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HomeMy WebLinkAbout6/2/2020 Item 12, Papp Wilbanks, Megan From:James Papp < To:E-mail Council Website; CityClerk Subject:Response to staff report, Item 12, 545 Higuera, 2 June 2020 Attachments:papp reponse to staff report item 12 2020 6 2.pdf Attached. Mea culpa for lengthy technical discussion. Kudos, Heidi, on visiting Jean Martin and the Robert Pollard House; I praised your outreach in real time on Dave's show. Donn Clarius heard about it and thought it presaged the creation of a Historic District. Well, maybe it will. James 1 1 31 May 2020 Dear Heidi, Carlyn, Erica, and Aaron, My apologies that the appeal before you is not an interesting political issue but a boring legal one. People turn to the law when they feel turfed out of the process. Now that SLO’s Community Design Guidelines have become so infinitely stretchable that they would be more effectively printed on Silly Putty, and LUCE mitigations have been so quickly forgotten that they might as well be in cuneiform on clay tablets, it’s reasonable for local people to turn to state law, a move to which state courts have been sympathetic. 545 Higuera–486 Marsh and the Robert Pollard House, to scale Fifty years ago, a Republican-majority Senate and Assembly with near unanimity passed the California Environmental Quality Act, quickly signed by Governor Reagan, declaring it the policy of this state to “take all action necessary to provide the people of this state with clean air and water and enjoyment of aesthetic, natural, scenic, and historic environmental qualities.” At practically warp speed the State Supreme Court ruled that CEQA applied to private projects (Friends of Mammoth v. Board of Supervisors of Mono County, 1972) and that “accomplishment of the high objectives of [CEQA] requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact” (No Oil v. City of Los Angeles, 1974). So this is the key question: Has a fair argument been presented that meets the threshold for requiring environmental review of the 545 Higuera–486 Marsh Street project under CEQA? Exceptions to the exemption Michael and Shawna (hereafter Staff) have claimed a Class 32 exemption for infill. Is there a valid 15300.2 (b) exception for Cumulative Impact on historic and aesthetic significance or (f) exception for Historic Resources? The lead agency needs to provide substantial evidence that there isn’t (Berkeley Hillside Preservation v. City of Berkeley, California Supreme Court, 2015). Staff have already admitted there are Historic Resources involved, so no need for a substantial evidence test there. Staff have declined to offer substantial evidence—"facts, reasonable assumptions predicated on facts, and expert opinion supported by facts”—that a Cumulative Impact exception does not apply, submitting only the cryptic and unsupported statement “While the combination of other projects in the vicinity have resulted in a cumulative effect, none of the projects resulted in a significant effect” and claiming that the project is consistent with the General Plan, Zoning Regulations, and CDG without giving evidence (a) that this is true or (b) why these codes would be sole arbiters 2 of aesthetic impact given that the courts (e.g., Protect Niles v. City of Fremont, 1st District Court of Appeal, 2018; Georgetown Preservation Society v. County of El Dorado, 3rd District Court of Appeal, 2018) have repeatedly held they are not. Fair argument of substantial adverse change: Carr At this point, then, whether the project “may cause a substantial adverse change” is subject only to the fair argument standard (Berkeley Hillside), a fair argument that “can be made to support a conclusion, even though other conclusions might also be reached” (15384 (a)). In other words, “If a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect” (Friends of B Street v. City of Hayward, Court of Appeal, 3rd District, 1980). Applicant’s architectural historian, Paula Carr of SWCA, has already made that fair argument in her extensively factually supported and expert report: “there is a potential for cumulative impacts,” “the proposed project will constitute additional cumulative impacts,” “greatly impact its integrity,” “bear the brunt of project impacts,” etc. (Her contention that there will—not just may—be significant impacts also qualifies for the (c) Unusual Circumstances exception [Berkeley Hillside]). Even Staff’s contention that loss of eligibility for listing is the standard of significant impact—a bizarre notion that occurs nowhere in CEQA statute, CEQA Guidelines, or any CEQA case law—is undermined by Paula’s report: “It is not likely that the proposed project would cause any of the nearby Master List properties to lose their architectural significance or Master List status” (my italics), an ordinary