conversion has taken place, or provide other means to assure the undergrounding, satisfactory to the City Engineer.

21. Prior to recordation ofa Certificate of Compliance, the applicant shall conform to Municipal Code provisions for "Public Improvement Subject to Desuetude or Damage." If repair or replacement of such public improvements is required, the owner shall obtain

Page 2 of4 U01507 the required permits for work in the public right-of-way, satisfactory to the City Engineer.

22. Conformance with the "General Conditions for Tentative Subdivision Maps," filed in the Office ofthe City Clerk under Document No. 767688 on May 7, 1980, is required. Only those exceptions to the General Conditions which are" shown on the Map Waiver and covered in these special conditions will be authorized.

23. All public improvements and incidental facilities shall be designed in accordance with criteria established in the Street Design Manual, filed with the City Clerk as Document No. 769830.

MAPPING

24. The design ofthe subdivision,shall include private easements, if any, serving parcels of land outside the subdivision boundary or such easements must be removed from the title ofthe subdivided lands prior to filing any parcel or final map encumbered by these easements.

SEWER AND WATER

25. Prior to the issuance ofany building pemiits, the Owner/Permittee shall assure, by permit and bond, the design and constmction of new water service(s) outside ofany driveway, and the disconnection at the water main ofall existing unused services adjacent to the site, in a manner satisfactory to the Water Department Director and the City Engineer.

26. Prior to the issuance ofany building pemiits, the Owner/Permittee shall apply for a plumbing permit for the installation of appropriate private back flow prevention device(s) on each water service (domestic, fire, and irrigation), in a manner satisfactory to the Water Department Director and the City Engineer.

27. Prior to the issuance ofany certificates of occupancy, public water facilities necessary to serve the development, including services, shall be complete and operational in a manner satisfactory to the Water Department Director and the City Engineer.

28. The Owner/Permittee agrees to design and constmct all proposed public water facilities in accordance with established criteria in the most cunent edition ofthe City of San Diego Water Facility Design Guidelines and City regulations, standards and practices pertaining thereto. Public water facilities, as shown on approved Exhibit "A", shall be modified at final engineering to comply with standards.

GEOLOGY

29. Prior to the issuance ofa grading pennit, a geotechnical report shall be submitted and approved by the City Engineer in accordance with the City of San Diego "Technical Guidelines for Geotechnical Reports."

Page 3 of 4 rjl508

INFORMATION:

The approval ofthis Map Waiver by the City Council ofthe City of San Diego does not authorize the subdivider to violate any Federal, State, or City laws, ordinances, regulations, or policies including but not limited to, the Federal Endangered Species Act of 1973 and any amendments thereto (16 USC Section 1531 et seq.).

If the Subdivider makes any request for new water and sewer facilities (including services, fire hydrants, and laterals), then the subdivider shall design and constmct such facilities in accordance with established criteria in the most cunent editions ofthe City of San Diego water and sewer design guides and City regulations, standards and practices pertaining thereto. Off-site improvements may be required to provide adequate and acceptable levels of service and will be detennined at final engineering.

This development may be subject to payment of a park fee prior to the filing ofthe Certificate of Compliance in accordance with the San Diego Municipal Code. This property is also subject to a building permit park fee in accordance with the San Diego Municipal Code.

Subsequent applications related to this Map Waiver will be subject to fees and charges based on the rate and calculation method in effect at the time of payment.

Any party on whom fees, dedications, reservations, or other exactions have been imposed as conditions ofapproval ofthe Map Waiver, may protest the imposition within 90 days ofthe approval ofthis Map Waiver by filing a written protest with the City Clerk/ pursuant to Califomia Govemment Code Section 66020.

This development may be subject to payment of School Impact Fees at the time of issuance ofbuilding permits, as provided by Education Code Section 17620, in accordance with procedures established by the Director of Building Inspection.

V3 '03i!0 NVS 33IJJ0 SJHI313 UIO LV.ZIHd Sl 130 80 a3AI303H Page 4 of4 337 LAW OFFICES OF EVERETT L. DELANO III W

October 24, 2008 cz> CO cz-r . ^ j ; CD VIA E-MAIL & U.S. MAIL CD ^m ro ^o CO ! M Honorable Chair and Members ofthe Redevelopment Agency r o ^ Council President and City Councii £^ z^ ^ < zzz ^m c/o City Clerk. CI —J 11.—, City of San Diego * ^ —.o 1222 First Ave., 2nd Floor ^ ~ SanDiego, CA 92101 ...^

Re: 777 Beech - Centre City Development Permit 2006-19. Map Waiver 349046 & Agreement Affecting Real Propertv

Dear Honorable Chair and Members ofthe Redevelopment Agency, Council President and City Council:

T-U:- i^«^- :,- ,.,.u™:*»—i — u„u-,if ~r tU„ ci r*,,-^., i.!^^,,,^,,™,^^^ A ^^^r.î'm^ *« 1 IHO i^HV-l IO ÛUI 111 ILVU UII L'\-ilCli I ui m ^ !_.· vûi n./- i J\jiii\-vr vv uti O /uowtimnj u nj provide comments regarding the proposed high-rise project next to the Ei Cortez (''Project"). I previously submitted letters regarding the Project, which addressed several issues, including the lack of adequate environmental review and failure to comply with the Subdivision Map Act. Although I understand they are already a part ofthe materials before you, copies of some of my letters are enclosed for your convenience.

The October 15, 2008 siaff report mentions the 1998 Agreement Affecting Real Property ("1998 AARP"), but it fails to note that-the 1998 AARP is the subject of a class action lawsuit in San Diego Superior Court. This lawsuit alleges that the owners of property at the El Cortez are successors in interesl to the 1998 AARP and, therefore, no action can be taken thai would interfere with their rights without the agreement of those owners. This question will be considered by the Court on cross motions for summary judgment on November 6, 2008. A copy ofthe Plaintiffs' memorandum in support of their motion for summary j udgment is enclosed.

Accordingly, approval ofthe Project and oflhe proposed Agreement Affecting Real Property for Lol 2 {"Proposed Lot 2 AARP") would be in violation of the.1998 AARP without the consenl ofthe owners at the El Cortez. Neighborhood Aclion Group for the Fifth Dist. v. County of Calaveras (1984) 356 Cal.App.3d 1176; 1184 ("A permit aclion taken,w ilhout compliance with the hierarchy of land use laws is ultra vires as to any defect implicated by ihe uses sought by the permit")-

It is also important to note that neither Planning Commission members nor Centre City Development Corporation (''CCDC") board members were ever provided an Comments re 777 Beech Street October 24, 2008 Page 2 of 2 opportunity to review and discuss the Proposed Lot 2 AARP. This hardly seems consistent with the mandates ofthe Commission or the CCDC board.

Thank you for your consideration of these concems.

Sincerely, i Ms ^Everett Enc: (1) Letter to Brad Richter (January 22, 2008); (2) Letter to Brad Richter (June 3, 2008); (3) Letter to Brad Richter (June 4, 2008); and (4) Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment or, in the Altemative, Summary Adjudication (August 1, 2008) cc: Brad Richter. CCDC LAW OFFICES OF EVERETT L, DELANO 220W. Grand Avenue Escondido, California 92025 (760)510-1562 (760) 510-1565 (fax) January 22, 2008 g oo

VIA FACSIMILE & U.S. MAIL CD

Brad Richter Principal Planner T> := o p-j Centre City Development Corporation =^ T-J in.^-n 225 Broadway, Suite 1100 ' ^ ^ - >5> San Diego, CA 92101 jg; *" $*

Re: 777 Beech Map Waiver: Motion to Reconsider

Dear Mr. Richter:

This letter is submitted on behalf of the El Cortez Homeowners Association in connection with the proposed high-rise project next to the El Cortez ("Project") and associated '·Environmental Secondary Study" ("Secondary Study"). Please ensure that copies of this letter are provided to members of the Centre City Advisory Committee ("CCAC") prior to their January 23, 2008 meeting.

I. Introduction

The January 16, 2008 Staff Report to the CCAC states: "In order to sell the residential units, as well as the commercial spaces, within the project to individual owners, a Map Waiver is required ofthe development... . Because the Map Waiver does not change the project except for the ability to sell individual ownerships ofthe residential and commercial units, it is recommended that it be recommended for approval, with the development," These statements imply that without approval ofthe map waiver, the developer could still build the 777 Beech Project, but that he would not be able to sell any individual units. That is inconect. The 777 Beech project consists ofup to 78 residential condominiums and 15,261 square feet of retail/commercial space. A tentative and final map is required for all subdivisions creating five or more condominiums as defined in Section 783 ofthe Civil Code. Gov. Code § 66426. Under certain limited conditions, a waiver of these mapping requirements may be available pursuant to Government Code Section 66428. Therefore, either a tentative and final map or a waiver ofthe map requirements is required for the 777 Beech Project. Denial ofthe map waiver would mean that the appHcant would be required to process a tentative and final map with the City, pursuant to the Map Act and the Municipal Code.

In this instance, the Map Waiver request for the 777 Beech Project should be denied and preparation of environmental review should be required. Comments re 777 Beech Street January 22, 2008 Page 2 of 6

II. The Map Submitted to the City is Inaccurate in That It Does Not List AU Relevant Documents Recorded Against the Property

Map Waiver No. 349046 lists certain "Agreements, Facts and Documents" on page 3. However, the list is incomplete and therefore misleading. Most notably, the Map Waiver does not list the 1999 "Agreement Affecting Real Property*' executed bythe Redevelopment Agency of San Diego and Janopaul Block S.D. No. 1, LLC, Recorded April 5, 1999 as File No. 1999-0226346 of official records. This Agreement restricts the uses ofthe property until June 30, 2025, and is discussed in detail below.

Members ofthe public have noted this deficiency, yet the omission has not been conected. The omission makes the map waiver application inaccurate and misleading to members ofthe public and to City officials.

III. A Map Waiver Would Violate the Subdivision Map Act and the San Diego Municipal Code

The Califomia Subdivision Map Act ("Map Act") sets out the mapping requiremerits for divisions of land. The San Diego Land Development Code is the local ordinance enacted pursuant to the Map Act, and is codified at San Diego Municipal Code ("Municipal Code") Chapters 11 through 15.

The Map Act allows for a city ordinance to provide a procedure for waiving the requirement for a parcel map, tentative map, or final map provided that that ordmance "require a finding by the legislative body or advisory agency, that the proposed division of land complies with requirements established by this division or local ordinance enacted pursuant thereto." Gov, Code § 66428(b) (emphasis added).

Pursuant to this section ofthe Map Act, the Municipal Code allows a subdivider to "request a waiver ofthe requirement to file a tentative map and parcel map or final map for the construction ofa new condominium project on a single parcel that was previously mapped and monumented in a manner satisfactorv to the City Engineer in accordance with Subdivision Map Act Section 66428(b)." Muni. Code § 125.0120.

