HomeMy WebLinkAbout6/2/2020 Item 12, Naficy
Wilbanks, Megan
From:Babak Naficy <
To:CityClerk; Scott, Shawna; Advisory Bodies
Subject:June 2, 2020 City Council Meeting Agenda Item 12 Appeal of 545
Higuera
Attachments:BabakNaficy Letter RE 545 Higuera 5.29.2020.pdf
Please promptly distribute to the Honorable Mayor and members of the City Council.
--
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 ffices of B a b a k N a f i c y
May 29, 2020
Via Email
San Luis Obispo City Council, c/o
Shawna Scott, Senior Planner
sscott@slocity.org
advisorybodies@slocity.org
Re: City Council June 2, 2020 Meeting, Agenda Item 12: Appeal of PC’s approval of 545
Higuera & 486 Marsh
Honorable Mayor and Councilmembers.
I provide this supplemental rebuttal in support of San Luis Architectural Protection
(“SLAP”) and Save Our Downtown (“SOD”, collectively “Appellants”) appeal the Planning
Commission’s February 26, 2020 approval of a mixed-use Project at 545 Higuera/486
Marsh Street (“the Project”), including the Planning Commission’s conclusion that the
Project is exempt from review under the California Environmental Quality Act (“CEQA”).
This document supplements and incorporates by reference the Appeal form, the
Supplemental Statement Previously filed concurrently with the appeal, and the comments I
presented to the Planning Commission on February 26, 2020 as well as the written and oral
comments of James Papp, PhD, Allan Cooper and Dan Krieger’s at the Planning
Commission hearings on January 8, 2020 and February 26, 2020 and in connection with this
appeal.
Appellants’ core objective and main concern here is the preservation of the historic
resources and the architectural integrity of the historically mixed-use, working-class
neighborhood in which this Project is proposed. Appellants are deeply concerned that owing
to its mass, height and scale, this Project would have an overwhelmingly adverse impact on
the affected historic resources and architectural and aesthetic integrity of this neighborhood
and beyond.
The Project is not exempt from CEQA
The Project is not exempt from CEQA because it could potentially cause a substantial
adverse change in the significance of “historic resources”. CEQA Guideline §15300.2(f).
Substantial evidence supports this finding. The evidence includes the separately filed
comments of Dr. Papp, which demonstrate that the Project’s impact on the historic
resources are potentially significant. Likewise, April 2019 SWCA Environmental
2
Consultants’ Historic Preservation Report (“Report”), which explained that “[f]ive parcels in the
immediate project area [of the Project] are occupied by buildings included on the City' s Master
List of Historic Resources ( Table 1). Of the five, one property- the Jack House- is also listed on
the NRHP. One additional property within the neighborhood- the c1887 Pinho House- is also
included as an example of early residential development typical of the neighborhood.” The Report
also explains that another nine Master List properties (six within the Old Town Historic District
and three within the Downtown Historic District) are located within the project viewshed and are
therefore potentially indirectly impacted by the Project. See, Report at p. 7.
The Report goes on to specifically assess the Project’s potential indirect impacts on historic
resources in the Project’s vicinity. Concerning the Master Listed Pollard House, which abuts the
southwest corner of 545 Higuera Street, the Report explains that “[t]he 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 (cf. Figure 39),
though not its integrity of location, design, materials, or workmanship. Because of their vastly
different architectural approaches, the residential use in the mixed-use 545 Higuera Street
development is not easily “read" from the street; the Pollard House, on the other hand, is readily
understood to be an older residence." (Report, page 19, emphasis added.)
Regarding the Master Listed Norcross House, which is located directly across from Higuera from
the Project, the Report explains that “[a]long 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, page 20).
The Report goes on to explain that while it would cause a relatively minor impact on a host of
other historic resources, “the primary impact and the primary lack of architectural compatibility
focus on the 1870s Pollard and Norcross properties.” (Report at p. 33.) The Report’s author very
clearly explains that the Project would cause a significant impact on these historical resources,
even if the Pollard and Norcross properties may not lose their listing eligibility.