sentence that means that it may. It is worth noting here that Paula suggested mitigations; that most were rejected by the developer; and that she responded to Staff, after meeting with the developer’s architects, “These clarifications go a long way, in my mind, toward meeting my earlier recommendations for improving compatibility,” which is also a “long way” from saying revisions in the project plan would “mitigate the effects to a point where clearly no significant effect on the environment would occur,” which would be the CEQA-acceptable conclusion. Fair argument of substantial adverse change: Krieger, Cooper, and Papp This historian, architect, and architectural historian have also argued severally and individually in letters and spoken testimony in the record that the North Higuera neighborhood (the block of Higuera, Carmel, Marsh, and Nipomo), founded in the 1870s on the fields of Tomas Higuera, contains a high concentration of mandatory, presumptive, and discretionary historic resources, with a period of significance from the 1870s to the 1940s, that embody this traditionally mixed use area. They have catalogued these resources; described the large number of new buildings either permitted or constructed that are dramatically opposed in scale, materials, setback, and design from the aesthetics that have persisted through 150 years; and reasonably inferred through aesthetic, historic, and statistical analysis that the neighborhood will suffer significant aesthetic and historic environmental impact from the cumulative effect of 37 new multi-story, multi-unit buildings up to 60 feet high (the equivalent of six stories) on a 70% single-story, single-family, wood and stucco neighborhood. In Protect Niles, the court held, “The Project’s compatibility with the historical district is properly analyzed as aesthetic impacts.” Georgetown Preservation did 3 not deal with a designated historic district, but because “the central district of Georgetown had retained its historic character,” the court ruled it warranted an EIR. Staff have not called into question their facts, reasonable assumptions predicated on facts, or expert opinion supported by facts or questioned experts’ expertise. Staff have expressed contrasting opinions, but that is irrelevant in a fair argument test. Again, “Accomplishment of the high objectives of [CEQA] requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact.” The objective of an EIR is to publicly resolve the truth between disputes of expert analysis—though so far every expert here has argued significant impact. Fair Argument and lay opinion Paula, Dan, Allan, and James do not provide the only fair arguments here. Two decades of rulings credit “relevant personal observations by … residents alone” as constituting “substantial evidence of environmental impacts” in certain cases (Arviv Enterprises v. South Valley Area Planning Commission, 2nd District, 2002). In Pocket Protectors v. City of Sacramento, 2004, the 3rd District Court of Appeal ruled— regarding aesthetic impact—“the abundant testimony by … neighbors familiar with the site and with the PUD [Planned Unit Development Guidelines] … also counts as substantial evidence for purposes of the fair argument test. … While some planning issues are inherently technical, the potential adverse environmental effects of minimizing the open space and landscaping required by the PUD are not. Many of the objectors, both Pocket Protectors members and others, offered detailed factual observations on these points, not mere general opinions.” In Protect Niles, the 1st District held testimony of Niles residents to be fair argument: “Here, the comments about incompatibility were not solely based on vague notions of beauty or personal preference, but were grounded in inconsistencies with the prevailing building heights and architectural styles of the Niles HOD neighborhood and commercial core.” In Georgetown Preservation, the 3rd District confirmed the validity of “lay opinion on the nontechnical aesthetic issues of size and general appearance” in establishing fair argument. Thus letters and testimony to ARC, Planning Commission, and Council regarding 545 Higuera-486 Marsh’s lack of adherence by to Community Design Guidelines or its impact on surrounding aesthetics and historicity by Jean Martin, James Andre, Paul Kellogg, Bambi Banys, Carolyn Schively, etc. pass, on close examination, the courts’ standard, as does expert testimony by James Lopes and Professors David Brodie and Eugene Jud. Staff have not challenged any of their facts, reasonable assumptions predicated on facts, or expert opinion supported by facts as legitimate fair argument. Neither has applicant, from whom or whose legal representation we have heard—at this writing—nothing. Fair argument trigger for an EIR I won’t analyze here all