In this instance, the parcel was not previously mapped and monumented in accordance with Subdivision Map Act Section 66428(b) because the City.failed to comply with the requisite notice provisions. Therefore a map waiver in this instance would violate both the Map Act itself (§ 66428(b)) and the Municipal Code (§ 125.0120).

The division of land at issue in this project did not "comply with the requirements estabhshed by3' either the Map Act or the Municipal Code because the City failed to give the requisite notice. In 2004, the then owner.of the entire El Cortez block processed a tentative map with the City to convert the El Cortez building from apartments to condominiums. In addition to subdividing the hotel building into condominiums, the tentative map established two parcels on the block with separate Assessor Parcel Comments re 777 Beecli Street January 22, 2008 Page 3 of 6

Numbers where previously there had been one. The tentative map was approved by the Planning Commission and later recorded. However, the City failed to provide notice to adjacent land owners as required by both the Map Act and the Municipal Code. Sections 112.0301 and 112.0302(b) ofthe Municipal Code require that, in the context ofa tentative map application, a Notice of Application and Notice ofPublic Hearing be mailed to "all addresses located within 300 feet ofthe boundary ofthe real property that is the subject ofthe apphcation, including each address within a condominium or apartment complex." The Map Act contains almost identical requirements for notice. It requires that notice be sent at least 10 days prior to the hearing "to all owners of real property as shown on the latest equalized assessment roll within 300 feet ofthe real property that is the subject ofthe hearing." Gov. Code § 65091(a)(4).

The October 10, 2007 CCDC Staff Report states: 'There was apparently an incomplete PubUc Notice package submitted by the applicant which did not include all property owners within 300 feet,, including homeowners within the Discovery project located.to the northeast ofthe block. However, this was not brought to the attention of City staff until after all approvals had been granted and the Final Map had been recorded." In fact, there were roughly 199 owners of adjacent property who were not given any notice of the tentative map application.

. This failure to provide the required notice violated both the Map Act and the Municipal Code. Therefore, the requisite finding that the proposed division of land complies with requirements established by the Map Act or local ordinance (Municipal Code) cannot be made. .Absent such a finding, a Map Waiver is not available, and the requirements.for processing a tentative map apply to the project.

IV. The Failure to Notify Property Owners of the 2004 Tentative Map ofthe Property Deprived Property Owners oftheir Constitutional Due Process Rights

The failure to provide the requisite notice ofthe tentative map application violated the Municipal Code and Map Act as discussed above. However in addition, it violated the constitutional due.process rights of those adjacent property owners who did not receive notice.

The general mle is that "whenever approval ofa tentative subdivision map will constitute a substantial or significant deprivation ofthe property rights of other landowners, the affected persons are entitled to a reasonable notice and an opportunity to be heard before the approval occurs.", Horn v. County of Ventura (1979) 24 Cal. 3d 605, 616. It'is well established that adjudicatory govemmental processes are subject to procedural due process principles, while legislative processes are not. Kennedy v. City of Hayward {\9%(f) 105 CaL App. 3d 953, 961. Subdivision approvals have been consistently held to.be adjudicatory in nature; See id. ("Since subdivision approvals, like variances and conditional use pennits, involve the application of general standards to specific parcels of real property, affected,relatively few and were.determined by facts peculiar to the individual case, they were adjudicatory in nature"). Comments re 777 Beech'Street January 22, 2008 Page 4 of 6

In this instance, the approval ofthe tentative subdivision map in 2004 constituted a substantial and significant deprivation ofthe property rights of adjacent owners, because, among other things, the tentative map affected the split of an historic city block into two separate assessors' parcels.

Since adjacent owners were deprived oftheir constitutional right to due process in the context ofthe previous tentative map approval, it is even more important to require that a tentative map approval process for the cunent project proposal

V. The 1999 Agreement Affecting Real Property Prohibits Construction ofa New Building on the Property Until After June 30,2025,

The 1999 Agreement Affecting Real Property ("AARP") referenced and discussed in the StaffReport dated October 10, 2007, prohibits the development ofa new building on the cityb lock containing the historic El Cortez Hotel building. The AARP identifies the improvements on and uses ofthe property at the time that the AARP was entered into as "85 residential apartment units, lobby space, the Don Room special events space, 4,000 square feet of neighborhood-serving commercial space, a total of .104 parking spaces in the parking garage and in the tower basement, with landscaping and amenities." It states that the property sha.ll be used "only for the development pennitted and the uses specified in this Agreement." The AARP further states that, other than the covenants against discrimination, "[e]very other covenant and condition and restriction contained in this agreement shall remain in effect until June 30, 2025..." In other words, the only improvements allowed on the El Cortez Site are the El Cortez hotel building, along with related parking areas and amenities. The staff report concludes that "the redevelopment Agency.may approve the 777 Beech project if it so chooses under the terms of, and without amending, the AARP." It quotes, in support ofthis conclusion, the following passage from the AARP: "Owner, its successors and assigns, shall protect, maintain and preserve the Improvements on the ' Property and obtain approval in writing from the Agency prior to any material alteration or modification of such Improvements, such approval not to be unreasonably withheld or delayed."

There are two reasons this quote does not support the conclusion that the terms of the AARP allow for the development of an entirely new stmcture and related infrastructure on the block.

1. The Proposed Proiect is Not a Material Alteration to an Existing Improvement

The language quoted above allows the Redevelopment Agency to approve a "material alteration or modification" of an existing Improvement. The term "Improvement" is a term of art, referring usually to a building, but also to any permanent stmcture such as sewers, utilities, etc. The 777 Beech Project is a development project Comments re 777 Beech Street January 22, 2008 Page 5 of 6 consisting of an entirely new building, or improvement. It is not merely a material alteration as is contemplated by the AARP.

The AARP itself defines the term "Improvements" as "the improvements thereon." It describes with particularity the existing improvements allowed by the AARP as: "85 residential apartment units, lobby space, the Don Room special events space, 4,000 square feet of neighborhood-serving commercial space, a total of 104 parking spaces in the parking garage beneath the former Annex building and in the tower basement, with landscaping and amenities...."

Therefore, before any material alteration or modification of an existing building or stmcture may be undertaken, approval ofthe Redevelopment Agency is necessary, according to the terms ofthe AARP. However, a new building is not a material alteration or modification, and therefore this section ofthe AARP is inapplicable to the cunent development proposal before the CCDC, or any development proposal for a new improvement on the property.

A new building would be a new improvement, not a "material alteration or modification of" an existing improvement as is contemplated by the AARP. Any new improvement on the property prior to June 30, 2025 would violate the terms ofthe .AARP.

The AARP contemplates possible alterations or modifications ofthe "improvements" (le., buildings and infrastmcture) that existed on the El Cortez Site at the time the AARP was executed. However the AARP prohibits any new improvements (i.e. buildings and infrastmcture) until June 30, 2025.

2. Anv Request for a Material Alteration Would Need to be From All Owners ofthe Property Covered by the AARP

Furthermore, the AARP states that in the event that approval for a material alteration is sought, "[ojwner, its successors and assigns" shall obtain that approval in writing from the Redevelopment agency. There are cunently over 100 owners ofthe property covered by the AARP. These owners are all "successors" to the owner who was a signatory to the AARP. That is, the agreement simply does not allow for one out ofa multitude of owners to request approval for an alteration; such a request would need to be made by all ofthe "successors," or all the cunent owners ofthe property covered by the AARP.

VI. An EIR is Required Before Proceeding

The Califomia Environmental Quality Act ("CEQA"), Public Resources Code § 21000 etseq., requires the preparation of an Environmental Impact Report ('EIR") whenever substantial evidence in the record supports a "fair argument" that significant environmental impacts may occur. Pub. Res. Code § 21080(d); No OU, Inc. v. City of Los Comments re 777 Beech Street " , January 22, 2008 Page 6 of 6

Angeles (1975) 13 CaL3d 68. There is a "low threshold requirement for preparation of an EIR." No Oil, 13 CaL3d at 84. If there is "substantial evidence that the project might, have [a significant impact on the environment], but the agency failed to secure preparation ofthe required EIR, the agency's action is to be set aside because the agency abused its discretion by failing to proceed in a 'manner required by law.'" Friends of "B" Street v. City ofHayward (19*0) 106 Cal.App.3d 988,1002. ·If there was substantial evidence that the proposed project might have a significant environmental impact, evidence to the contrary is not sufficient to support a decision to dispense with preparation of an EIR and adopt a negative declaration, because it could be 'fairly argued' that the project might have a significant environmental impact." Id.

CEQA is essentially "an environmental full disclosure statute, and the EIR is the method ... [for] disclosure ..." Rural Landowners Assn. v. City Cownd/(1983) 143 Cal. App. 3d 1013,1020. Here, the City should prepare an EIR before proceeding; the Project is likely to lead to several significant impacts.

The Secondary Study asserts that the City can avoid preparation of an EIR for the Project, claiming "the potential impacts associated with future development within the Centre City Redevelopment Project are addressed in the Final Environmental Iinpact Report (FEIR) prepared for the San Diego Downtown Community Plan ...."' Notably, this statement is not limited to the Project; rather, it claims that all "future development within" the redevelopment area are covered by the Downtown Community Plan FEIR. But the Project and its impacts were not discussed and analyzed in the Downtown Community Plan FEIR; therefore, it is not applicable pursuant to CEQA Guidelines Sections 15168 and 15180. Furthennore, even if the prior FEIR were applicable, the Project's significant impacts and changed circumstances and conditions would require review pursuant to CEQA Guidelines Section 15168.

VII. Conclusion

Accordingly, the CCAC should recommend that the CCDC reconsider the map waiver apphcation, deny the waiver, and require preparation of an EIR prior to proceeding with any aspect ofthe Project.

Thank you for your consideration of these comments.

Sincerely,

DeLano

1 Although the October 10, 2007 CCDC StaffReport mentions an "Environmental Secondary Study," no such study was made available until well after the October 17, 2007 CCDC meeting. To date, we have received only a Secondary Study that lacks any signature from CCDC staff. It is unclear whether this is the final study. LAW OFFICES OF EVERETT L. DELANO 220 W. Grand Avenue Escondido, California 92025 (760)510-1562 (760) 510-1565 (fax)

June 3, 2008

VIA FACSIMILE & U.S. MAIL

Brad Richter Principal Planner Centre City Development Corporation 225 Broadway, Suite 1100 . SanDiego, CA 92101

Re: Planning Commission Consideration of 777 Beech Street

Dear Mr. Richter:

This letter is submitted on behalf of the El Cortez Homeowners Association to provide comments regarding the proposed high-rise project next to the El Cortez ("Project"). Please ensure that copies ofthis letter are provided to ihe members of the Planning Commission prior to their meeting this Thursday.

I previously provided comments to you regarding the Project; however, those letters are not included in Attachment G to your report to the Planning Commission. Accordingly, attached to this letter, and incorporated by reference, is a copy of one of my letters regarding the Project, a January 22, 2008 letter prepared in anticipation ofa meeting ofthe CCAC. I would hope and anticipate that Planning Commission members are provided with all relevant infonnation regarding the Project, including the conespondence from the public.