The Staff’s main contention is that impacts on historical resources cannot be significant unless it
can be concluded that the Project would result in the affected property losing its eligibility for
listing as a historical resource. As we explained in the Supplemental Statement in Support of the
Appeal, the Staff’s narrow interpretation of CEQA Guideline §15064.5(b) to arrive at this
conclusion has not been squarely embraced by any California authority and is not legally
defensible.
3
The Staff’s legal position is inconsistent with the City’s own Historic Preservation Ordinance
(HPO), which does not define an adverse impact on a historic resource solely in terms of its
impact on listing eligibility. City Code §14.01.020 (3) defines an adverse impact as “effects,
impacts or actions that are detrimental or potentially detrimental to a historic resource’s condition,
architectural or historical integrity.” Under this definition, the Project is more than capable of
causing a significant impact on the historic resources because it is highly detrimental to the
resources “historical integrity.” The HPO and Guidelines therefore do not support the Staff’s
contention that a significant adverse impact on a historic resource must be limited to impacts that
would render the property ineligible for listing.
Caselaw does not support the Staff’s narrow and cramped legal interpretation. Eureka Citizens for
Responsible Gov't v. City of Eureka (2007) 147 Cal. App. 4th 357 specifically considered this
issue. The Court explained that a ““substantial adverse change” in the significance of an historical
resource is defined as “physical demolition, destruction, relocation, or alteration of the resource
or its immediate surroundings such that the significance of an historical resource would be
materially impaired.” (Guidelines, § 15064.5, subd. (b)(1), italics added.) Notably, Eureka
Citizens did not embrace the Staff’s argument that the only measure of the significance of a
project’s impact on a historical resource is whether the resource would lose its eligibility for
listing as a result of the Project’s impacts.
Comm. to Save the Hollywoodland Specific Plan v. City of Los Angeles (2008) 161 Cal. App. 4th
1168. (“Hollywoodland”) is also instructive and on point. This case concerned the City of Los
Angeles’ decision to approve a property owner’s application to attach a safety fence to a
historically significant granite retaining wall. (Id., at 1172.) Hollywoodland Specific Plan
prohibits alteration of these retaining walls, but the City had granted an exception in this case and
concluded the project was exempt from CEQA as a minor alteration to land. (Id. at 1178.)
The Appellant argued the City could not rely on an exemption because “the project had a
potentially significant impact on a historic resource because the fence had been constructed by
making significant alteration to the stone wall.” (Id., at 1177.) The trial court rejected the
petitioner’s argument because it concluded that the historic retaining wall was not substantially
affected by the fence. The Court of appeal, however, reversed. The Court noted that “[t]he stone
walls are old and unique; any change to them could significantly alter their physical composition.
Finally, the building of a fence atop the wall will significantly impact the environment by altering
the historic resource, both as to its physical integrity and its aesthetic appeal from the neighboring
streets.” Id., at 1187 (emphasis added.) In the course of evaluating the impacts on the historic
retaining wall, the Court did not even mention the wall’s continued eligibility for being listed as a
resource, and instead, focused on physical integrity and aesthetic appeal of the wall. Likewise,
here, the City Council should focus, not on whether the Project would render the affected historic
resources (Norcross House, Pollard House, etc.) ineligible for listing, but on whether the Project
would affect the historic resources’ integrity of setting and the visual impacts on these resources.
4
The impacts on a historic resource need not be physical, but instead, may be solely of an aesthetic
nature. Protect Niles v. City of Fremont (2018) 25 Cal. App. 5th 1129 includes a thorough and
highly relevant discussion of analytical framework for consideration of a project’s potential
aesthetic impacts on historic resources. The Project at issue in Protect Niles included a mix of
residential and retail components. Local residents were concerned that the modern architecture
and the sheer size and scale of the Project conflicted with and was inconsistent with the unique
historic district surrounding the site.
