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HomeMy WebLinkAbout2/26/2020 Item 2, Naficy Wilbanks, Megan From:Babak Naficy < To:Scott, Shawna; Advisory Bodies Subject:545 Marsh Project Attachments:Letter Re 545 Marsh Project.pdf Please see and distribute attached letter Re the 545 Marsh Project on today's Planning Commission Agenda -- Babak Naficy Law Offices of Babak Naficy 1540 Marsh Street, Suite 110 San Luis Obispo, Ca 93401 babaknaficy@sbcglobal.net www.naficylaw.com 805-593-0926 phone 805-593-0946 fax ________________________________________ This e-mail, and any attachments hereto, are intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, or any attachment hereto, is strictly prohibited. If you have received this e-mail in error, please immediately notify the sender by reply e-mail and permanently delete the original and any copy of this e-mail and any printout hereof. 1 1 1540 Mars h Stree t Suite 110 San Lui s Obisp o Califo r nia 93401 ph: 805-593-0926 fax: 805-593-0946 babaknaficy @sbcglobal.net Law O ffice s of B a b a k N a f i c y February 26, 2020 Via Email San Luis Obispo Planning Commission Shawna Scott, Senior Planner sscott@slocity.org advisorybodies@slocity.org Re: PC February 26, 2020 Meeting Item Number 2: 545 Higuera & 486 Marsh Honorable Commissioners. I submit these comments on behalf of San Luis Architectural Preservation (SLAP) in connection with the Planning Commission’s (PC) ongoing review of the 545 Higuera/484 Marsh Street Project (“Project”). As more fully explained below, SLAP contends the City may not lawfully rely on a categorical exemption in this case because the Project will likely cause a significant and substantial adverse impact on historically significant resources in the Project’s vicinity. CEQA exemptions do not apply to a discretionary project that could potentially cause a significant impact and therefor requires mitigation. I urge you to continue the hearing and direct Staff to undertake a more comprehensive and detailed review of the Project’s impacts and potentially feasible mitigation measures and alternatives. The Planning Department has proposed that this project is exempt from CEQA review as a Class 32, in-fill development project. For reasons that are stated below, the Planning Department’s conclusion is wrong. This Project is not exempt because a number of exceptions apply. To begin with, the Project does not come within the scope of the exemption because it does not comply with all applicable rules and regulations. The Project is not exempt also because it may cause a substantial adverse impact on one or more historic resources. Moreover, owing to special circumstances, it can be fairly argued that this Project would have a potentially significant impact on a historic resource. Finally, the Project is not exempt because the proposed conditions of approval and required changes to the Project amount to mitigation measures that are intended to lessen the severity of the Project’s adverse impacts on historic resources. Categorical exemptions are not absolute Categorical exemptions are not absolute. If there is any “reasonable possibility” that a project or activity may have a significant effect on the environment, an exemption is improper. Guideline §15300.2(c); Wildlife Alive v. Chickering, (1976) 18 Cal. 3d 190, 205- 06. Categorical exemptions must be strictly construed to ensure they are applied only to the 2 classes of projects that have been determined not to have a significant impact on the environment. Azusa Land Reclamation Co v. Main San Gabriel Basin Watermaster (1997) 52 cal.App.4th 1165, 1192. There are several “exceptions” to the application of a categorical exemption, three of which apply here:  There is a reasonable possibility of a significant effect on the environment due to unusual circumstances. Guideline §15300.2(c);  Significant cumulative impacts from projects of the same type will result. Guideline §15300.2(b);  Historical Resources. A categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource. Guideline §15300.2(f). A project is not exempt from CEQA where the agency’s conclusion that the project would not result in any potentially significant environmental impacts is based on consideration of mitigation measures. In other words, if mitigation measures are needed to avoid or lessen potentially significant impacts, then at a minimum, a mitigated negative declaration must be prepared. See, Kostka and Zischke, Practice Under the California Environmental Quality Act, 2nd Ed., at §5.75, citing Azusa Land Reclamation Co v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1200. The Project is not exempt from CEQA because it may cause a substantial adverse change in the significance of historical resources This Project subject is not exempt from CEQA because the Project may cause a substantial adverse change in the significance of “historic resources” as the term is defined under CEQA. According to the April 2019 SWCA Environmental Consultants’ Historic Preservation Report (“Report”), a number of historically significant buildings may be adversely affected and changed by the Project. According to the Report: Five parcels in the immediate project area are occupied by seven buildings and one cultural landscape included on the City' s Master List of Historic Resources and one parcel by one building (the Wilkinson House) included on the Contributing List (Table 1). Of these, one property- the Jack House- is also listed on the NRHP. One additional property within the neighborhood- the c 1887 Pinho House- is also included as an example of early residential development typical of the neighborhood.