the fair arguments presented by various experts and nonexperts in this case, though the court will expect that analysis from the lead agency should it seek to reject them. I will point out that the 3rd District in Georgetown Preservation laid out the following standard: “In this case, a large number of interested people believe this project would have a significant and negative effect on aesthetics. They have commented that the project is too big and too boxy or monolithic to blend in, such that its presence will damage the look and feel of the historic center of Georgetown. That is enough to trigger an EIR.” 4 Like North Higuera, Georgetown’s historic center was not a designated historic district. Like 545 Higuera–486 Marsh, the Dollar General in question was an infill project that would generally have been considered exempt from environmental review. Like 545-486, it had been subject to design review and unlike 545-486 an MND. Yet the court of appeal held for an EIR. Interested people have commented that 545 Higuera–486 Marsh is too big and too boxy to blend in to the historic North Higuera neighborhood, which suggests a court would consider that enough to trigger an EIR. Unusual Circumstances “In determining whether the environmental effects of a proposed project are unusual or typical, local agencies have discretion to consider conditions in the vicinity of the proposed project” (Berkeley Hillside). Discretion, however, is not absolute; it requires substantial evidence on the part of the lead agency. Staff spends considerable time responding to this exception by describing the goals and zoning of future buildings in this block, but the unusual circumstances invoked in this exception are extant historic buildings unusually surrounding the proposed project. The SWCA report finds significant impacts on three historic resources (the Pollard, Norcross, and Pinho Houses), such that it recommended mitigations; “minor-to-moderate” impacts on two; and “probably only minor” on one (the Jack House and Garden). One of these is the oldest wood house in the city, one the oldest wood house still in its original location, and one is a National Register property that includes the city’s oldest transportation structure and oldest designed landscape. The North Higuera neighborhood’s distinction from Downtown has persisted since the 1886 Sanborn Map. Note Jack House, Wash House, Carriage House and Garden at bottom left and Norcross House at top left. None of the buildings in the right-hand page survive. 5 Their neighborhood’s “strong historic feel” is dramatically different from that of the proposed development in a way that Downtown (with extant hotel and apartment blocks with no street setbacks) would not be. As well, the adjacent three blocks of Downtown have only one Master List building among them. So these circumstances are extremely unusual. Staff’s sole statement addressing the content of this unusual circumstances contention— “the presence of historic resources adjacent to the site is not an unusual circumstance in this area of the City’s Downtown”—is a generalization devoid of actual comparative facts, reasonable assumptions predicated on facts, and expert opinion supported by facts regarding the concentration, significance, and sensitivity of impacted resources and therefore does not constitute substantial evidence. The fair argument on degree of impact has already been made by Paula Carr, James Papp, and others. I’ll remind you here that Paula’s contention that there “will” be significant impact has been held by the Supreme Court as an Unusual Circumstance in Berkeley Hillside. The Project is not subject to an exemption from CEQA because the Project was required to incorporate mitigation measures in order to reduce the significance of the Project's impacts In its response, Staff depends on a definition of impact that has no basis in CEQA statute, guidelines, or precedent to make the circular argument that SWCA’s “recommendations to improve compatibility” are not mitigations. Marin County tried the same linguistic gymnastics in Salmon Protection and Watershed Network v. County of Marin in 2004 and the 1st District Court of Appeal didn’t buy it. It seems unlikely the 2nd District will buy it sixteen years later. Staff, however, declines to discuss the ruling. Losing eligibility for listing as a historic resource is not the only measure of the significance of project’s impacts on a historic resource Staff claiming eligibility for listing as the sole criterion of significant impact has driven me crazy for years. I hoped they would finally be forced to say where they came up with this idea. From a fortune cookie? From a novel? Instead Staff merely restate it. The California legislature, executive, and courts have had a half century of opportunity to say it and never