The Court in Protect Niles observed that “several courts have recognized that a project’s impact
on the aesthetic character of a surrounding community is a proper subject of CEQA environmental
review.” (Id., at 1141.) It is well-settled that changes to the “physical and aesthetic conditions”
and the character of the surrounding neighborhood due to a project’s physical features such as
density and height may result in a significant aesthetic impact. (Id., citing Citizens for Responsible
& Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323.) Likewise,
inconsistency between the size and scale of a project and historic resources may result in a
significant aesthetic impact. (Id, at 1142, citing Eller Media Co. v. Community Redevelopment
Agency (2003) 108 Cal.App.4th 25, 35-36.)
After discussing the evolution of the law and the rules that govern analysis of a Project’s aesthetic
impacts, the Court concluded that “a project’s visual impact on a surrounding officially-designated
historical district is appropriate aesthetic impact review under CEQA.” (Id., at 1145.) Based on
this holding, it is settled that a project’s visual impact on nearby eligible or listed properties is
likewise a proper subject of inquiry under CEQA. (See, Eureka Citizens, supra, 147 Cal. App. 4th
374. )
The Historic Report prepared for the City and the comments of experts such as Dr. James Papp,
Ph.D., establish that the Project may have a significant adverse aesthetic impact on historically
significant properties in the Project’s vicinity. Owing to its size, mass, architectural style and
height, the Project is simply incongruent with and will significantly dominate the neighboring
historic resources such as the Pollard House and would greatly impact their “integrity of
setting, feeling, and association. There is enough evidence in the record to convince any
objective observer that owing to its potential impacts on historically significant properties, this
Project should not be approved based on an exemption and instead, should be more thoroughly
vetted as required by CEQA.
Owing to unusual circumstances, the Project may cause a significant adverse impact on
historic resources.
Appellant contends that owing to unusual circumstance, the Project is capable of causing a
significant adverse impact on historical resources. The Project’s circumstances are unusual
because unlike a typical “infill project” subject to the infill exemption, this Project is surrounded
by historically significant structures in a neighborhood that has a strong historic feel.
5
Staff’s rejection of this argument is based on the contention that “[w]hat constitutes an unusual
circumstance is dependent on the context of the project, and whether that circumstance is unusual
for the type of project in the actual area in which the project occurs.” (staff report at page 107.)
The Staff’s explanation of what constitutes unusual circumstances is wrong as a matter of law.
A categorical exemption is based on a finding by the Resources Agency that an entire class or
category of projects would not have a significant effect on the environment. (Davidon Homes v.
City of San Jose (1997) 54 Cal.App.4th 106, 115.) Categorical exemptions are intended to apply
only to projects that clearly fall within the specific type of activity that has been carefully analyzed
and categorically found to not have an individual or cumulative significant effect on the
environment. Pub. Res. C. § 21084(a); Guideline §15061(b)(3) (“Where it can be seen with
certainty that there is no possibility that the activity in question may have a significant effect on
the environment, the activity is not subject to CEQA”) (Emphasis added.)
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 (“Wildlife Alive”). A
project that might otherwise be categorically exempt must nevertheless be thoroughly reviewed if
one of the following three exceptions apply if there is a reasonable possibility of a significant
effect on the environment due to unusual circumstances (Guideline §15300.2(c))
Staff claims whether the circumstances of a project are unusual depends on “whether that
circumstance is unusual for the type of project in the actual area in which the project occurs.”
Based on this understanding of the law, Staff reasons that “the fact the project would be located in
an area with historic resources is not unusual because the presence of historic resources adjacent
to the site is not an unusual circumstance in this area of the City’s Downtown.” (Page 107.)
Staff gets its wrong because the relevant inquiry is not whether a typical project in this area of
Downtown would be in close proximity to historic resources. The relevant inquiry is whether
projects subject to the “infill” exemption are typically surrounded by historically significant
resources. “[A]n unusual circumstance refers to ‘some feature of the project that distinguishes it’
from others in the exempt class. [Citation.] In other words, ‘whether a circumstance is “unusual”
is judged relative to the typical circumstances related to an otherwise typically exempt project.