Your May 27, 2008 report to the Planning Commission asserts that the Agreement Affecting Real Property ("AARP") "does not say that any further development is prohibited until" June of 2025. This is inconect. The AARP limits use ofthe "Property" to specified uses, which it specifically identifies. Furthermore, "Property" is defined in the AARP to mean the entire City block. Accordingly, the use ofthe entire block is limited to that which is specifically spelled out in the AARP. Using the "Property" for anything other than that specified in the AARP is specifically prohibited by the AARP.

There is a further applicable restriction in the AARP. The AARP allows.for consideration and approval ofa "material alteration or modification" ofthe "Improvements" on the Property. The Improvements are specifically listed in the AARP. Notably, the Project does not involve a change to an on-site improvement; it involves

1 Ironically, the sentence from the AARP limiting uses ofthe City block is quoted in the same paragraph on page 5 ofyour report wherein you assert that further development is not prohibited. Comments re 777 Beech Street June 3, 2008 Page 2 of 2

demolition of existing improvements and replacement with entirely new stmctures. For these reasons, and as discussed in my January 22nd letter, approving the Project would be in direct violation ofthe AARP's restrictions.

My January 22n letter discussed other problems, including why the environmental analysis is insufficient and why the Map Waiver is ineffective.

Accordingly, the El Cortez Homeowners Association requests that the Commission recommend denial ofthe Project. Thank you for your consideration of these comments.

Sincerely,

/erett DeLano

Enc; Letter to Brad Richter from Everett DeLano (January 22, 2008) cc (w/ enc): Planning Commission Secretary, fax: (619) 321-3200 LAW OFFICES OFEVERETTL. DELANO 220 W. Grand Avenue Escondido, California 92025 (760)510-1562 (760) 510-1565 (fax)

June 4, 2008

VIA FACSIMILE & U.S. MAIL

Brad Richter Principal Planner Centre City Development Corporation 225 Broadway, Suite 1100 SanDiego, CA 92101

Re: Planning Commission Consideration of 777 Beech Street

Dear Mr. Richter;

This letter is submitted on behalf of the EI Cortez Homeowners Association to provide additional comments regarding the proposed high-rise project next to the EI Cortez ("Project"). Please ensure that copies ofthis letter are provided to the members of the Planning Commission prior to their meeting this Thursday.

The Califomia Environmental Quality Act ("CEQA"), Public Resources Code § 21000 etseq., requires preparation of an initial study, followed by preparation of either a negative declaration or Environmental Impact Report ("EIR") for the Project. The Project and its impacts were not analyzed in the Downtown Community Plan FEIR. Indeed, the Downtown Community Plan FEIR is extremely general and provides no discussion about the impacts ofa stmcture built next to the El Cortez. Accordingly, the Downtown Community Plan FEIR does not address the Project's impacts pursuant to CEQA Guidelines Sections 15168 and 15180. Furthermore, even if it were applicable, the Project's significant impacts and changed circumstances and conditions would require review pursuant to CEQA Guidelines Section 15168.

CEQA is essentially "an environmental full disclosure statute, and the EIR is the method ... [for] disclosure ..." Rural Landowners Assn. v. City Council (1983) 143 Cal, App. 3d 1013, 1020. An EIR's purpose is "to provide pubhc agencies and the public in general with detailed infonnation about the effect which a proposed project is likely lo have on the environment." Pub. Res. Code § 21061. The EIR is the "heart of CEQA," CEQA Guidelines § 15003(a), and "protects not only the environment but also informed self-government." Citizens of Goleta Valley v. Board ofSupervisors (1990) 52 Cal.3d 553, 564. Its purpose is "lo alert the public and its responsible officials to environmental changes before thev have reached the ecological points of no return." County ofInyo v. Yorty (1973) 32 Cal. App. 3d 795, 810 (emphasis added). The Project is likely to lead to several significant impacts. Comments re 777 Beech Street June 4, 2008 Page 2 of 4

CEQA requires preparation of an Initial Study unless:

(1) The activity does not involve the exercise of discretionary powers by a public agency; (2) The activity will not result in a direct or reasonably foreseeable indirect physical change in the environment; or (3) The activity is not a project as defined in Section 15378.

CEQA Guidelines § 15060(c). None of these exceptions apply here. "If there is a possibility the project may have a [significant impact on the environment], the local agency must conduct an initial threshold study." Christward Ministry v. Superior Court (1986) 184 CaLApp.3d 180, 186.

The Project is likely to lead to impacts to the historic El Cortez, CEQA requires preparation of an EIR whenever a project will cause a substantial adverse change to a historic resource. CEQA Guidelines § 15064.5. Among other things, a resource is considered historic if it:

(A) Is associated with events that have made a significant contribution to the broad pattems of California's histoiy and cultural heritage; (B) Is associated with the lives of persons important in our past; (C) Embodies the distinctive characteristics of a type, period, region, or method of constmction, or represents the work of an important creative individual, or possesses high artistic values; or (D) Has yielded, or may be likely to yield, information important in pre- history or histoiy.

Id. § 15064.5(a)(3). The Project would dramatically affect the El Cortez and, as such, the Project's impacts, and potential altematives and mitigation, must be considered.

The Project is likely to lead to geologic and related impacts. Indeed, a January 30, 2004 "Report of Earthquake Fault Hazard Study" (available in the City's files and ' hereby incorporated by reference) cautioned that additional evaluation and testing were necessary "prior to design and constmction."

The Project is likely to lead to noise impacts in the area, including to nearby residences. This is particularly so during constmction ofthe Project.

The Project is likely to lead to significant impacts to land use and aesthetics. Oro Fino Gold Mining Corp. v. County ofEIDorado (1990) 225 Cal. App. 3d 872, 884. The Project's attempt to mimic the historic El Cortez with a modem design will have a dramatic impact on the area, including views ofthe El Cortez. The Project is inconsistent with coinmunity plans and the City's General Plan. Even the staff report acknowledges inconsistencies with the 1993 Cortez Focus Plan. Comments re 777 Beech'Street June 4, 2008 Page 3 of4

The Project could lead to impacts to traffic and parking impacts not adequately analyzed in the Downtown Community Plan FEIR. The presence of existing traffic problems only serves to heighten the need to prepare an EIR. See Los Angeles Unified School District v. City ofLos Angeles (1997) 58 CaLApp.411" 1019, 1025.

The Project is likely to lead to significant impacts to air quality. The Downtown Community Plan FEIR is insufficient. Assumed compliance with air emission requirements does not ensure that impacts will not be significant. Kings County Farm Bureau v. City ofHanford {1990) 221 CaI.App.3d 692, 718.

The Project is likely to lead to water quahty impacts.

The Project is likely to lead to water supply impacts. There is no showing ofthe adequacy of water supply for the Project. Santa Clarita Organizationfor Planning the Environment v. County ofLos Angeles.(2003) 106 Cal.App.4th 715, 721-22. The Downtown Community Plan FEIR also fails to analyze the impacts associated with obtaining an adequate supply of water. See Save Our Peninsula Comm. v. Monterey County Bd. OfSupervisors (2001) 87 Cal.ApM* 99, 134

The Project may have growth inducing impacts. The Project could lead to constmction of other projects in the area, including near the historic El Cortez. These issues should be analyzed. Stanislaus Audubon Society v. County ofStanislaus (1995) 33 CaL App. 4*144, 153.

The Project, in concert with other activities, is likely to lead to significant cumulative impacts. "Environmental considerations do not become submerged by chopping a large project into many little ones - which cumulatively may have disastrous consequences." Bozungv. LAFCO (1975) 13 CaL3d 263, 283 - 84.

The Downtown Community Plan FEIR acknowledges significant impacts in several areas, yet no additional analysis is provided to consider alternatives and mitigation for those impacts.

There is no showing that the Downtown Community Plan FEIR was submitted as required by CEQA Guidelines Section 15180.

There is no showing that the proposed Project approval documents adequately incorporate the mitigation required by the Downtown Community Plan FEIR.

Deferring the preparation of mitigation is improper under CEQA, except in limited circumstances where "practical considerations prohibit devising measures early in the planning process (e.g., at the general plan amendment or rezone stage)." Sacramento OldCityAssn. v. City Council ofSacramento (1991) 229 Cal. App. 3d 1011, 1028; see also CEQA Guidelines § 15126.4(a)(1)(B). Comments re 777 Beech Street June 4, 2008 Page 4 of 4

Accordingly, the EI Cortez Homeowners Association requests that the Commission recommend denial ofthe Project, requiring preparation of adequate environmental analysis before proceeding. Thank you for your consideration of these comments.

EveretrDeLano cc: Planning Commission Secretary, fax: (619) 321-3200 Everett L. DeLano, III (Calif. Bar No. 162608) M. Dare DeLano (Calif. Bar No. 196707) LAW OFFICES OF EVERETT L. DeLANO III 220 W. Grand Avenue Escondido, Califomia 92025 (760)510-1562 (760) 510-1565 (fax) Attorneys for Plaintiffs

10 SUPERIOR COURT OF THE STATE OF CALIFORNIA

11 COUNTY OF SAN DIEGO, CENTRAL DIVISION

13 EL C ORTEZ OWNERS ASSOCIATION, a 1 C ase No. GIC873710 nonprofit corporation; BARRY BRUINS, 14 DEBORAH BRUINS, ROBERT DAMERON, TINA DAMERON, BRIAN LESK, HEATHER CLASS ACTION 15 FAUCHER, KARYN KEESE, and LAYLA DIPP individuals and class representatives. 16 MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN SUPPORT OF 17 PLAINTIFFS' MOTION FOR SUMMARY vs. JUDGMENT OR, IN THE ALTERNATIVE, 18 SUMMARY ADJUDICATION CENTRE CITY DEVELOPMENT 19 CORPORATION, a public nonprofit Date: October 16, 2008 corporation; REDEVELOPMENT AGENCY OF Time: 1:30 p.m 20 THE CITY OF SAN DIEGO, a public body; Dept.: 64 CITY OF SAN DIEGO, a public body corporate Judge: Honorable William R. Nevitt, Jr. 21 and politic; JSD 2, LLC; JSD 1, LLC; ABAC #2, LLC; Janopaul Block S.D. No. 1, LLC; JOE W. Action Filed: October 11, 2006 22 SKILLMAN; KATHI BALLANTYNE- Trial Date; Not Set SKILLMAN; KEVIN COTTRELL; JOYCE 23 GALLINA; THOMAS GALLINA; ABAC #1, LLC; GARY LONDON; TROY 24 CHRISTIANSEN; and DOES 1 through 20, inclusive. 25 Defendants, 26