have—because it makes no sense. A McDonald’s on the porch of Mount Vernon would not threaten its historic listing, but no reasonable person would claim that the Golden Arches would not have a significant impact. The historic wood structure of the Sikes Adobe in Escondido burnt to the clay walls in the Witch Creek Fire, was reconstructed to Sectretary of the Interior Standards, and retained its NRHP listing, but no reasonable person would claim immolation is not a significant impact. Staff’s theory will not survive a court test. Community Design Guidelines and LUCE mitigations CEQA’s fair argument is the remedy California has given to its people when the beauty, meaning, and sustainability of their environment is threatened and other means of protection have been withdrawn. It would be abundantly clear to the law’s “reasonable person” that North Higuera—after the Mission our oldest surviving neighborhood—is suddenly being torn apart by major developments: 37 new multi-story, multi-unit buildings constructed or approved in an area of 59 predominately single-family and small-business one-stories. In the words of the Planning Commission, this “deeply historic part of town” has reached a “tipping point.” One commissioner “had given up on this block.” 6 The 1926 Craftsman Whitaker Duplex, before and after the Moderns on Marsh. Staff has said the blank wall doesn’t matter because the duplex will soon be demolished and replaced. Thirty years ago, the city assumed the same of the historic buildings and new motel strips. But the people who live and work there—and all who enjoys the aesthetic and historic environment of this core part of San Luis Obispo’s significance—have not given up on it. Class-based biases in historic designation North Higuera, built on the fields of Tomas Higuera, doesn’t have historic district protection, because those designations have persistently passed over working-class areas and working-class people (Peirce F. Lewis, “The Future of Our Past: Our Clouded Vision of Historic Preservation,” Pioneer America, 1975; Ned Kaufman, Race, Place, and Story: Essays on the Past and Future of Historic Preservation, 2009). Often the planning patriarchy had designs on an area without consulting its people. In the late twentieth century, SLO’s city fathers planned to turn the North Higuera into an off-freeway motel strip with unwanted historic houses relocated 7 invisibly to the middle of the block, a “design concept” since replaced by the “creative vision” of a high-rise luxury condo ghetto looming over the neighborhood’s historic remnants. Nobody asked North Higuerans. During the Downtown Concept Plan’s outreach (which, voluntary and run by upper-middle-class people, tended to attract other upper- middle-class people), everyone wanted tall buildings—for someone else’s neighborhood. Protections for the North Higuera neighborhood As a consequence, all that the people of this neighborhood had to protect themselves were the Community Design Guidelines for residential, commercial, and industrial infill projects (since infill is normally exempt from CEQA) and the LUCE, whose mitigation specifically cited the Community Design Guidelines and required in the Conservation and Open Space Element this policy: “In evaluating new public or private development, the City should identify and protect neighborhoods or districts having historical character due to the collective effect of Contributing or Master List historic properties”—that is, neighborhoods that are historic but haven’t had the clout or visibility to be designated as historic districts. North Higuera has twice the concentration of Master List resources as the Mill Street Historic District. City Staff, however, have withdrawn these two protections: First, by claiming that Downtown Design Guidelines cancel Residential Project Design Guidelines (though, inconsistently, not Commercial Project Design Guidelines) in this new “Downtown” exclave—and by not enforcing the Downtown Design Guidelines, either; or the Commercial Project Guidelines; or, for that matter, the General Design Principles. Second, by claiming this is not an “identified historic district or neighborhood,” because (in the circular deniability on which Staff increasingly depends) the city hasn’t performed the obligation under LUCE mitigation to identify “neighborhoods or districts having historical character.” No surprise. The city hasn’t updated its Historic Resources Survey in 37 years, though the recommended standard is 5. What’s surprising is the authors of the EIR thought the city would actually do what that document obligated. Inconsistent treatment of the guidelines Staff’s contention that Downtown Design Guidelines obviate Residential Project Design is unsupported by any language in the CDG. The CDG states, “These guidelines apply to