(Voices for Rural Livingv. El Dorado Irrigation District (2012) 209 Cal.App.4th 1096, 1109.) A
challenger may show unusual circumstances by showing that the project has some feature that
distinguishes it from others in the exempt class, such as its size or location. (Berkeley Hillside
Pres. v. City of Berkeley (2015) 60 Cal.4th 1086, 1105.) So the relevant inquiry is whether the
Project is unusual relative to other infill projects, as contemplated by the Resource Agency when
they decided that infill Projects would be exempt from CEQA review. Whether a typical project in
Downtown San Luis Obispo would be proximate to historical resources is irrelevant to this
inquiry.
6
As explained above, by reason of the Project’s proximity to multiple historic resources, it can be
fairly argued that the Project may have a significant impact on significant historic resources.
Substantial evidence amply supports this contention. Accordingly, the City may not rely on an
exemption and must instead initiate a more thorough review of the Project’s potential impacts and
identify potentially feasible mitigation measures and alternatives to the Project.
The Project does not qualify for an exemption because the City relies on mitigation
measures to approve the Project.
The appeal also argued that the Project is not subject to an exemption from CEQA because the
Applicant was required to incorporate mitigation measures in order to reduce the significance of
the Project’s impacts and inconsistency with historic resources. Staff rejects this argument without
any explanation or cogent reasoning, claiming that “[t]he proposed project’s modifications
through staff and advisory body review do not constitute mitigation measures as defined by
CEQA. No significant adverse impact to historic resources was identified for the project as
proposed.” Staff’s contention is not based on any adequate reasoning or explanation and simply
wrong.
Staff does not provide any definition of “mitigation.” “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 (“Lotus”)),
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.)
As reflected in the Staff Reports, at the direction of the ARC, the applicant was directed to revise
the Project to ameliorate the Project’s impact on the historic resources in the neighborhood and
make the Project compatible with the CDG. Based on the ARC’s direction, the Project was
redesigned to 1) narrow the stone façade at the street down to three bays, (2) incorporate two
wider storefronts facing Marsh Street, (3) lower the stone elements by two feet and incorporating
42 inch glass guard rail, (4) include an additional 10 foot step back at the ground floor to create a
softer corner. Moreover, (6) a portion of the second and third floor was recessed five feet from the
southwest portion of the building stone material and was cantilevered over the recessed storefront
entrance facing Marsh Street, (7) the fourth floor setbacks on the Marsh Street elevation were
increased from 16 feet, 10 inches to 22 feet, 3 inches, (8) three story cantilevered element facing
the Pollard House were replaced with a two story street façade, and the bay design and width/
height ratios of the project were modified for improved proportionality relative to the Pollard
House. (9) The southwest portion of Building A now incorporates an additional five foot third and
7
fourth floor step backs in order to provide additional visual transition between Building A and the
Pollard House, and (10) the fourth floor setbacks on Higuera Street were increased from 11 feet, 6
inches to 15 feet. These changes occurred before the City had reached a conclusion regarding the
Project’s significant impacts. Each of these revisions should be considered a mitigation measure to
the extent they were intended to bring the Project into consistency with CDG and reduce the
indirect impact on historical resources.
Likewise, the applicant was also directed by the Planning Commission to make project
modifications to address the Project’s incompatibility with the surrounding historic resources and
reduce the Project’s impact on these resources. As Staff explained in its February 26, 2020 Report,
the Commission directed the applicant to redesign the exteriors of both buildings A and B in order
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 in size and scale.
According to Staff, in response to this direction (which used the word “shall”) the size and scale
of the project was not modified, but the Project was revised to incorporate a variety of elements
that reduce the apparent massing of the structure by “better reflecting pedestrian- scale elements
present in the Downtown, and complementing elements of historic structures present within the
area. The most prominent project revision is the use of brick and stucco materials, which …
improves compatibility with the neighborhood.”
The myriad of revisions to the Project, which were for the most part intended to reduce the
Project’s impacts (including aesthetic) on historic resources, must be considered mitigation
measures within the meaning of CEQA because they were intended to reduce Project impacts on
historic resources.