(Report p. 7). “Historic structures in the immediate vicinity include the Pollard House (adjacent to the site, to the southwest), the Norcross House ( across Higuera Street, to the north), and the Jack House and Gardens ( approximately 100 feet to the east).” Consistent with the Report, the staff report correctly identifies the Project’s vicinity as containing a mosaic of historically significant buildings. 3 The Report itself amounts to substantial evidence supporting a fair argument that the Project “may cause a substantial adverse effect” on several historic resources. Regarding the Pollard House, which is located immediately adjacent to the Project site, the Report explains The adjacency, height, mass, and design (and, to a lesser extent, the materials) of the proposed development (especially of the building at 545 Higuera Street) would completely dominate the neighboring Pollard House and would greatly impact its integrity of setting, feeling, and association. (Report at p. 19). Likewise, concerning the Norcoss House, the Report explains: Along with the Pollard House, the Norcross House will bear the brunt of project impacts to the integrity of setting, feeling, and association. Considering that the Norcross House has already been subject to a slight loss of integrity of location ( from being moved closer to Higuera Street) and a severe loss of integrity of design, materials, workmanship, setting, feeling, and association from its own on-site redevelopment project, the impacts from the proposed project will constitute additional cumulative impacts. (Report at p. 20). The report also points out cumulative impacts to the Pinho House, which, like the Norcross House, has been relocated on its lot and altered in its fabric (e.g., with the addition of safety railing to the Italianate porch) by development. The Jack House will also be affected by the Project, but not to the same extent: To the extent that these partial views [of the Project] introduce large- scale modern elements at very close range to the NRHP- listed historical property, the visual intrusion would constitute a loss of integrity probably only minor) to the Jack House setting, feeling, and association but would not impair its integrity of location, design, materials, or workmanship. (Report at p. 22). In a September 3, 2019 letter to Shawna Scott, the Report’s author, Paula Carr, addressed the developer’s response to the Report’s recommended mitigation measures: “These clarifications go a long way, in my mind, toward meeting my earlier recommendations for improving compatibility” (italics added). Significantly, she did not conclude that the proposed mitigation measures would reduce the Project’s impact on historic resources to a less than significant level, as was claimed by the City in your Jan. 8th hearing. In any event, as explained below, any evaluation of the adequacy of any proposed mitigation measures would be inappropriate in the context of an exemption. While the Report states the cultural resources in question would retain their eligibility for Master List status, that is not CEQA’s definition of significant impact, nor is that interpretation supported 4 by case law. The only relevant issue is that the inclusion of recommended mitigations is a clear indication that the Project impacts are significant. Accordingly, because individually and in the aggregate, the Project as proposed may cause a substantial adverse change in the significance of these historical resources, the Project cannot be exempt from CEQA review. Please also refer to the comments of James Papp, PhD, concerning the adverse impacts of the Project on the historic resources identified in the Report. Owing to Special Circumstances, the Project may have a significant adverse impact on historic resources. In addition to the “Historic Resource” exception, the “unusual circumstances” exception also precludes the City’s reliance on a CEQA exemption for this Project. According to the unusual circumstances exception, an agency may not approve a project in reliance on a categorical exemption if, owing to special circumstances, it can be fairly argued the project would have one or more significant impact on the environment. Here, the circumstances of this Project are highly unusual in that the Project is located in the midst of a several historically significant resources which the Project may adversely affect. To prove that an exemption does not apply owing to the “unusual circumstances,” a “challenger must prove both unusual circumstances and a significant environmental effect that is due to those circumstances. In this method of proof, the unusual circumstances relate to some feature of the project that distinguishes the project from other features in the exempt class.” [] “Once an unusual circumstance is proved under this method, then the ‘party need only show a reasonable possibility of a significant effect due to that unusual circumstance.’ Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, 819–820 (“Walters”). The Project presents unusual circumstances because, as set forth above, the Report clearly indicates that there are ten mandatory and presumptive historic resources in the immediate Project area, including the NRHP Jack House and Wash House; the Master List Jack Garden and Carriage House, Kaetzel House, Pollard House, Norcross House, and Golden State Creamery; the Contributing List Wilkinson House; and the Pinho House. The proximity of such a large number of historically significant resources that could potentially be adversely affected by the Project is an unusual Project feature that is unlike any typical infill project to which the Class 32 exemption would apply. There is no evidence to suggest a typical infill project would be located in the vicinity of, and be capable of causing adverse impacts on a substantial number of historically significant structures. The Resource agency [the author of CEQA Regulations] cannot have intended to exempt infill projects capable of causing substantial adverse impacts on nine historically significant structures and one cultural landscape. Comm. to Save the Hollywoodland Specific Plan v. City of Los Angeles (2008) 161 Cal. App. 4th 1168, 1187(unusual circumstances exception applied where the 5 project --consisting of the placement of a 42 inch fence on a unique and historic wall-- created an environmental risk to a historic resource that does not exist for the general class of exempt projects.) “A categorical exemption is based on a finding by the Resources Agency that a class or category of projects does not have a significant effect on the environment.” Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 115. Accordingly, the circumstances of the Project must be considered “unusual” within the meaning of CEQA. Moreover, as set forth above and in the Report, the Project may have a substantial adverse impact on a number of historically significant buildings, particularly the Pollard House, the Norcross House, the Pinho House, and the Jack House. Accordingly, the unusual exception applies because it can be fairly argued that owing to special circumstances, the Project is capable of causing a significant adverse environmental impact. See, also, expert comments of James Papp., Ph.D., filed separately, regarding the Project’s adverse and substantial impact on the significance of historic resources. The Project does not come within the scope of Class 32 exemption because it is not consistent with all applicable General Plan Policies and Guidelines. To be eligible for a Class 32 exemption, the Project must be “consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.” Guidelines § 15332. Here, the evidence shows the Project is not consistent with all applicable policies. Of particular relevance to this Project is City Design Guideline 3.2.2., according to which "New development should not sharply contrast with, significantly block public views of, or visually detract from, the historic architectural character of historically designated structures located adjacent to the property to be developed, or detract from the prevailing historic architectural character of the historic district." The comments of Dr. James Papp, Ph.D., and the analysis in the Report support a finding that the Project sharply contrasts with, and visually detracts from historic resources, particularly the Pollard House and the Norcross House. The Project is also inconsistent with Guideline 5.3.C., which directs that “The height of infill projects should be consistent with surrounding residential structures. Where greater height is required, an infill structure should set back upper floors from the edge of the first story to reduce impacts on smaller adjacent homes, and to protect solar access.” There is no question that the height of this Project is inconsistent with surrounding residential structure, particularly the Pollard House which is immediately adjacent to the Project. The City may not rely on mitigation measures to conclude the Project is exempt, or one of the exceptions do not apply It is well-settled that an agency may not rely on mitigation measures to conclude a project is 6 categorically exempt, or that that an exception to the