the design of new residential subdivisions and to multi-family and clustered residential projects” and don’t add “unless they happen to be downtown.” Staff did not suspend the Commercial Project Design Guidelines for this project. As well, the CDG states that “the City’s other design standards dealing with signs, landscaping, and parking shall also be addressed whenever applicable,” so it would mystify a court as much as the reasonable person that applicants, Staff, and advisory bodies are deemed incapable of following Residential Project Guidelines and Downtown Design Guidelines at the same time, the planning equivalent of walking and chewing gum. Lack of enforcement of the guidelines But 545 Higuera violates the Downtown Design Guidelines as well, including that “multi-story buildings should … maintain a street façade that is consistent with the historic pattern of development,” “the height and scale of new buildings and alterations to existing buildings shall [shall, not should] fit within the context and vertical scale of existing development,” “New buildings that are significantly taller or shorter than adjacent buildings shall [shall, not should] provide appropriate visual transitions,” “Articulated roofs should be used to provide interest and to diminish the mass 8 and scale of taller buildings,” etc.—especially problematic since 545–486 lies in a recent and ahistoric extension of “Downtown” into North Higuera, San Luis Obispo’s oldest suburb, and its immediate neighbors are on the other side of this newly shifted border. Highlighting the proviso under “Use of the Guidelines by the Architectural Review Commission” that “the ARC may interpret these design guidelines with some flexibility,” Staff has accorded itself the same latitude to suspend major objective standards early in the design process when they are still enforceable. By the time a project reaches the ARC, scale and massing have for all practical purposes been set in stone, leaving the ARC to argue about the color of the stone. The Council amended the CDG in 2007 to clarify “that ‘should’ language is intended to be followed unless there are specific extenuating circumstances.” But these specific extenuating circumstances are never specified by applicants or Staff, leaving no mechanism to prevent the guidelines being disregarded should applicant or Staff choose. Extenuating means “serving to lessen the seriousness of an offense.” Desiring a bigger structure to make more money or boxier one to save more is not extenuation. The willingness of state courts to shift local planning issues to CEQA All of this is important because courts tend to invoke CEQA when they see local planning no longer functioning to “provide the people of this state with clean air and water and enjoyment of aesthetic, natural, scenic, and historic environmental qualities.” In a telling example, the Third District handed down Bowman v. City of Berkeley and Pocket Protectors v. City of Sacramento in September and December of the same year (2004) in rulings that, without context, might seem contradictory. Bowman In Bowman the issue in dispute was whether a four-story section of a proposed senior housing building should be brought down to three and a three-story section down to two. A two-story section was already planned to abut single-family residences, and developer discussions with neighbors had resulted in setbacks, hipped instead of flat roofs, fewer apartments, and other accommodations. There were no mandatory, presumptive, or discretionary historic resources involved, though there was a one- and occasionally two- story neighborhood of single-family houses. A mitigated negative declaration had been prepared. The court ultimately held that, despite some continued neighbor objections, the project had undergone an extensive design review process to mitigate its visual impact, did not “test the boundary” of a “particularly sensitive” context, and there was no environmentally significant aesthetic effect that required an EIR “in that instance.” Pocket Protectors Three months later, the court held in Pocket Protectors that neighbor testimony based on violations of landscaping requirements in PUD Guidelines constituted fair argument and required an EIR rather than the original MND, adding, “Whether a fair argument can be made on this point is a legal question on which we do not defer to the City Council's determination.” The court observed, “It is true that the MND found the project consistent with the PUD. However, its findings are devoid of reasoning and evidence.” It also pointed out, “Regis [the developer] asserts its project is within the PUD's approved density for the site. This fact does not advance Regis’s argument. Maximum density is only one of the PUD's conditions for development of R-1A sites.” Courts consider