21-

EI Cortez Owners Assoc, v. CCDC Memorandum ofPointsand Authorities in Support ofPlaintiffs' Motion for Summary Judgment TABLE OF CONTENTS 2 INTRODUCTION 1 3 STANDARD OF REVIEW... 2 4 FACTUAL BACKGROUND 2 5 I. Historv ofthe Propertv 2 . 6 II. TTie Dispute Between the Parties 4 7 III. Statement ofthe Case 6 8 ARGUMENT ....: 7 9 I. Plaintiffs are Entitled to Declaratory Relief. 7 10 A. Declaration Number 1: The Development ofa New Building or Other New 11 Use on the El Cortez Site Prior to June 30. 2025 Would Violate the 12 Terms of tlie AARP 8 13 1. The AARP Prohibits Anv New Building or Infrastmcture allhe

14 El Cortez Site Until June 30. 2025 1 .....8 15 2. The Proposed Proiects Are Not Merely Modifications of Improvements 16 on the El Cortez Site · 9 17 B. Declaration Number 2: The Restrictive Covenants Contained in the AARP IS Run With the Land and Bind All Cunent Owners ofthe El Cortez Site 10 ,19 1. The Restrictive Covenants Contained in the AARP Run With the Land 10 20 a) Both the Land Burdened and the Land Benefited Are Described 21 in the AARP.... 11 22 b) The AARP Expressly States it is Binding on Successive Owners 12 23 c) The AARP Relates to the Use. Repair. Maintenance and 24 Improvement of Land 13 25 d) The AARP is Recorded .....13 26 2. Plaintiffs Are Successors-in-interest to JBSD 13 27 C. Declaration Number 3: Even If the Covenants in the AARP Do Not Run With the 28 Land. Thev Are Enforceable 14

El Cortez Owners Assoc, v. CCDC , Page i Memorandum ofPoints and Authorities in Support of Plaintiffs' Motion for Summary Judgment 1 1. The Terms of the AARP Are Enforceable as Equitable Servitudes 14 2 2. The AARP is Enforceable Under General Principles of Contract Law 16 3. D. Declaration Number 4: Anv Amendment to the AARP, or Anv Separate 4 Agreement with Terms Inconsistent with the AARP's Restrictions on 5 Development Would be Void Unless All Cunent Owners ofthe Property 6 Agree to That Amendment or Separate Agreement 17 7 II. Plaintiffs are Entitled to Injunctive Relief. ..18 8 A. Defendants Should be Enjoined From Processing anv Approvals of a Proiect That 9 Would be Inconsistent With the Terms ofthe AARP 18 10 1. Defendants are likely to violate Plaintiffs' rights under the AARP 18 11 2. Monetary Damages Would be Difficult to Ascertain and Would not 12 Adequately Compensate Plaintiffs 18 13 ^r\-Mr^i Ticir^M 1 o v^w i i V--.U V^UMV^J i -.,· · -- - l y 14

El Cortez Owners Assoc, v. CCDC Page ii Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment TABLE OF AUTHORITIES CASES i Aguilarv. Atlantic Richfield Co. (2001)25 031.4*826 2 American Bldg. Maintenance Co. v. Indemnity Ins. Co, 214 Cal 608 13,17 Anthony v. Brea Glenbrook Club (1976) 58 Cal. App. 3d 506 10 Barnes v. Western Pioneer Ins. Co. 151 Cal. App. 2d 669 17 California Concrete Co., Inc. v. Beverly Hills Savings and Loan Association {1989) 215 Cal. App. 3d 260 13 Calvi v. Bittner (1961) 198 Cal.App.2d 312 11 10 Citizensfor Covenant Compliance v. Anderson (1995) 12 Cal. 4th 345 ....10,14,15 11 Carlson, Collins, Gordon & Bold v. Banducci (1967)257 Cal. App. 2d 212 17 12 Colony Hill v. Ghamaty (2006) 143-Cal.App.4th 1156 15 13 Committee to Save Beverly Highlands Homes Ass 'n v. Beverly Highlands Homes Ass 'n 14 (2001) 92 Cal.App^ 1247 10,14 15 Eastern-Columbia, Inc. v. System Auto Parks, Inc. (1950) 100 Cal.App.2d 541 16 16 Foldenv.Lobrovich (1959) 171 Cal. App. 2d 627 16 17 Hannulav . Hacienda Homes (1949) 34 Cal 2d 442 ;..14 18 Isaacs v. Huntington Mem. Hosp. (1985) 38 CaJ.3d 112 2 19 Kapnerv. Meadowlark Ranch Ass'n (2004) 116 CalApp^ 1182 11 20 Nahrstedt v. Lakeside Village Condominium Association, (1994) 8 Cal.4 361 14 21 Oceanside Community Assoc, v. Oceanside LandCo. (1983) 147 Cal.App. 3d 166 12, 16 22

23 Perez v.Sutter St. Partners (1990) 222 Cal. App. 3d 938 13

24 Riverside Rancho Corp. v. Cowan (1948) 88 Cal. App. 2d 197 17

25 Southern California Edison Co. v. Sup. Court (Energy Development & Construclion Corp.) th 26 (1995)37Cal.App.4 839 : 2

27 Wellenkampv. Bankof America (1978)21 Cal.3d 943 7

EI Cortez Owners Assoc, v. CCDC Page iii Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment STATUTES AND OTHER AUTHORITY Cal. Civil Code §1213 '....14

3 Cal. Civil Code §1215 .- , 14 4 Cal. Civil Code § 1460 .' 10 5

6 Cal. Civil Code §1468..... '. 11, 12

7 Cal. Civil Code §1550 16

8 Cal. Civil Code §1638 ." 16 9 Cal. Civil Code §1639 16 10

11 Cal. Civil Code §3383 '..... , 19

12 Cal. Code Civ. Proc. § 526(a) 18

El Cortez Owners Assoc, v. CCDC Page iv Memorandum of Points and Authorities in Support ofPlaintiffs' Motion for Summary Judgment INTRODUCTION Ten years ago. Defendant Janopaul Block SD No. 1, LLC ("JBSD") purchased the entire City block that contains the historic El Cortez Hotel (the 'El Cortez Site"). Interested in refurbishing the hotel, JBSD obtained an almost $6 million loan from Defendant Redevelopment Agency ofthe City of San Diego ("Redevelopment Agency"). Simultaneous with the loan agreement, the parties entered into an 6 Agreement Affecting Real Property (the "AARP"), which was recorded on October 12, 1999 and which 7 promised that the residential units, lobby space, "Don Room," commercial space, parking areas, 8 landscaping and amenities ofthe El Cortez Hotel would be protected and the entire El Cortez Site would 9 limited only to those uses until June 30, 2025. The AARP also provided that it would apply to successors

10 in interest. In 2004, JBSD and the Redevelopment Agency entered into an agreement allowing the

11 conversion ofthe apartments in the El Cortez Hotel to condominiums.

12 Plaintiffs purchased units in the hotel; however, subsequent to their purchase. Defendants have i -i considered and pursued developiiicnt oi uuiiuings aiiu improvements on tue jj-i ^ortez oite, m uirect 14 contravention ofthe limitations found in the AARP. Defendants claim they are free to ignore the

15 AARP's limitations on additional development and assert that Plaintiffs have no rights under the AARP.

16 Plaintiffs, however, believe that as successors in interest to the AARP, they have the right to enforce its

17" terms and to ensure protection ofthe El Cortez Site. The AARP's promises that no additional uses

16 would occur on the El Cortez Site until 2025 should be respected. Defendants should not be allowed to

19 create deals in violation of those restrictions.

20 By this motion, Plaintiffs seek summary judgment, or summary adjudication, as to their rights. 21 Specifically, Plaintiffs seek, by their first cause of action, ajudicial declaration as to the rights and duties 22 under the AARP ofthe parties to this litigation. By their second cause of action. Plaintiffs seek an 23 injunction to prevent Defendants from violating Plaintiffs' rights under the AARP. This matter may be 24 appropriately decided by summary judgment, or summary adjudication, because there are no genuine 25 issues of material fact. 26 Accordingly, Plaintiffs request the Court grant Plaintiffs' motion for summary judgment or, in 27 the altemative, for summary adjudication, as to the two causes of action in the Third Amended 28 Complaint.

El Cortez Owners Assoc, v. CCDC Page 1 Memorandum ofPoints and Authorities in Support ofPlaintiffs' Motion for Summary Judgment STANDARD OF REVIEW 2 Pursuant to Code of Civil Procedure Section 437(c), a moving party "is entitled to summary 3 judgment or, in the altemative, summary adjudication of issues when the evidence in support.of the 4 moving party establishes that there is no triable issue of fact and that the moving party is entitled to a 5 judgment as a matter of law." Isaacs v. Huntington Mem. Hosp. (1985) 38 Cal.3d 1.12,134. The moving 6 party ''bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to 7 judgment as a matter of law." Aguilar v. Atlantic Richfield Co. (2001) 25 Cal^ 826, 850. 8 Summary adjudication is appropriate where there may be some triable issues of feet, but it has 9 been established that there is no defense to one or more causes of action. Code Civ. Proc. §437(f)(l). 10 Summary adjudication is proper in a declaratory relief action, even ifthe controversy between the parties ii spills over into other causes of actioa Southern Califomia Edison Co. v. Sup. Court (Energy 12 Development & Construction Corp.) (1995) 37 Cal.App.4*839, 845. 13 FACTUAL BACKGROUNn 14 I. Historv ofthe Propertv 15 The historic El Cortez Hotel was originally constmcted in downtown San Diego in 1927. 16 Declaration of Deborah Bruins in Support of Plaintiffs' Motion for Summary Judgment or, in the 17 Altemative, Summary Adjudication ("Bruins Dec"), Ex. 8 at 8-12. The entire City block containing 19 the El Cortez Hotel was entered in the National Register of Historic Places on January 17, 2002 by the 19 United States Department of Interior. Request for Judicial Notice in Support of Plaintiffs' Motion for 20 Summary Judgment or, in the Altemative, Summary Adjudication ("RJN"), Ex. 9 at 9-1 & 9-20. The 21 Department of Interior explained in part: "Designed in a Spanish Colonial Revival or Spanish 22 Renaissance architectural style, the building is situated diagonally on the site to take advantage ofthe ·23 sweeping views of San Diego's downtown and harbor." RJN, Ex. 9 at 9-5. The Department of Interior 24 found that the El Cortez Hotel "qualifies for the National Register of Historic Places.. .as a property 25 which embodies the distinctive characteristics ofa type, period, and method of Spanish Colonial 26 Revival or Spanish Eclectic constmction, the only one of its kind designed in San Diego by the noted 27 Southern Caiifomia architectural firm of Walker & Eisen." RJN, Ex. 9 at 9-9. The Department of

EI Cortez Owners Assoc, v. CCDC Page 2 Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment 1 Interior designated the entire City block containing the El Cortez Hotel, explaining that it was intended 2 to "encompass the building and the site on which it is located." RJN, Ex. 9 at 9-20.' 3 The El Cortez Hotel is situated within the 1,466-acre Centre City Redevelopment Project Area

4 established in 1992 by the Redevelopment Agency to address redevelopment in the downtown area.