exemption does not apply. See, Kostka and Zischke, Practice Under the California Environmental Quality Act, 2nd Ed., at §5.75, citing Salmon Protection and Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098, 1102. See, also, Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165,1200. “In determining whether the significant effect exception to a categorical exemption exists, “[i]t is the possibility of a significant effect ... which is at issue, not a determination of the actual effect, which would be the subject of a negative declaration or an EIR. Appellants cannot escape the law by taking a minor step in mitigation and then find themselves exempt from the exception to the exemption.” “A mitigation measure, …, involves “feasible changes in any or all activities involved in the project in order to substantially lessen or avoid significant effects on the environment....” (CEQA Guidelines, § 15041, subd. (a).)” Mission Bay All. v. Office of Cmty. Inv. & Infrastructure (2016) 6 Cal. App. 5th 160, 184. While the distinction between a mitigation measure and a project feature may not always be crystal clear (Lotus v. Dep't of Transportation (2014) 223 Cal. App. 4th 645, 656, fn 8), the general rule is that measures whose only function is to “reduce or eliminate” one or more potentially significant impact on the environment are properly characterized as mitigation measures and are not properly considered as project feature. Id. The Report explains that “the incongruent height and massing of the building, which stretches the full width of the block, is responsible for the incompatibility of the project as a whole.” Report at p. 34. The “incompatibility of the Project with these historic resources, therefore, is largely owed to the Project’s height and massing. To address this incompatibility, the author of report proposes the following “recommendations:”  Break up the solid mass of the building, which stretches the full width of the block, into two (orthree) separate, offset elements that better reflect the surrounding building scale and spatial relationships.  Relocate the 545 Higuera Street building to the opposite side ofthe driveway to allow the Pollard House more space. Landscaping the currently proposed location would provide screening and a beneficial buffer.  Confine the four-story set-back element to the middle of the block. Report, at p. 35. The PC, likewise, has suggested mitigation measures to reduce the Project’s impact on the surrounding historic resources. According to the Staff Report, at the January 8, 2020 meeting, the PC provided the following direction to the applicant: “The exteriors of both buildings A and B shall be redesigned to bring them into compatibility with adjacent and surrounding architectural forms that reflect and preserve the historic character of the downtown area and equally important 7 in size and scale.” This appears to be a mistake as it appears that the PC actually directed the applicant to consider setback. In any event, the fact remains that the PC directed the applicant to come up with mitigation measures to reduce the Project’s impacts on the adjacent neighborhoods. According to the Staff Report, the applicant’s “proposed revisions” are intended to “promote improved neighborhood compatibility and preservation of the historic character of the downtown area, and soften the overall appearance of the buildings include: …” These proposed revisions must likewise be considered mitigation measures as they are clearly intended to reduce an adverse impact, i.e., incompatibility with historic character of the neighborhood. The foregoing demonstrates that the PC, staff and the applicant continue to struggle to find mitigation measures to reduce the Project’s impacts on historic resources. While SLAP comments the PC and the applicant’s efforts to improve the project, we must not lose site of the fact that consideration of the efficacy and feasibility of mitigation measures must be governed by CEQA standards that govern the preparation of negative declarations and EIRs. Conclusion This Project would cause particularly palpable and significant adverse impact on this historically significant neighborhood because it is a “large-scale, multi-story pioneer in the neighborhood.” Report at p. 33. As such, this Project could set a new precedent in favor of large multi-story in this neighborhood, making it nearly impossible for the City to deny any future large-scale projects on the basis of incompatibility with the scale of the historic resources of the neighborhood. As such, the law demands that the Project’s impacts and any feasible mitigation measures and alternatives be carefully and transparently considered in the regular course of environmental review. The infill exemption was not intended to apply to such a Project. I therefore urge you not to approve the Project at this time. Sincerely, LAW OFFICE OF BABAK NAFICY _Babak Naficy______ Babak Naficy, Counsel for SLAP