guidelines inadequate without enforcement In other words, following zoning is not adequate without following guidelines; the lead agency is not 9 exempt from providing facts and reasonable assumptions predicated upon facts; and courts are willing to overturn city governments where they have guidelines they don’t enforce. Bowman and Pocket Protectors are key to the unlikelihood a court would tolerate lead agency’s decisions in 545-486. The applicant, Taylor Judkins, has neither consulted with nor made accommodations to the neighborhood nor provided written input in today’s hearing. When Planning Commission expressed concern that this “deeply historic part of town” had reached a “tipping point” and instructed that the exteriors of both buildings “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 in size and scale,” he added some brick siding (which does not occur historically in the area) and more balconies (further impairing privacy) and refused any setbacks. The Cultural Heritage Committee The basis of federal CLG, CEQA, and SLO’s Historic Preservation Ordinance is that technical issues should be assessed by independent specialists before arriving at a decision-making body. “The [Cultural Heritage] Committee shall [not should] review and make recommendations … on applications and development review projects which include ... proposed actions of public agencies that may affect historic or cultural resources within the City.” Council’s intent is clear, echoed in “The CHC shall make recommendations to decision-making bodies on the following: The application of architectural, historic, and cultural preservation standards and guidelines to projects and approvals involving historic sites, districts, and structures” (HPO 14.01.030.B.5). Staff’s contention that “helping the CHC carry out its duties” includes shutting it up on matters where the Council has mandated its advice is weird.in Staff’s conclusion renders the language of the ordinance effectively meaningless and goes against CEQA by giving the lead agency infinite discretion to decide when public review would serve “no public purpose.” Finally, Realpolitik Why has Staff so aggressively disavowed the community’s design guidelines that the community worked so hard to create, the city’s obligations under the LUCE EIR, Council-authored expectations to consult the CHC over historic resource issues, and CEQA review? For what high objective? On this block, the hope of ultra-luxury condos and hotel suites whose twelve-foot ceilings and large floor plans double their mass but make them unaffordable except as pieds-à-terre for the one percent. In 2017 the CHC concluded the that San Luis Square project, a Belsher-Petetit-Judkins collaboration, qualified for a Historic Resources exception from an Infill exemption. Staff took the extraordinary step of suppressing the recommendation from the ARC and denying it as fair argument. The city’s reward? A derelict project behind a chain-link fence. Breaking rules only helps broken projects. In contrast, the sensitively designed 71 Palomar project— with exemplary MND and CHC support through the appeal and court review process—got built, integrates into the neighborhood, and provides affordable housing. Destination Wedding In 1969 Mayor Schwartz set out to beautify San Luis into a tourist Mecca. A half century later, when Keanu Reeves and Winona Ryder ubered out of SLO in their 2018 movie, Keanu asks, “What the fuck happened to urban planning in this town? At some point did they just give up?” At some point we did. But is that what we want people to remember SLO for? James Papp, Architectural Historian, SOI Standards 10 The Shapes of North Higuera’s Past Jack House, Italianate, William Evans, architect, 1878 Campbell Refrigeration Building, Streamline Moderne, circa 1941 Fire Alarm, circa 1906 Logan Apartments, Craftsman remodel of 1887 racing stable, 1923 Pollard House, 1876 Ranch House with circa 1916 E. D. Bray pergola Firpo Duplex, Spanish Revival, 1926 Connolly Cottage, Italianate/Folk Victorian, by 1903 Dody Cottage Court, Craftsman, 1923 Henry House, Queen Anne, by 1906 Howey Bungalow, Craftsman kit house, after 1916 Kaetzel House, Queen Anne, 1905 Modernist office, circa 1960 Kinkade House, Minimal Traditional, remodel circa 1921 Lima House, Neoclassical, circa 1900 Negranti Packard Dealership, Streamline Moderne, late 1930s Johnston Bungalow, Craftsman, 1922 11 Negranti Packard Repair Shop, stepped gable, 1928 Parker Cottage, Folk Victorian, by 1903 Wilkinson House, Craftsman, 1915 Johnston Court, Craftsman, 1921 Smith House, 1922 Golden State Creamery, 1910, Mission Revival Pinho House, Italianate, circa 1887 Rogers Bungalow, Craftsman, 1933 Jack Wash House, by 1886 Streamline Moderne house, circa 1940 Whitaker Duplex, Craftsman, by 1926 The Shape of Its Future?