Legal heat is turned up again after residential and commercial proposal in H.B. is rejected for third time

A renewed legal battle looks likely now that a twice-rejected residential and commercial development proposed for Huntington Beach has been denied a third time.

The City Council voted unanimously Tuesday night to uphold its earlier vote to deny the project proposed for the northeast corner of Beach Boulevard and Ellis Avenue. City officials and community members have argued the development would be ill-suited for the location, despite meeting zoning requirements.

In the wake of Tuesday’s vote, two attorneys representing supporters of the project said they are likely to follow through on litigation threatened earlier.

At the center of the dispute is Corona-based applicant Tahir Salim’s proposed redevelopment of the property at 8041 Ellis Ave. — currently home to a liquor store — into a four-story mixed-use building including 48 residences, 891 square feet of commercial space and three levels of underground parking. The site shares its eastern property line with duplexes and other low-density housing.

The city Planning Commission officially denied the project with a 6-1 vote June 11, with Chairman Pat Garcia dissenting.

During the commission’s initial public hearing in May, member Dan Kalmick compared the plan to build four stories on a 95-foot-wide lot to stuffing “10 pounds of oranges in a 2-pound sack.”

The project has been repeatedly criticized over traffic safety concerns and inadequate vehicle circulation, such as having a right-turn-only driveway in and out of the underground parking garage and no exit onto Beach Boulevard.

In July, Salim modified his proposal to include a “pork chop” raised island median to allow only right-turn entry and exit and prevent illegal left turns. He appealed the Planning Commission’s decision to the City Council.

However, the modification introduced new concerns regarding Fire Department access. The City Council unanimously rejected the proposal Sept. 3.

Californians for Homeownership, a Los Angeles-based nonprofit sponsored by the California Assn. of Realtors, filed a lawsuit in October against the city, claiming Salim’s proposal was illegally denied according to the state’s Housing Accountability Act, also known as the anti-NIMBY law, which is designed to prevent local governments from denying housing projects that comply with zoning rules.

In addition, Kenneth Stahl, an attorney representing Salim as well as another housing organization, Oakland-based California Renters Legal Advocacy and Education Fund, sent the city a letter expressing intent to sue, the city said.

The city agreed in November to reconsider the project amid threats of litigation. The parties agreed to defer further legal action until March to give the city time to reconsider the proposal or hold additional public hearings.

Californians for Homeownership attorney Matt Gelfand sent the City Council a letter before Tuesday’s meeting, laying out the motivation for litigation.

“The city betrayed its own staff and rejected the project,” Gelfand wrote, noting that staff had initially recommended approval. “So we sued the city to send a message to all of California’s cities and counties: It is no longer acceptable to engage in this sort of bait-and-switch zoning.”

Gelfand criticized findings of a traffic analysis by Mark Miller, a traffic operations engineer with Albert Grover & Associates Inc., which stated the project “as proposed will significantly negatively impact the existing roadway conditions adjacent to the project,” specifically noting the intersection of Ellis Avenue and Patterson Lane.

After the council’s renewed denial of the project, Gelfand said Wednesday that “we will be continuing with our lawsuit against the city, which remains pending.”

Stahl delayed filing a lawsuit on behalf of his clients while the city reheard the matter, but in light of Tuesday’s vote, litigation “looks likely,” he said Thursday.

“Clearly the city’s action violates the Housing Accountability Act. Now the discussion is what we are going to do about it,” Stahl said.

Community members weighed in both in favor and against the development before the council voted Tuesday.

“This is literally in my backyard, “resident Pamela McCay told the council. “There are constantly accidents.

“I ask you to uphold your previous decision and not be bullied by an out-of-town developer who throws a tantrum ... and threatens to sue because he didn’t get his way.”

Planning Commissioner John Scandura attended the public hearing to reinforce his earlier vote, saying the “single ingress and egress from a single driveway was inadequate.”

Housing advocates had a different opinion.

“We would argue that this project complied with everything that is within the code. Your own staff said it’s worthy of approval,” said Elizabeth Hansburg, director of People for Housing Orange County. “The reality is that we do have a housing shortage. ... We are going to have to recycle, we are going to have to do infill; it’s not going to be perfect.”

“You cannot worship at the altar of a single-family home and push everything else out,” Hansburg added. “We need you to be brave; we need you to approve new housing projects.”

But Mayor Pro Tem Jill Hardy stood by her earlier opposition to the proposal, saying her “main concerns are fire safety and traffic safety.”

Calling the location “one of the worst intersections we have in our community,” Councilwoman Barbara Delgleize said she’s “very concerned about emergency vehicles. ... The problem is, if you live on the back side of this building, it’s at the very, very, very end. I find that to be very unsafe.”

Stahl commented during the public hearing that “the burden of proof will be on the city to prove a health and safety [hazard].”

City Attorney Michael Gates said Wednesday that the Huntington Beach will continue to defend itself “and its rightful voter-chosen decision-makers — the City Council.”

“The proposed project was deemed a hazard to health and safety by the City Council based upon expert fire safety and traffic review. So we fight,” Gates said in a statement.

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