5 Bruins Dec, Ex. 15 at 15-8 & 15-9. Established bythe San Diego City Council, the Redevelopment

6 Agency is designed to order to alleviate conditions of blight in older, urban areas ofthe Gity. Bruins 7 Dec, Ex. 15 at 15-7. 8 In June of 1997, JBSD purchased the El Cortez Site, the block bound by Ash and Beech Streets 9 and 7th and 8th Avenues. RJN, Ex. 1; RJN, Ex. 5 at 5-8; Bruins Dec, Ex. 5 at 5-2 & 5-5. Over the 10 course ofthe next few years, JBSD and the Redevelopment Agency entered into a series of agreements

11 related to the redevelopment of the El Cortez Site. At the time the agreements were executed, both

12 JBSD and the Redevelopment Agency owned real property within the Centre City Redevelopment

13 Projea Area. RJN, Exs. 1, 6 & 7. In July of 1998, they entered into a Rehabilitation Loan Agreement,

14 which provided a S5.85 million loan from the Redevelopment Agency. RJN, Ex. 2; Bruins Dec, Ex. 5

15 at 5-2. The stated purpose ofthe Rehabilitation Loan Agreement was to "effectuate the

16 Redevelopment Plan for the Centre City Redevelopment Project ... by providing part ofthe financing

17 for the rehabilitation ofthe historic El Cortez Hotel... located within the Centre City Redevelopment

18 Project area." RJN., Ex. 2 at 1, §101.

19 JBSD and the Redevelopment Agency also entered into the AARP, which was recorded on 20 October 12, 1999 against the El Cortez Site. RJN, Ex. 3 at 3-9; Bruins Dec, Ex. 5 at 5-5; Bruins Dec, Ex.

21 8 at 8-12. The AARP provides that the El Cortez Site shall be used "only for the development pennitted

22 and the uses specified ...." RJN, Ex. 3 at 3-2, §l(a). It lists the development and uses as restricted to: "85

23 residential apartment units, lobby space, the Don Room special events space 4,000 square feet of

24 neighborhood-serving commercial space, a total of 104 parking spaces in the parking garage beneath the

25 former Annex building and in the tower basement, with landscaping and amenities." RJN, Ex. 3 at 3-2,

26 §1(a). The AARP further provides that, other than the covenants against discrimination, "[e]very other

23 1 The Historic Resources Board ofthe City of San Diego had designated the entire block containing the El Cortez as a Historic Site in 1990. Bruins Dec, Ex. 8 at 8-12.

Ei Cortez Owners Assoc, v. CCDC Page 3 Memorandumof Points and Authorities in Support ofPlaintiffs' Motion for Summary Judgment 1 covenant and condition and restriction contained in this agreement shall remain in effect until June 30, 2 2025 ...." RJN, Ex. 3 at 3-5, §5. The AARP defines the term 'Improvements" as those existing on the El 3 Cortez Site at the time. RJN, Ex, 3 at 3-1, §C. The AARP requires that the Improvements on the Ei 4 Cortez site be maintained "in the same aesthetic and sound condition." RJN, Ex. 3 at 3-2, §l(b). It further 5 states that it is binding on successors and assigns, and provides that "[a]ll conditions, covenants and 6 restrictions contained in this Agreement shall be covenants running with the land." RJN, Ex. 3 at 3-4, §2.

7 The AARP states that it is enforceable "against Owner, its successors and assigns, to or of the Property or

8 any portion thereof or any interest therein." RJN, Ex. 3 at 3-4, §2.

9 In 2004 JBSD entered into an agreement with Redevelopment Agency to amend the AARP to

10 allow for the El Cortez Hotel to be converted from apartments to condominiums. RJN, Ex. 4; Bruins

11 Dec, Exh. 8 at 8-12. JBSD then recorded a condominium plan that included 85 residential

12 condominiums and 11 commercial units, RJN, Ex. 5; Bruins Dec, Ex. 8 at 8-12. Beginning in late

13 lAO/ l TDCT^ + !*,«. r*n'\A fVii ^.-irt.-1rtT>-.irMnTn unite- tr \ c iilicoirnont T tiiT-fnoccrrc Hnun c r^or* T-v ^ i t ^_^"

14 Bruins Dec, Ex. 7; Bruins Dec, Ex. 8 at 8-12. Plaintiffs purchased real property at the El Cortez Site. 15 Bruins Dec, Ex. 7; RJN, Ex. 1. Plaintiff El Cortez Owner's Association represents the owners of 16 condominiums at the El Cortez Site. Bruins Dec, ^3. Owners purchased condominiums defined as real 17 property in Section 1351(f) ofthe Califomia Civil Code. RJN, Ex. 5 AT 5-4. The cunent owners ofthe 18 El Cortez Site include Plaintiffs as well as Defendants JSD 2, LLC, JSD 1, LLC, ABAC #1, LLC, 19 ABAC #2, LLC. and JBSD. Bruins Dec, Ex. 7. There are cunently over 95 owners of real property at 20 the El Cortez Site. Bruins Dec, Ex. 7.

21 II. The Dispute Between the Parties

22 The El Cortez Hotel building is located on the southern two-thirds ofthe Ei Cortez Site, 23 refened to as Lot 1 or Parcel 1. RJN, Ex. 5 at 5-8; Bruins Dec, Ex. 8 at 8-12; Bruins Dec, Ex. 14 at. 24 14-4. In May of 2006, Defendant JSD2, LLC applied for a Centre City Development Permit to build a 25 seven story mid-rise, mixed use residential building with approximately 84 residential units and 26 underground parking. Bruins Dec, Ex. 10 at 10-1 & 10-2. This new building was proposed for Lot 2 27 or Parcel 2, the area ofthe El Cortez Site adjacent to the hotel building, which contains a swimming 28 pool, tenace and underground parking. Bruins Dec, Ex. 10 at 10-1 & 10-2.

El Cortez Owners Assoc, v. CCDC Page 4 Memorandum ofPoints and Authorities in Support ofPlaintiffs' Motion for Summary Judgment Plaintiffs dispute whether further development on the property is allowed prior to June 30, 2025. City staff has stated that the Redevelopment Agency could enter "into a separate agreement with the current owner of parcel 2, setting forth covenants, conditions, and restrictions applicable to such development, in effect amending the terms ofthe 1999 AARP and 2004 amendment to the AARP with respect to parcel 2." Bruins Dec, Ex. 5 at 5-5. In a May 23, 2006 letter, an attomey representing some ofthe Defendants wrote: "the approval of each ofthe cunent condominium owners or occupants ofthe condominiums in El Cortez.. .would not be necessary in order to amend the Agreement to pennit the planned development." .Bruins'Dec, 9 Ex. 1 at 1. On or about May 25, 2006, a law firm retained by the Redevelopment Agency and CCDC 10 concluded: 'The Agency and the City have no legal or contractual obligation to obtain the consent ofthe 11 El Cortez Homeowners Association or any members ofthe Association or any other person in order to 12 permit the development of Lot 2. The Agency, without the consent ofthe El Cortez Homeowners Associaiioii or aiiy other members ofthe Association or any other person, may enter into a separate

14 agreement with the cunent owner of Lot 2 setting forth covenants, conditions and restrictions applicable

15 to the proposed multifamiiy development on Lot 2, in effect amending the terms ofthe 1999 Agreement.

16 Affecting Real Property as it applies to Lot 2." Bruins Dec, Ex. 2 at 12.

17 On July 5, 2006, attorneys for Plaintiffs El Cortez Owners Association submitted a letter to CCDC 18 pointing out that the condominium owners are successors in interest and as such have rights that restrict 19 the Agency's ability to change the terms ofthe AARP that applies to the El Cortez She. Bruins Dec, Exh. 20 3. The letter concludes: "each condominium owner would need to be a signatory to any amendment to the 21 AARP." Bruins Dec, Ex. 3 at 4. On August 16, 2006, the City Attorney's Office issued a Memorandum 22 of Law to CCDC addressing the issue ofthe authority ofthe Redevelopment Agency to "permit further 23 development on Beech Street under the El Cortez Agreement Affecting Real Property." Bruins Dec, Ex 24 4 at 2. The Memorandum concluded that Redevelopment Agency could permit the development of Lot 2 25 without the consent ofthe El Cortez Owners Association or any other owners of condominiums in the El 26 Cortez. Bruins Dec, Ex. 4 at 2. 27 A September 6, 2006 CCDC staff report asserted: (1) *,the Agency has the sole discretion to 28 approve any changes to the land use restrictions on the block," and (2) "the Board (in making its

El Cortez Owners Assoc, v. CCDC Page 5 Memorandum ofPoints and Authorities in Support ofPlainliffe' MotionforSummary Judgment 1 recommendation) and Agency have the discretion in granting any additional development rights to the 2 property beyond those provided by the AARP." Bruins Dec, Ex. 5 at 5-8. The staff report reasons: 3 "The Agency, if it chose to approve additional development on Parcel 2, would enter into a separate 4 agreement with the cunent owner of Parcel 2 setting forth covenants, conditions and restrictions 5 applicable to such development, in effect amending the terms ofthe 1999 AARP and 2004 amendment 6 to the AARP with respect to Parcel 2." Bruins Dec, Ex. 5 at 5-5. 7 On September 12, 2006, attorneys for Plaintiffs El Cortez Owners Association again wrote to 8 Defendant CCDC. Bruins Dec, Ex. 6. The letter points out that "the terms ofthe AARP expressly state it 9 is a covenant mnning with the land." The letter concludes: 'The AARP cannot be amended without the 10 consent ofthe cunent property owners." Bruins Dec, Ex. 6 at 4. 11 On October 17, 2007, CCDC recommended approval ofa project for Lot 2 that contains 78 12 residential units, over 14,000 square feet of retail/commercial space, and 144 parking spaces in a 12 to

13 IT -* U,,;IJ:„„ tD«,;«„ rva~ x: v io nt T)_i rv . Tni^; ~>A innc tk^ nit-,? nf Co« r^Q.™ tHo^ni*,^

14 Commission voted to recommend approval ofthis project to the Redevelopment Agency. Bruins Dec, 15 f 17. The final approval needed for the project, from the Redevelopment Agency, is scheduled to be 16 considered in September ofthis year. Bruins Dec, f 18. 17 III. Statement ofthe Case 18 This case was filed on October 11, 2006, seeking declaratory and injunctive relief. Subsequent to 19 the Court's ruling on Defendant's Demuner, Plaintiffs amended their complaint to include additional 20 named parties and to add class action allegations. The class has been certified by the Court as: "all 21 owners of real property at block 11 of Bay View Homestead, or Caruthers' Addition, in the City of San 22 Diego, County of San Diego, Stale of California, according to the map thereof Nos. 150 and 254, filed. 23 in the office ofthe County Recorder of San Diego County, January 29, 1873, and August 18, 1871, 24 respectively, except for those owners that are listed as Defendants." Thus, the class consists ofall 25 owners of real property at the El Cortez Site except those listed as Defendants. Default judgments 26 have been entered against Defendants Kevin Gottrell, Joyce Gallina, Thomas Gallina, Gary London, 27 and Troy Christiansen. 28

El Cortez Owners Assoc, v. CCDC Page 6 Memorandum ofPoints and Authorities in Support ofPlaintiffs' Motion for Summary Judgment 1 ARGUMENT

2 Summary Judgment is appropriate in this case because there are no triable issues of material

3 fact. The parties do not disagree as to the facts in this case; they disagree about the legal implications

4 ofthe AARP and its affect on the real property at the El Cortez Site. The AARP prohibits any new

5 development on the El Cortez Site prior to June 30, 2025. The restrictive covenants contained in the

6 AARP are binding on and enforceable by Plaintiffs because they run with the land, they form an

7 equitable servitude, and they are part ofa valid contract. Any purported amendment to the terms of

8 the AARP would be void unless all cmrent owners ofthe El Cortez Site agree to that amendment.