Salmon Protection and Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098 is
instructive. The project in Salmon Protection was a “a four-bedroom house of 3,649 square feet,
with a garage of 768 square feet, on a 7.26–acre parcel abutting San Geronimo Creek and within a
designated stream conservation area.” (Id. at 1103.) To address runoff from rooftops and
driveways, which could erode stream banks, the applicant proposed extensive drainage features
for erosion and sediment control. (Id., at 1107.) The County approved the project subject to a
condition that required “detailed construction limitations and incorporation of a riparian protection
plan prepared by an engineering firm.” Id. The Court concluded these riparian protection features
were mitigation measures that precluded the County’s reliance on an exemption. The Court
rejected the applicant’s argument that the project could be exempt nevertheless because the
mitigation measures, including the riparian protection plan, were included in the initial project
application. The Court held that“[t]he determination of whether a project may impact a designated
environmental resource must be made without reference to or reliance upon any proposed
mitigation measures. Reliance upon mitigation measures (whether included in the application or
later adopted) involves an evaluative process of assessing those mitigation measures and weighing
them against potential environmental impacts, and that process must be conducted under
8
established CEQA standards and procedures for EIRs or negative declarations.” Id. at 1108.
Similarly, here, the Planning Commission’s conclusion that the Project would not significantly
impact historic resources is at least in part based on the project modifications that were required
by the ARC and the Planning Commission. As such, these measures must be considered
mitigation measures that must be analyzed more thoroughly through an EIR or mitigated negative
declaration.
The Project is not exempt from CEQA because the Project is capable of causing a significant
cumulative impact on historic resources
The appeal argued that City may not proceed on the basis of an exemption because the Project is
capable of causing a cumulatively significant impact on historical resources. CEQA Guideline
§15300.2(b) provides an exception to the application of an exemption where “significant
cumulative impacts from projects of the same type will result.” The evidence in the record
supporting the conclusion that Project could result in a cumulatively significant impact on historic
resources include the fact that the City has already approved multi-story multi-family, residential
projects in the same neighborhood affecting the same resources. At the February 26, 2020
Planning Commission hearing, Michael Codron, the City’s Director of Community Development,
emphasized that the City will likely continue to see applications for similar multi-story projects in
this neighborhood. In fact, the Staff Report cites with approval appellant’s contention that “the
City has approved multi-story, multi-family, residential [and mixed use projects] in the vicinity,
and consistent with the General Plan and Zoning Ordinance, it is reasonably expected that
additional applications would be received for similar types of developments.” (Staff Report at p.
107). Accordingly, the City was required at least to consider whether the Project’s individual
impact on neighborhood historic resources, in addition to those attributed to past and reasonably
foreseeable future impacts, could be cumulatively significant.
The Report supports Appellant’s argument. The Report explained that “in terms of height,
massing, architectural style, and materials, the proposed project is part of an ongoing architectural
trend taking place quite rapidly across the city.” (ARC Staff Report at p. 147.) The Report goes on
to explain that “the fact that these properties [historic resources such as the Norcross and Pollard
House] have already experienced and " absorbed" nearby development raises two points: 1 ) there
is a potential for cumulative impacts; and (2) despite impairment of their integrity of setting,
feeling, and association ( and, for the Norcross House, further impairment of location, design,
materials, and workmanship), the historic properties have nonetheless retained their significance
as surviving examples of 1870s architectural styles and have retained their eligibility for Master
List status.” (Ibid., emphasis added) This evidence, in addition to Appellant’s comments and those
of Dr. Papp and Mr, Cooper, put the City on notice that it must consider the cumulative impact on
these historic resources because with the continued proliferation of massive multi-story buildings
in this neighborhood is capable of causing a cumulatively significant impact on historic resources.