9 I. Plaintiffs are Entitled to Declaratory Relief

10 Plaintiffs request that this Court declare the rights and duties ofthe parties with respect to the

11 AARP and their real property at the El Cortez Site. Third Amended Complaint for Declaratory and

12 Injunctive Relief ^ 35. Actual controversies have arisen and now exist between Plaintiffs and Defendants

13 ..„ A:~.~ *U,, IO^T^I ^'.W.tf, nn A ^uti'an i ififh rae-naM tr t tVi c A A D P in H tKo Cl C^n-rtai Cite A i'ii*4iVio1 1 kftCOlUliit^ UilV JViiWJ 1 JtiiilO H JI\J Vi w-tiWiJ " i tii i WLJ^/WWL LW UIW i u u u uixu uiw i -ix ^njx I.I*,/J i_>in^. J v j v^vjiwitu 14 determination of the rights and duties ofthe parlies is appropriate at this time and under these

15 circumstances so that Plaintiffs may ascertain and preserve their rights. "A complaint for declaratory

16 relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the

17 legal rights and duties'of the parties under a written instrument or with respect to property and requests

18 that the rights and duties ofthe parties be adjudged by the court." Wellenkamp v. BankofAmerica (1978)

19 21 Cal.3d 943, 947.

20 Plaintiffs specifically request that the Court make the following declarations: (1) the

21 development ofa new building or other new use on the El Cortez Site prior to June 30, 2025 would

22 violate the terms ofthe AARP; (2) the restrictive covenants contained in the AARP mn with the land

23 and are binding on all cunent and successive owners ofthe El Cortez Site; (3) the restrictive covenants 24 contained in the AARP are enforceable by Plaintiffs against Defendants; and (4) any amendment to the

25 AARP, or any separate agreement with terms inconsistent with the AARP's use restrictions on

26 development, would be void unless all cunent owners of real property at the El Cortez Site agree to 21 that amendment or separate agreement.

EI Cortez Owners Assoc, v. CCDC Page 7 Memorandum ofPoints and Authorities in Support ofPlainliffs' Motion for Summary Judgment A. Declaration Number 1: The Development ofa New Building or Other New Use on the El Cortez Site Prior to June 30. 2025 Would Violate the Terms ofthe AARP The AARP prohibits any new use on the El Cortez Site until June 30, 2025. Plaintiffs therefore respectfully request that this Court declare that any approval ofa new building or other new use on the El Cortez Site prior to June 30, 2025 would violate the terms ofthe AARP. 1. The AARP Prohibits Any New Building or Infrastructure at the El Cortez Site Until June 30. 2025 The AARP limits development and uses ofthe El Cortez Site: "Owner, its successors and assigns, shall use the Property only for the development permitted and the uses specified in the Loan 10 Agreement and this Agreement, namely, 85 residential apartment units, lobby space, the Don Room 11 special events space, 4,000 square feet of neighborhood-serving commercial space, a total of 104 12 parking spaces in the parking garage beneath the former Annex building and in the tower basement,

13 "r^+'U 1n«<-1<-.<-.nn'i'm-> n-nA n-ma-nitiec il l -in vr-r^nfAtirmo. \i;itn -rwanc T ne«*HnrT tn£» Cf*^vrc>taT'u r\T Tt-»j"t>nr»f o W ILIJ. i.ailUOUU.UJLLig LU1W til liwi.ill.lv J, liii. JJ,! IAWUI uuii w " xi-xx jjxxaxxv ·u.vx'vu.i.^ VJ-IV t^ WA wibU j u * xxn.**x JWi. -J 14 Standards for National Register properties." RJN, Ex. 3 at 3-2, § (l)(a) (emphasis added). The 15 AARP further provides that this "covenant and condition and restriction ... shall remain in effect 16 until June 30, 2025 ...." RJN, Ex. 3 at 3-5, §5. The AARP was amended in 2004 to allow 17 condominium units instead of apartments. RJN, Ex. 4. Any use ofthe El Cortez Site beyond the 18 cunent uses is prohibited until June 30, 2025. 19 Plaintiffs filed this case after CCDC began considering applications for additional development of 20 the El Cortez Site, which included entirely new buildings and uses. The project most recently considered 21 by the City of San Diego Planning Commission consists ofa new 12 to 13 story building, which would 22 include 78 residential condominium units, 14,746 square feet of retail/commercial space, and 144 23 parking spaces. Bruins Dec, Ex. 12 at 12-1. Such development and uses are specifically prohibited by 24 the plain language of the AARP. 25 At the July 24, 2008 Planning Commission hearing regarding the proposed development 26 project, CCDC staff asserted that the AARP did not prohibit Redevelopment Agency approval ofthe 27 apphcation to develop a new building at the El Cortez Site. Bruins Dec, ^17. The project 28 applicant's representative pointed to language in the AARP that allows for Agency approval ofa

El Cortez Owners Assoc, v. CCDC Page 8 Memorandum of Points and Authorities.in Support of Plaintiffs' Motion for Summary Judgment "material alteration or modification" ofthe Improvements in support ofthis position. Bruins Dec, T[17. This position reflects a misguided reading ofthe AARP and an inconect conclusion. The AARP provides: "Owner, its successors and assigns, shall protect, maintain and preserve the Improvements on the Property and obtain approval in writing from Agency prior to any material alteration or modification of such Improvements." RJN, Ex. 3 at 3-2, §l(c). There is no language within the AARP, however, that would allow for any changes to the uses ofthe property beyond those specified in section 1(a). Therefore, while the AARP anticipated that there might be some future modification to the existing Improvements, it completely prohibits any change in the use ofthe El Cortez Site. Adding new residential and commercial uses at the El Cortez Site is not allowed prior

10 to June 30, 2025.

11 2. The Proposed Project is Not Merely a Modification ofthe Improvements on

12 the El Cortez Site

13 The proposed project is not a "material alteration or modification" to an Tmnrovement on the

14 El Cortez Site. The AARP defines the term the "Improvements" to mean those existing on the El

15 Cortez Site at the time of its creation. RJN, Ex. 3 at 3-1, § C. These "Improvements" are specifically

16 listed in Paragraph 1(a) ofthe AARP. Id. at 3-2. The AARP provides that, before any material

17 alteration or modification of an existing Improvement may be undertaken, approval ofthe

18 Redevelopment Agency is necessary. RJN, Ex. 3 at 3-2, § i(c). However, the proposed project

19 would be a new stmcture, not a "material alteration or modification of an existing Improvement.

20 Rather, it would involve demolishing existing Improvements on the El Cortez Site, including a

21 swimming pool, tenace and underground parking garage. Bruins Dec, Ex. 10 at 10-1 & 10-2. It

22 would also require constmction of an entirely new 12 to 13 story condominium building and related

23 infrastructure.

24 Furthermore, even if by some stretch ofthe imagination the demolition of existing

25. Improvements and the constmction of an entirely new development could be classified as a "material

26 alteration or modification," the AARP requires that all the property owners at the El Cortez agree to 27 such a "modification." The AARP provides: "Owner, its successors and assigns, shall.. .obtain approval 28 in writing from Agency prior to any material alteration or modification of such Improvements..." RJN,

El Cortez Owners Assoc, v. CCDC ' Page 9 Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment Ex. 3 at 3-2, § l(c)(emphasis added). This language is clear and unambiguous: it is in the plural. The language ofthe AARP does not allow for one ofthe successors or assigns to seek and receive Agency approval for a modification. Therefore in order for the Agency to give its approval to a material alteration or modification of an existmg Improvement, all the successors to JBSD that cunently own the El Cortez Site would need to seek that approval Currently, only one ofthe many successors in interest is seeking that approval, namely Defendant JSD 2, LLC. Bruins Dec, Exs. 7 & 10. Plaintiffs therefore respectfully request that this Court declare that any approval ofa new building or other use on the El Cortez Site prior to June 30, 2025 violates the AARP. 9 B. Declaration Number 2: The Restrictive Covenants Contained in the AARP Run With 10 the Land and Bind All Cunent Owners ofthe El Cortez Site 11 1. The Restrictive Covenants Contained in the AARP Run With the Land 12 A covenant that runs with the land is a written promise between property owners that is binding 15 on the originai parties thereto and on their successors in interest. Civil Code § 1460. "A covenant is 14 said to mn with the land if it binds not only the person who entered into it, but also later owners and 15 assigns who did not personally enter into it." Citizensfor Covenant Compliance v. Anderson (1995) 12 16 Cai.4th 345, 353 (citations omitted). "The primary characteristic of a covenant running with the land is 17 that both liability and enforceability pass with the transfer ofthe estate." Anthony v. Brea Glenhrook 18 Club (1976) 58 Cal. App. 3d 506, 506. A "covenant running with the land is created by language in a 19 deed or other document showing an agreement to do or refrain from doing something with respect to the 20 use ofthe land." Committee to Save Beverly Highlands Homes Ass 'n v. Beverly Highlands Homes Ass 'n 21 (2001) 92 CaLApM* 1247, 1269.

22 Ordinarily, a covenant between an owner of land and an owner of other land will run with the land 23 so as to create a right or restriction affecting all current andfiitureowners ofthe land if all ofthe following 24 requirements are satisfied: 25 a) the covenantor's land to be affected and the covenantee's land to be benefited is "particularly described" in the instmment containing the covenants (Civil Code §1468(a)); 26 b) the document containing the covenants expressly state the intent to bind successive owners ofthe burdened land forthe benefit ofthe covenantee's land (Civil Code 27 § 1468(b)); c) the covenants relate to the use, repair, maintenance or improvement o£ or 28 payment oftaxes and assessments on the land (Civil Code §1468(c)); and

El Cortez Owners Assoc, v. CCDC Page 10 Memorandum ofPoints and Authorities in Support ofPlaintiffs' Motion for Summary Judgment 1 d) the document containing the covenants is recorded in the office ofthe recorder for each county where the property is located (Civil Code §1468(d)). 2

3 Both parties to the AARP were owners of land at the time the AARP. was executed. RJN, Exs. 1,6 & 7. 4 Furthermore, the AARP meets all ofthe criteria of Section 1468; it thereby creates a covenant that runs

5 with the land. 6 a) Both the Land Burdened and the Land Benefited Are Described in the . 7 , AARP 8 The AARP describes both the burdened and benefited land, satisfying Section 1468(a). The 9 burdened parcel of land is clearly identified in the AARP itself as the El Cortez Site on which the El 10 Cortez Hotel sits. RJN, Ex. 3 at 3-9. This legal description refers to the El Cortez Site. Bruins Dec, 11 Ex. 5 at 5-5; Bruins Dec, Ex. 8 at 8-12. The AARP contains a series of covenants that restrict 12 development and uses of the El Cortez Site. RJN, Ex. 3. 13 The land benefited by the restrictions is specifically described in the Rehabilitation Loan 14 Agreement ("Loan Agreement"), which was incorporated by reference into the AARP. "[A] document 15 need not contain its own legal description to particularly describe land. It is well settled that reference to a 16 previous instmment that describes the land is a sufficient descriptioa" Kapner v. Meadowlark Ranch 17 Ass'n (2004) 116 Cal.App^11182, 1187 (citing Calvi v. Bittner (1961) 198 Cal.App.2d 312, 316; 4 18 Witkin, Summaty of Cal. Law (9th ed. 1987) Real Property, § 153, p. 363). The AARP was entered into in 19 conjunction with a July 1, 1998 Rehabilitation Loan Agreement and December 1, 1998 Implementation 20 Agreement. Those agreements are specifically incorporated by reference into the AARP. RJN, Ex. 3 at 3- 21 1, § D. Therefore, the terms ofthe Rehabilitation Loan Agreement and the Implementation Agreement 22 form part ofthe AARP as if they were recited verbatim in the AARP.

23 The Loan Agreement states: 'The purpose ofthis Agreement is to effectuate the Redevelopment 24 Plan forthe Centre City Redevelopinent Project." RJN, Ex. 2 at 1, § 101. It further states: 'The 25 rehabilitation ofthe Property and Improvements pursuant to this Agreement, and the fulfillment generally 26 ofthis Agreement are in the vital and best interest of the City of San Diego..." RJN, Ex. 2 at 1, § 101. 21 The Rehabilitation Loan Agreement describes the land benefited as the Centre City Redevelopment 28 Project Area. RJN, Ex. 2 at 1, § 103. It states: 'the Centre City Redevelopment Project is located in the

EI Cortez Owners Assoc, v. CCDC Page 11 Memorandum ofPoints and Authorities in Support ofPlaintiffs' MotionforSummary Judgment City of San Diego, California. The exact boundary ofthe Project Area is specifically and legally described in the Redevelopment Plan." RJN, Ex. 2 at 1, § 103. The Redevelopment Plan for the Centre City Redevelopment Project describes the boundaries ofthe Project Area and mcludes a map ofthe Project Area Bruins Dec, Ex, 11 at A-l through A-7. The AARP and the Loan Agreement describe the land burdened and the land benefited. The Ei Cortez Site was burdened with restrictions on development and uses, while land within the Centre City Redevelopment Project Area and the City of San Diego benefited from those restrictions through the preservation ofa historic resource and through adherence to a common plan for the downtown area. b) The AARP Expressly States it is Binding on Successive Owners The express terms ofthe AARP specify that the agreement is to bind successors in interest, fulfilling Section 1468(b). The owner ofthe El Cortez Site entered into the AARP "on behalf of its successors, assigns, and each successor in interest to the property or any part thereof." RJN, Ex. 3 at 3-2 M. The lan^aa^e ofthe AAJRP is clearly designed to apply to successors in interest in the El Cortez

Site. · Paragraph 1 states; "Owner, onbehalf of itself and its successors, assigns, and each successor in interest to the Property or anv part thereof hereby covenants and agrees as follows:" (emphasis added) · Paragraph 1 (a) states: "Owner, its successors and assigns, shall use the property only for the development permitted..." (emphasis added) · Paragraph 1(b) states: "Owner, its successors and assigns, shall maintain the Improvements...." (emphasis added) · Paragraph 1(c) states: "Owner, its successors and assigns, shall protect, maintain and preserve the Improvements..." (emphasis added) · Paragraph 1(e) states: "Owner, its successors and assigns, shall refrain from restncting the rental, sale or lease ofthe Property..." (emphasis added) RJN, Ex. 3 at 3-2 & 3-3. Thus, 'the evidence shows an intention to bind successors by the express terms." Oceanside Community Assoc, v. Oceanside Land Co. (1983) 147 Cal.App. 3d 166, 175. c) The AARP Relates to the Usc. Repair. Maintenance and Improvement of Land The AARP relates to use of land, satisfying Section 1468(c). The AARP Umits development and use ofthe El Cortez site to "85 residential apartment units, lobby space, the Don Room special events space, 4,000 square feet of neighborhood-serving commercial space, a total of 104 parking spaces in the parking garage beneath the former Annex building and in the tower basement, with landscaping and

El Cortez Owners Assoc, v. CCDC Page 12 Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment amenities...." RJN, Ex. 3 at 3-2, §l(a). The AARP also states: "Owner, its successors and assigns, shall maintain the Improvements on the Property in the same aesthetic and sound condition...." RJN, Ex. 3 at 3-2, §l(b). It also contains maintenance requirements, including sweeping of sidewalks and emptying of trash receptacles. Id. d) The AARP is Recorded The AARP was recorded on October 12, 1999 in the San Diego County Recorder's Office, satisfying Section 1468(d). RJN, Ex. 3. Therefore, all the statutory requirements are met, and the restrictive covenants contained in the AARP mn with the land. 2. Plaintiffs Are Successors-in-Interest to JBSD Plaintiffs are successors in interest to JBSD, and therefore are bound by the terms ofthe AARP and are able to enforce its terms. A successor in interest is "one who follows another in ownership or control of piopeily." Black's Law Dictionary; Perez v. Suiter Si. Partners (1990) 222 Cal. App. 5d 958, 948. In the context of real property, a successor in interest is one who buys property from another. Califomia Concrete Co., Inc. v. Beverly Hills Savings and Loan Association (1989) 215 Cal. App. 3d 260,268.

Both the 1999 AARP and the 2004 Amendment were signed by representatives ofthe Redevelopment Agency and JBSD, the then sole owner ofthe El Cortez Site. RJN, Exs. 3 & 4. The AARP applies to the entire El Cortez Site. RJN, Ex. 3 at 3-9; Bruins Dec, Ex. 5 at 5-5; Bruins Dec, Ex. 8 at 8-12. Plaintiffs purchased real property at the El Cortez Site. Bruins Dec, Exh. 7; RJN, Exh. 1. Plaintiff El Cortez Owner's Association represents the owners of condominiums at the El Cortez Site. Bruins Dec, ^3. Owners purchased condominiums defined as real property in Section 1351 (f) ofthe Califomia Civil Code. RJN, Ex. 5; Bruins Dec, Ex. 7. Since each owner ofa condominium in the El Cortez Hotel bought a portion of real property at the El Cortez site, they are each successors in interest to the previous owner ofthe El Cortez Site, JBSD. As successors-in-interest, Plaintiffs essentially stand in the shoes of JBSD. See, e.g., American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1021. Since the restrictions contained in the AARP as discussed above constitute covenants running with the land, they apply to successors-in-

El Cortez Owners Assoc, v. CCDC Page 13 Memorandum ofPoints and Authorities in Support ofPlaintiffs' Motion for Summary Judgment interest and bind all cunent owners ofthe El Cortez Site. The cunent owners include Plaintiffs as well as Defendants JSD 2, LLC, JSD 1, LLC, ABAC #1, LLC, ABAC #2, LLC, and JBSD. Bruins Dec, Ex. 7. There are currently over 95 owners of real property at the EI Cortez Site. Id. C. Declaration Number 3: Even If the Covenants in the AARP Do Not Run With the Land. Thev Are Enforceable Even if the AARP does not form a covenant running with the land, it is enforceable. The AARP restricts the use ofthe El Cortez Site. 1. The Terms ofthe AARP Are Enforceable as Equitable Servitudes "An equitable servitude may be created when a covenant does not run with the land but equity requires that it be enforced." Committee to Save Beverly Highlands Homes Ass 'n v. Beverly Highlands Homes Ass 'n (2001) 92 Cal.App^* 1247, 1248. "Commentors have argued that covenants that run with the land and equitable servitudes should be, or possibly have been, merged into a single doctrine." Citizensfor Covenant Cornpliance, 12 Cal.4 at 354 (citations omitted). The Caiifomia Supreme Court has explained equitable servitudes as follows:

[EJquitable servitudes permit courts to enforce promises restricting land use when there is no privity of contract between the party seeking to enforce the promise and the party resisting enforcement. Like any promise given in exchange for consideration, an agreement to refrain from a particular use of land is subject to contract principles, under which courts tryt o "effectuate the legitimate desires ofthe covenanting parties." {Hannuh v. Hacienda Homes (1949) 34 CaL2d 442, 444 - 45.) When landowners express intention to limit land use, 'that intention should be carried out." {Id. at 444; Epstein, Notice and Freedom of Contract in the Law of'Servitudes (1982) 55 So.Cal.L.Rev. 1353, 1359 ("We may not understand why property owners want certain obligations to run with the land, but as it is their land ... some very strong reason should be advanced" before courts should override those obligations).) . Thus, when enforcing equitable servitudes, courts are generally disinclined to question the wisdom of agreed-to restrictions. Nahrstedt v. Lakeside Village Condominium Association, (1994) 8 Cal4,h 361, 380-81. All purchasers of real property at the El Cortez She had notice ofthe restrictions contained in the AARP. Any conveyance of real property that is recorded, "from the time it is filed with the recorder for record is constmctive notice of the contents thereof to subsequent purchasers..." Cal. Civ. Code §1213. The AARP meets the definition of "conveyance" as it is "an instrument in writing by which ... [an] interest in real property is ... encumbered." Cal Civ. Code § 1215. The AARP was recorded in 1999. RJN, Ex. 3. The property was not converted 'into condominiums until 2004. RJN, Exs. 4 & 5. Since the

EI Cortez Owners Assoc, v. CCDC Page 14 Memorandum ofPoints and Authorities in Support ofPlainliffe' Motion for Summary Judgment ! · AARP was recorded in 1999, well before JBSD sold any portion ofthe EI Cortez Site in 2004, all

2 subsequent purchasers had constmctive notice ofthe covenants and restrictions contained in it.