Ignoring this evidence, the Staff Report merely claims that “[w]hile the combination of other
9
projects in the vicinity have resulted in a cumulative effect, none of the projects resulted in a
significant effect and as noted above, the proposed project would not have a significant effect on
historical resources as defined by the State CEQA Guidelines.” (Staff Report at p. 108.) The
Staff’s analysis is wholly inadequate.
“[T]he purpose of the requirement that cumulative impacts be considered ... is to ensure review of
the effects of the project in context with other projects of the same type.” [Citation omitted].
“Cumulative impact analysis is necessary because the full environmental impact of a proposed
project cannot be gauged in a vacuum.” ([citations omitted.])(N. Coast Rivers All. v. Westlands
Water Dist.(2014) 227 Cal. App. 4th 832, 874.) “A “cumulative impact from several projects” is
defined in the Guidelines as “the change in the environment which results from the incremental
impact of the project when added to other closely related past, present, and reasonably foreseeable
probable future projects. Cumulative impacts can result from individually minor but
collectively significant projects taking place over a period of time.” (Guidelines, § 15355,
subd. (b)) (emphasis added).
The fatal flaw in the Staff’s analysis is the assumption that a project may not have a significant
cumulative impact if its individual impact is insignificant. Staff ignores the well-settled principle
that a cumulative impacts can result from individually minor but collectively significant projects
taking place over a period of time.” (Guidelines, §15355(b).) Accordingly, the Staff’s conclusion
that the Project is incapable of causing a cumulatively significant impact on historic resources
must be rejected because this conclusion is based on a misunderstanding of the applicable law.
The Project does not meet the definition of “housing development project under
Government Code §65589.5
According to the Staff Report, Housing development project” means a use consisting of any of the
following:
Residential units only.
Mixed- use developments consisting of residential and nonresidential uses in which
nonresidential uses are limited to neighborhood commercial uses and to the first floor of buildings
that are two or more stories.
Transitional housing or supportive housing.
According to the Project description, the Project will include hotel rooms above the first floor of
the building. Hotels are a commercial use, accordingly, the Project does not meet the definition of
Housing Development Project.
10
The Planning Director exceeded his authority and violated the Historic Preservation
Ordinance by failing to refer this Project to the Cultural Heritage Committee for analysis
and recommendations.
The appeal argued that pursuant to the Historic Preservation Ordinance or HPO, this Project
should have been referred to the City’s Cultural Heritage Committee for review and
recommendation. According to the HPO, the Committee’s duties include making
recommendations to both the Planning Commission and the City Council on “the application of
architectural, historic, and cultural preservation standards and guidelines to projects and approvals
involving historic sites, districts, and structures” and “alterations related to development or
demolition applications involving listed resources and properties within historic preservation
districts. (§14.01.030(B)(5) & (7).)
The HPO also provides that “[t]he Committee shall review and make recommendations to the
Director, Architectural Review Commission, Planning Commission or City Council on
applications and development review projects which include any of the following: … Proposed
actions of public agencies that may affect historic or cultural resources within the City.”
§14.01.030(C)(7).
Staff contends the Community Development Director (“Director”) was within his authority not to
refer the Project to the Cultural Heritage Committee, because according to Staff, the Planning
Director is responsible for interpreting and implementing the HPO and helping the CHC carry out
its duties. According to Staff, the Director may determine that CHC review is not required for
actions or projects that do not adversely affect historic resources. In this case, however, the
evidence does not support a conclusion that the Project is incapable of causing any adverse
impacts.
Staff also explains that “[t]o ensure clarity about projects subject to Cultural Heritage Committee
review, staff worked with the CHC to develop a matrix identifying those projects that will be
referred to the Committee for a recommendation. In this case, the project is not located in a
historic district and there are no historic resources located on the property to be developed. As
noted above, the project would not have an adverse effect on historic resources; therefore, the
project was not referred to the CHC.” (Emphasis added.)
Staff’s explanation for the Director’s failure to refer the Project to the CHC is problematic and
raises more questions than it answers.
1. The Staff’s reliance on the “matrix” that was allegedly developed in concert with the CHC
is extremely problematic. Staff did not include a copy of the matrix or even the text of relevant
provisions, making it difficult to know exactly what the matric includes. More importantly, the
Staff’s reliance on such a matrix is not authorized by the Ordinance. The Ordinance does not
11
explicitly or implicitly authorize staff to reduce the decision to refer a project to the CHC to the
formulaic application of facts to a matrix. Furthermore, staff’s reliance on such a matrix in the
present context amounts to an improper delegation of the authority of Director of Planning who
alone is responsible for deciding whether CHC review of a Project is not needed. To the extent
that the matrix contradicts the terms of the Ordinance (in this case by precluding CHC review of a
Project that would undoubtedly impact historic resources), it is preempted by the HPO.
2. Staff contends the Project was not referred to the CHC because “[a]s noted above, the
project would not have an adverse effect on historic resources.” This contention is clearly without
merit because the Project would have at least some adverse impact on one or more historic
resources. Until this point in the Staff Report, Staff had never claimed the Project would not have
any adverse impact on historic resources; Staff’s argument all along has been that the Project’s
impact on historic resources would not be “significant”. On Page 107, for example, Staff claims
“the project would not cause a substantial adverse change in the significance of an historical
resource and would not have a significant effect on the environment. (Emphasis added.)
Likewise, the Planning Commission never concluded or insinuated that the Project would have no
impact on historic resources. To the contrary, as the PC Staff Report explains, the Commission
was so concerned about the Project’s impact on these historic resources that it directed the
Applicant (using the word “shall”) to redesign the exteriors of both buildings A and B “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 in size and scale.” These
comments indicate that the Planning Commission was concerned about the Project’s impacts on
historic resources; the Commission never concluded that the Project would have no indirect
impacts on historic buildings.
The fact that a Historic Preservation Report was prepared for this Project “to assess the project’s
potential indirect effect on proximate historic structures” also supports Appellant’s argument.
(ARC September 9, 2019 Staff Report, at p. 4) This report was commissioned presumably because
the Planning Director or his designee believed the Project is capable of causing at least some
impacts on nearby historic resources. Accordingly, the fact that this Report was commissioned at
all is prima facie evidence that the Staff’s assertion that the Project would have no impact on
historic resources is without merit.
3. Appellant’s argument that the Project should have been referred to the CHC is also
buttressed by the fact that according to the Historic Preservation Guidelines, such a report is
needed whenever a project is referred to the CHC. “Historic preservation report required. If
CHC review of a project is required, a historic preservation report shall be prepared at the
applicant’s cost unless this requirement is waived by the Director due to the minor nature of the
project or because information is otherwise available to enable informed review of the proposed
project. (Historic Preservation Guideline 3.4(e)). It would be for the City Planning Department or
12
Director to commission a historic preservation report but not refer the Project to the CHC since
the only time such a report is required is in conjunction with a referral to the CHC.
4. Finally, we come back to the fact that ample credible evidence, including the expert
testimony of Dr. James Papp, Ph.D and Allan Cooper, conclusively established that this Project
would result in substantial and significant impact on historic resources. Thus, even if the Council
concludes that this impact is less than significant (a conclusion that Appellant would vigorously
dispute), the Council must conclude that the Project could potentially impact historic resources
such that the Project should have been referred to the CHC.
CONCLUSION
The City did not adequately review the Project’s potential impacts on the many historically
significant buildings located in the immediate vicinity of the Project. This Project is not subject to
an exemption because the Project is clearly capable of causing a significant impact to historic
resources. An infill exemption applies only to garden variety projects that do not abut at least three
historically significant structures. The Planning Director seriously compounded the problem by
not refusing to refer the Project to the CHC, as required by the PHO. On behalf of my client, San
Luis Architectural Protection and Save Our Downtown, I urge you to grant the appeal and refer
this Project to the CHC and not to reconsider the Project unless and until the City has undertaken
an adequate review of the Project by preparing an Environmental Impact Report or a Negative
Declaration..
.
Respectfully,
Babak Naficy
Babak Naficy, for Appellants