' 3 Constructive notice "is the equivalent of actual knowledge; i.e., knowledge of its contents is conclusively

4 presumed." Citizensfor Covenant Compliance 12 Cal. 4 a t 345; see also, Id, at 349 ("ifa declaration

5 establishing a common plan for the ownership of property in a subdivision and containing restrictions

6 upon the use ofthe property as part ofthe common plan is recorded before the execution ofthe contract of

7 sale, describes the property it is to govern, and stales that it is to bind all purchasers and their successors,

8 subsequent purchasers who have constmctive notice ofthe recorded declaration are deemed to intend and

9 agree to be bound by, and accept the benefits o£ the common plan; the restrictions, therefore, are not

10 unenforceable merely because they are not additionallv cited in a deed or other document at the time of

11 the sale") (emphasis in original).

12 This Court should apply equitable principles to enforce the restrictive covenants ofthe AARP.

13 "[Ojur social fabric is best presen/ed if courts uphold and enforce solemn written instruments ... that

embody the expectations ofthe parties rather than treat them as 'worthless paper' .... Our social fabric

15 is founded on the stability ofthe expectation and obligation that arises from the consistent enforcement

16 ofthe terms of deeds, contracts, wills, statutes, and other writings. To allow one person to escape

17 obligations under a written instmment upsets the expectations ofall the other parties governed by that

18 instmment ... that [it] will be uniformly and predictably enforced. The salutary effect of enforcing

19 written instmments and the statutes that apply to them is particularly tme in the case ofthe declaration

20 ofa common interest development." Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1171

21 (quoting Nahrstedt, 8 Cal.4* at 383 - 84). Plaintiffs bought their properties with notice that the AARP

22 restricted any further development ofthe property until June 30, 2025. Cal. Civ. Code § 1213.

23 Defendants JSD 1 and JSD 2, LLC likewise had notice ofthe restrictions when they purchased Lot 2

24 ofthe EI Cortez Site. Id.

25 To allow Defendants to violate the restrictive covenants to the detriment ofall the other owners

26 ofthe EI Cortez Site would be unfair to Plaintiffs and would constitute unjust enrichment.

27 "Presumably a purchaser who purchases land knowing it is burdened with a covenant will negotiate for

28 a lower purchase price. To allow the purchaser to receive the benefit ofthe reduced price without the

El Cortez Owners Assoc, v. CCDC Page 15 Memorandum ofPoints and Authorities in Suppon ofPlaintiffs' Motion for Summary Judgment 1 corresponding burden would constitute unjust enrichment at the expense of his neighbor who was 2 relying on the enforcement ofthe servitude." Oceanside Community Association v. Oceanside Land .3 Company (1983) 147 CalAp.3d 166, 176. To allow Defendants to violate those restrictions in order to 4 build another condominium and retail complex would constitute unjust enrichment to the detriment of" 5 all the other owners at the El Cortez Site. 6 2. The AARP is Enforceable Under General Principles of Contract Law 7 In-orderfora contract to be valid, four essential elements must be met: (1) the parties must be 8 capable of contracting; (2) they must give their consent; (3) there must be a lawful object; and (4) there 9 must be sufficient cause or consideratioa Civ. Code § 1550. In this case, all four elements are evident 10 from the AARP itself In interpreting a contract, the "language ofa contract is to govern its interpretation, 11 if the language is clear and explicit, and does not involve an absurdity." CaL Civ. Code § 1638. '·When a 12 contract is reduced to writing, the intention ofthe parties is to be ascertained from the writing alone, if

13 n.i« " o„i *"';·, r*~A* c i ^ o T« tt*;*. nnn n . ^ „·,·+·,·:,--;- — : J .,, , , ,.-,,. .i;..,.:, J -·· - · · - . „pxi,-. Lnjaaiuic "âi- *îv. ûvi^ 9 1w-'^. m uua vaov, uu \.A.u.iii^n- ^VIUCIIVA; icgaiumg uutiyioiauuu Ul LUC 14 AARP should be allowed. If language of an instrument is clear and explicit, the intention ofthe parties 15 must be ascertained from the writing alone, for "parol evidence is admissible only where the language 16 used is doubtful, uncertain, or ambiguous, and only then in cases where doubt appears upon the face ofthe 17 contract." Eastern-Columbia, Inc. v. System Auto Parks, Inc. (1950) 100CaLApp.2d 541, 545; see also 18 Folden v. Lobrovich (1959) 171 Cal. App. 2d 627. 19 The language ofthe AARP is clear and explicit. It provides: "Owner, on behalf of itself and its 20 successors, assigns and each successor in interest to the Propertv or anv part thereof hereby covenants and 21 agrees as follows." RJN, Ex. 3 at 3-2, § 1 (emphasis added). The plain language ofthe AARP makes it 22 clear that the covenants foiiowing this paragraph apply to all subsequent owners ofany part ofthe 23 property Therefore, the covenants contained in the AARP are covenants that bind all the cunent owners 24 ofthe EI Cortez Site. T he language is not ambiguous - these covenants clearly apply to bind successors- 25 in-interest.

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El Cortez Owners Assoc, v. CCDC ' Page 16 Memorandum ofPoints and Authorities in Support of Plaintiffs' MotionforSummary Judgment D. Declaration Number 4: Anv Amendment to the AARP. or Anv Separate Agreement with Terms Inconsistent with the AARP's Restrictions on Development. Would be Void Unless All Cunent Owners ofthe Propertv Agree to That Amendment or Separate Agreement Given the restriction on further uses and development, in order for any additional development to occur prior to June 30, 2025, the AARP would need to be amended to remove this restriction. Defendant CCDC has indicated it is considering "a separate agreement with the cunent owner of parcel 2, setting forth covenants, conditions, and restrictions applicable to such development, in effect amending the terms ofthe 1999 AARP and 2004 amendment to the AARP with respect to parcel 2." Bruins Dec, Ex. 5 at 5-5; Bruins Dec, ^17. A contraa can be modified or amended only "with the assent ofthe parties thereto, provided the same elements essential to the validity ofthe original contract are present." Carlson, Collins, Gordon & Bold v. Banducci (1967) 257 Cal. App. 2d 212, 223; see also, American Bldg: Maintenance Co. v.'jndemmty Ins. Co, 214 Cal 608, 615. "A modification ofa contract can be made only with the consent ofall parties to it." Riverside Rancho Corp. v. Cowan (1948) 88 Cal. App. 2d 197, 208; see also, Barnes v. Western Pioneer Ins. Co. 151 Cal. App. 2d 669, 671. As discussed above. Plaintiffs are successors in interest as contemplated by the AARP. They therefore step into the shoes of JBSD and are bound by the AARP. Furthermore, the AARP is recorded against the entire El Cortez Site.

In order for any amendment or separate contract that changes the terms ofthe AARP to be valid, all owners ofany portion ofthe EL Cortez Site must consent. One ofthe over 95 owners ofthe El Cortez site does not have legal authority to change the terms ofthe AARP. Any contract involving anything less than all owners ofthe El Cortez Site would be void. Similarly, any modification or amendment to the AARP would be void unless all cunent owners agreed to such modification. II. Plaintiffs are Entitled to Injunctive Rehef A. Defendants Should be Enjoined From Processing anv Approvals ofa Proiect That Would be Inconsistent With the Terms ofthe AARP Plaintiffs seek an injunction prohibiting Defendants from pursuing a project that would be inconsistent with the terms ofthe AARP. Injunctive relief is appropriate in situations where a party is

El Cortez Owners Assoc, v. CCDC Page !7 Memorandum ofPoints and Authorities in Support ofPlaintiffs' Motion for Summary Judgment 1 doing or is about to do "some act in violation ofthe rights of another party to the action respecting the

2 subject ofthe action, and tending to render the judgment ineffectual" Code Civ. Proc. § 526(a)(3). It is

3 also appropriate when monetary damages will not adequately compensate plaintiff or the damages are

4 extremely difficult to ascertain. Code Civ. Proc § 526(a)(4) & (5). All of these considerations are

5 applicable to the case at hand.

6 1. Defendants are likely to violate Plaintiffs' rights under the AARP

7 As discussed above, Plaintiffs have rights under the AARP. The AARP restricts the

8 development and uses ofthe El Cortez Site until June 30, 2025, and any new building on the El Cortez

9 Site prior to that date would violate the AARP. The AARP is enforceable by Plaintiffs against

10 Defendants, and any amendment or separate agreement with inconsistent terms would be void without

11 the assent ofall owners ofthe El Cortez Site. The applicant has proposed, and Defendant CCDC has

12 been considering, a range of project proposals for new buildings on the El Cortez Site prior to June 30,

13 2025. Bruins Dec, Ex. 8, at 8-12. CCDC stafflias slaied that ihe Redevelopment Agency could enter

14 into a separate agreement that would effectively amend the terms ofthe AARP. Bruins Dec, Ex. 5 at

15 5-5; Ex. 12 at 12-5 ("because ofthe specific use provisions ofthe AARP, a new covenant agreement

16 between the Agency and Lot 2 owner would be required in the event the proposed project would be

17 approved for this applicant"). Any amendment or separate agreement that purported to allow

18 development prior to June 30, 2025 would violate Plaintiffs' rights, as would any project approvals

19 allowing such development.

20 On July 24, 2008 the Planning Commission recommended approval ofthe Project to the

21 Redevelopment Agency. Bruins Dec, f 17. During the hearing before the Planning Commission, staff

22 informed the Planning Commission that the City Attorney had determined that a new agreement

23 relating to Lot 2 would need to be executed. Bruins Dec, ^[17. The final approval needed for the

24 project, from the Redeveiopment Agency,,is scheduled to be considered in September ofthis year.

25 Bruins Dec, HIS. 26 Ill- ' · 27 l l i - 28 lll

El Cortez Owners Assoc, v. CCDC Page 18 Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment 2. Monetary Damages Would be Difficult to Ascertain and Would not Adequately Compensate Plaintiffs If Plaintiffs' rights were to be violated, and development ofa new building were to occur prior to the date specified in the AARP, Plaintiffs could not be adequately compensated by monetary damages. One aspect of damages might be quantifiable, such as any diminution in property value resulting from the development. However, in addition to this, there are damages that are not quantifiable, such as loss of enjoyment of property, loss ofa view, detriment to the distinct historic value ofthe property, as well as other damages that would be difficult, ifnot impossible, to quantify. Real property is usually deemed "unique," so that injury or loss cannot be compensated in damages. 10 See Civ. Code § 3387 (damages are presumed inadequate for a breach of an agreement to convey real 11 property). Plaintiffs bought a piece of an historic landmark as their home. No amount of money could 12 replace what they stand to lose if that landmark is altered or damaged. 13 Therefore, an injunction prohibiting Defendants from proceeding with uevelopmcm and uses 14 that would be inconsistent with the terms ofthe AARP is necessary to preserve Plaintiffs' rights. 15 CONCLUSION 16 For the foregoing reasons, Plaintiffs respectfully request fhe Court grant summary judgment or 17 summary adjudication in their favor. IS Respectfully Submitted, 19 DATE: August 1,2008 _ _ _ M. Dare DeLano 20 LAW OFFICES OF EVERETT L. DeLANO III Attorneys for Plaintiffs 21

El Cortez Owners Assoc, v. CCDC Page 19 Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment