HomeMy WebLinkAbout4/4/2023 Item 6a, AMMCG, LLP
A DAMSKI M OROSKI M ADDEN
C UMBERLAND &G REEN LLP
A TTORNEYS AT L AW
Post Office Box 3835 San Luis Obispo, California 93403-3835
T 805-543-0990 F 805-543-0980 www.ammcglaw.com
March 27, 2023
\[VIA EMAIL\]
Mayor Erica Stewart
estewart@slocity.org
Vice Mayor Jan Marx
jmarx@slocity.org
Council Member Emily Francis
efrancis@slocity.org
Council Member Andy Pease
apease@slocity.org
Council Member Michelle Shoresman
mshoresman@slocity.org
Re: The Michaels’ Residence
841 Patricia Drive
Dear Madame Mayor and Members of the City Council:
This firm has the privilege of representing Eric and Julie Michaels in their application to
construct their family home, a single-family residence (“SFR”) with a separate Accessory
Dwelling Unit (“ADU”) on their property located at 841 Patricia Drive. The Michaels purchased
the property in 2020 while living and working in Moscow. They intended that Julie (along with
her husband Eric and their three children) would eventually return to the area where she grew up
and build their “forever” home. They also planned for a detached ADU so that Eric’s elderly father
from Australia could live out his years with his family. Recent world events have significantly
altered their situation and accelerated their timetable. They will move to San Luis Obispo as soon
as their home is completed.
The reason I used the word “privilege” in the opening sentence is because the Michaels
have spent the past two years doing exactly what good and responsible home builders should do.
They hired a leading land use consulting firm to guide them through the process, they retained a
local architect who has painstakingly worked with them on the best design for their home and
ADU and, probably most importantly, early on they reached out to the City and the neighbors in
an effort to receive feedback on a design that met their desires and City standards while minimizing
the impact on neighboring property owners. As a result of the input from the outreach, the location
of both the SFR and the ADU have been moved to avoid riparian setbacks and minimize any
impact on the neighboring views.
Neither City Staff nor the neighbors have any issues with the design and construction of
the SFR or the ADU. The home and the ADU are extremely compatible with the surrounding
Paso Robles Office: 1948 Spring Street Paso Robles, CA 93446-1620 T 805-238-2300 F 805-238-2322
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March 27, 2023
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neighborhood. As presented, the home and the ADU should be approved as a matter of right. The
issue presented in this case arises from the unique physical characteristics of the property created
by a drainage channel that divides the property. Approximately 65% of the property is located on
the southeast side of the drainage channel and is easily accessible from Patricia Drive. The
remainder of the property is located on the northwest side of the channel and is accessible only by
crossing the channel.
Request to Council
The Michaels’ application requests approval of the ADU on the Patricia side of the
property. The ADU will be located on the northwest side of the property. Access for the ADU
will be by way of a small non-vehicular bridge to be constructed across the drainage channel.The
bridge is designed for pedestrian and small equipment passage to allow access to the landlocked
northwest portion of the property. Because the bridge will necessarily touch within the creek
setback, City development standards provide that the Council make eight findings supporting
approval. (The actual ground disturbance within the setback will be minimal and limited to the
support footings. Based on the evidence, all these findings can be made.
Before analyzing the required findings in detail, it is important to note that regardless of
whether an ADU is built, the Michaels will need some type of crossing to both maintain and enjoy
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35% of their property.Such a crossing has been an implied condition for the use of this property
both at the time the City approved the subdivision of the area and at the time it was purchased by
the Michaels family. There simply must be a way to access the northwest portion of the property
and a bridge crossing is the only viable alternative. Without a bridge crossing, the Michaels face
the following situation:
(i) They will be required to pass through the bed of the drainage area which means that
they either create a path through continuous motion or they will “machete” their
way through for each crossing. It is important to note that necessary and frequent
crossings will not be limited to foot traffic. Rather, any equipment necessary to
maintain the northwest portion of the property will need to be continually dragged
through the channel bottom. There is no question that even continual foot traffic,
must less equipment crossings, will be much more intrusive on any riparian habitat
than the one-time construction of a virtually non-intrusive bridge. In short, approval
of the bridge is (i) required to allow the Michaels to use and maintain their property;
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In fact, due to constraints on the property including the riparian area, a City sewer easement along
the northwest lot line and the City-approved manmade fill lot, the Michaels will be using substantially less
of the lot area than the surrounding neighbors.
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As referenced below, the opposition to this project is not really concerned with a bridge over the
drainage channel. They simply don’t want
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and (ii) is the most effective and least environmentally intrusive method to access
the northwest 35% of the property. These two reason, in themselves, dictate
approval of the modest bridge.
(ii) During the rainy season, which has been particularly impactful in recent months,
there will not be any feasible way for the Michaels to access 35% of their property
except possibly, during times of lighter rain, by utilizing a makeshift plywood or
wooden passage. (It should be noted that several properties between the Michaels’
property and Clover Drive have taken matters into their own hands and dropped in
their own makeshift crossings.) Anyone with any significant mobility issues (such
as Eric’s father) would not beable to use makeshift crossings. Again, a bridge is a
necessity in order for this family to safely maintain and enjoy the use of their
property year-round.
(iii)At the City’s request, the Michaels provided a biological study to ensure that the
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That
proposed bridge would not have any significant impact on the environment.
study was further peer-reviewed by the City. The conclusion of both the initial
analysis and peer review was that, with the implementation of certain mitigation
measures, the bridge would have no significant impact on the environment. In
order to implement those determinations and to ensure environmental protection,
the Michaels executed a City-provided Mitigation Agreement (a copy of which is
attached). The crux of this is that the bridge should be a non-issue environmentally
which basically makes it also a non-issue for granting a setback exemption. What
further evidence does the City need that the requested and necessary bridge was
carefully and thoughtfully designed than the environmental studies and the
mitigation agreement? If setbacks were the real issue, why was an environmental
study required? Why was the Mitigation Agreement requested by the City and
signed by the Michaels?
The prefatory comments in the previous paragraphs are intended to bring into focus the
real issue that Council must address. This project is not about a single-family residence or an ADU.
Those, legally speaking, are entitlements as a matter of right and are irrelevant to the consideration
of this application. Rather, the only real issue before the Council is whether the application to
install a minimally intrusive non-vehicular bridge, necessary to access 35% of their property,
should be approved.As set forth below, the evidence not only supports, but requires that the
Council approve the application for the bridge.
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City Creek Setbacks
The City of San Luis Obispo has wisely chosen to implement protection for riparian areas
as set forth in Section 17.70.030 of the City Municipal Code. The relevant language to the
Council’s consideration is found in Subsection F.1 which provides that “Structures larger than 120
square feet” shall not be constructed within a creek setback. Assuming that a bridge qualifies as a
structure, the total area proposed is 416 square feet most of which will be located off the ground
spanning the channel. The land footprint of the bridge will be significantly less than 120 square
feet. Thus, the overall impact of the proposed bridge is minimal.
The City has provided for exceptions to Creek Setbacks in Section 17.70.030 G.4. of the
Municipal Code. An application for a Creek Setback exception should be supported by eight
findings and the proposed bridge satisfies all eight criteria as set forth below:
Finding 4.c.(1).
The location and design of the feature receiving the exception will minimize impacts to
scenic resources, water quality, and riparian habitat including opportunities for wildlife
habitation, rest, and movement.
Discussion
It is critical to note that the finding is carefully worded to be limited to the feature
receiving the exception and not to the project as a whole. Thus, while project opponents
focus on the placement of the ADU, such a consideration is irrelevant here. The Council’s
findings are limited to the consideration of the proposed bridge that is critical to the
Michaels’ maintenance, use and enjoyment of their property independently of the
construction of the home or the ADU. As will be demonstrated at the hearing, the location
of the bridge is based on both biological, aesthetic and engineering considerations and is
placed in the location which will have little or no impact on scenic resources, water quality
or riparian habitat. This is supported by both the independently peer-reviewed biological
report submitted by the Michaels and the Mitigation Agreement executed by the Michaels.
The necessity and the appropriate design and location of the bridge become all the more
apparent when the alternatives are considered. As noted above, the Michaels simply have
to be able to meaningfully access the northwest 35% of their property. This need is more
than just simple enjoyment (which is enough, in itself), but the Michaels have an obligation
to maintain all of their property which will require labor and equipment to be moved across
the channel. It would seem to be beyond dispute that the location and design of the
proposed bridge is superior, in every sense, to the damage and intrusion from the pedestrian
alternative.
Finding 4.c.(2)
The exception will not limit the City’s design option for providing flood control measures
that are needed to achieve adopted City flood policies.
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Discussion
There is no apparent issue on this finding. The bridge will have no impact on any
known flood control measure, as it is appropriately located above the identified 100-year
flood level. The channel is a relatively short run for drainage from parts of Bishop’s Peak
and portions of the surrounding Ferrini Heights development. The bridge will have no
impact.
Finding 4.c.(3)
The exception will not prevent the implementation of City-adopted plans, nor increase the
adverse economic effects of implementing such plans.
Discussion
The applicant is not aware of any City-adopted plans that will be affected in any
manner by the installation of the bridge, and nor have City staff mentioned any.
Finding 4.c.(4)
There are circumstances applying to the site, such as size, shape, or topography, which do
not apply generally to land in the vicinity with the same zoning, that would deprive the
property of privileges enjoyed by other property in the vicinity with the same zoning.
Discussion
There is no question that this finding can (and in fact must) be made. The Michaels
property is a large flag lot located in the middle of the Ferrini Heights development and
surrounded by other single-family residences. It was created upon the City-approved
subdivision map recorded in 1985 (Tract 1182). Most importantly, the property is divided
by a drainage channel leaving 35% of the property accessible only by crossing through or
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over the drainage channel.The applicant has searched City records and Google Earth and
found no properties in this vicinity that have the size, shape, and topography that, without
a bridge crossing, would deprive them of the use of a significant portion of their property.
On the other hand, there are several properties within the City that, due to unique size,
shape or topographical features, maintain bridges similar to that requested here. (See 141
Chorro Street, 3074 and 3094 Bahia Court. Photos attached).
Finding 4.c.(5)
The exception will not constitute a grant of special privilege—an entitlement inconsistent
with the limitations upon other properties in the vicinity with the same zoning.
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It should be noted that the drainage channel, while having riparian characteristics, also serves as
an important drainage channel for City-approved development in the Ferrini Heights area.
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Discussion
This finding is seemingly not applicable because there are no properties in the
vicinity with significant “landlocked” areas due to the bisection from the drainage channel.
In fact, the exception allows the Michaels to maintain, use and enjoy their property in the
same manner as all other property owners in the vicinity.
Finding 4.c.(6)
The exception will not be detrimental to the public welfare or injurious to other property
in the area of the project or downstream.
Discussion
There has been no indication or argument that the installation of the bridge would
have any negative impact on the public welfare or be injurious to any other property. The
channel fully disappears into the ground about 200 yards away from the Michaels lot.
Finding 4.c.(7)
Site development cannot be feasibly accomplished with a redesign of the project.
Discussion
The short answer for this finding is that this is not possible. There is no redesign of
the project, in any form, that will take away the need for the Michaels to access 35% of
their property. It is imply impossible to access 35% of the property without crossing the
drainage channel in some fashion. Whether they build the proposed SFR and ADU or
alternatively install a single “tiny house”, they still must be able to access their property
for the purpose of maintenance, use and enjoyment and, as noted above, the only feasible
way to accomplish that necessity is by the proposed bridge. There is simply no other viable
alternative that ensures such access while protecting the riparian habitat. In short, going
over is far superior to going through on all levels. Moving buildings around, even if
possible, does nothing to remove the need for that access. There is no feasible redesign.
Finding 4.c.(8)
Redesign of the project would deny the property owner reasonable use of the property.
“Reasonable use of the property” in the case of new development may include less
development than indicated by zoning.
Discussion
Staff and the opposition focus on this finding and, without support, contend that the
project, in its entirety, could be redesigned and thereby eliminate the need for the bridge.
As noted frequently above, that is simply wrong. This is a unique piece of property, as
approved by the City in adoption of Tract 1182, and a bridge is required for the
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reasonable use of the property. Without a bridge, 35% of the property will be
rendered unusable.
This finding, however, brings up the crux of the staff’s recommendation and the
project opponents. Their focus on this project has been to redesign the layout of the project
so that the ADU is moved from the northwest portion to the southwest. In other words,
put the ADU in someone else’s backyard.If the project opponents were to be candid,
they would have to admit that without the ADU, there wouldn’t be any issue with this
project. In mischaracterizing the issue before the Council, the staff report and the opposing
property owners ignore three critical factors.
First, as exhaustively noted above, because of the unique character of the property,
a bridge is necessary for the maintenance, use, and enjoyment of 35% of the area. I’m
certain that the project opponents living along the northwest boundary would like to
continue to have this part of the property serve as their private preserve, but it is the
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Michaels property not theirs.
Second, evidence will be presented at the hearing that the Michaels have spent
countless hours and made many changes in an effort to placate their neighbors and avoid
the riparian setbacks and have arrived at the proposed project as the design that best meets
those objectives and the Michaels’ needs. The ADU has been relocated at least twice to
avoid any creek setbacks and to minimize any interference with the neighbors’ views and
privacy. (The latter was done in the spirit of trying to be a good neighbor).
Third, this finding is really directed to the redesign of the residential structures not
of a riparian related bridge. If the Michaels were requesting to construct the SFR or the
ADU in the riparian area, this provision would be relevant, and the Council could take a
potential redesign into account. In fact, as noted, that redesign has already happened.
The ADU was relocated and, more importantly, the bridge placed in the least intrusive
location. However, the relevant consideration here is a bridge which, by its nature, will be
located in creek setbacks. In those very limited situations such as this, where a bridge is
necessary to allow for reasonable use of property, the Council is bound to allow the
installation of such a bridge.
Regulatory Taking by the City of San Luis Obispo
The evidence presented requires that the Council approve the application to install a bridge
across the drainage channel to access the northwest portion of the property. Moreover, based on
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One neighboring property has a bucket hanging from a rope onto the Michaels’ property. The
bucket often has fruit and other food in it. The only seeming purpose of this bucket is to entice wildlife
(likely deer) into the Michaels’ lot..
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the historical activities surrounding this property and the thinly-veiled desires of the surrounding
property owners, the failure to approve the bridge could very well subject the City to a claim that
they are taking the Michael’s property for the private benefit of the neighboring property owners
without the payment of just compensation.
This lot was created in 1985 by the filing of the City-approved Subdivision Tract Map
1182. A review of that Map shows that no other lot within the subdividing area was subject to the
topographical issues presented by the Michaels’ lot. No other lot compares in size, access and,
most importantly, the bifurcation of the lot by the drainage channel which leaves 35% of the area
(and 35% of the permitted building envelope) landlocked. At the time of the Map recording, the
City might have been able to require an open space easement or other limiting overlay to limit the
use of the landlocked area. It did not. Therefore, it is clear that both the City and the subdivider
intended that the landlocked 35% of the property would be put to a beneficial use and of course,
that the permitted building envelope on that part of the lot be used. Given the difficulty in crossing
the drainage channel (either on foot or with the equipment necessary to maintain or otherwise
enjoy that area), it is inconceivable that, absent any written indication in the record otherwise, that
the City and the subdivider intended that some type of channel crossing would be required and
allowed. Certainly, anyone investing in the purchase of the property- such as the Michaels - would
have expected that, after taking the necessary precautions to minimize the impact on the riparian
area, they would be able to construct a non-intrusive bridge to access the landlocked area.
After the approval of the Map, development occurred on all sides of the subject property
so that now, as intended, it is surrounding by single-family residential homes. During the period
while the Michaels’ property remained undeveloped, the surrounding single-family residential
homes have grown accustomed to treating the property as their own private park. Many contiguous
neighbors have gates opening onto the Michaels’s property, others are obviously feeding wildlife
on the property and most admit to exploring the channel either by themselves or with their dogs.
The neighbors enjoyed the property so much (and realized the value that the “open space” added
to their homes), that at one time, there was a movement among the neighbors to acquire the
property so that the they could have their own private version of “Gramercy Park”. The fundraising
was unsuccessful. Now the neighbors are attempting to seize this opportunity to have the City
intercede where they were unsuccessful. They want the City to deny an application for a non-
intrusive, simple bridge. If the bridge is denied, the northwest portion of the property will be
virtually unusable.
Under these dual circumstances, the creation of the lot by subdivision and the neighbors’
desire to create a private park, denial of the bridge would result in a unique set of facts that would
result in an unconstitutional taking of private property. We note and recognize the general rule that
a regulation that leaves some value in property, is not a traditional taking. However, we also note
that “a regulation may effect a taking though…it does not involve physical invasion and leaves the
property owner some economically beneficial use of his property.” Kavanou v. Santa Monica Rent
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th
Control Bd. (1979) 16 Cal. 4761,774 (See also, NJD, Ltd. v. City of San Dimas (2003) 110 Cal.
th
App. 4
1428, 1436.Each of these cases cite many factors to be considered when there is some
economically viable use remaining after the regulation. We set out below, several factors that
should be taken into consideration.
The economic impact of the regulation on the property owner. In this case, 35% of
the property will be basically unusable if the bridge is denied. Access through the drainage
channel will be extremely difficult and, depending on the age and vitality of the residents,
could be virtually impossible. Moreover, not only would the landlocked portion be
rendered useless, it would also be an economic and physical drain on the property owner.
Because of liability issues and City ordinances relating to property ownership, the owners
will need to maintain their property and such maintenance will require some type of
mowing, trenching or cultivation equipment to traverse the drainage channel. Without a
bridge, this maintenance will be either impossible or extremely cumbersome and
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expensive.
The extent to which the regulation has interfered with the distinct investment-backed
expectations of the property owner. When purchasing the property without any open
space easement or other land use limitations, the Michaels (as would any reasonable
person), had every right to expect that they would be able to use their City-approved lot
with a City-approved building envelope on each side of the drainage channel. Whether
they intended to use it for an ADU, a gazebo, or as an entertainment area, made no
difference. They were buying the entire property (and paying a premium) because they
were obtaining a large area. If a bridge is not allowed, a significant portion of the lot they
purchased (35%) will be not only unusable but will become a maintenance and liability
albatross around their necks.
The character of the government action. We do not argue that the City does not have
the right to regulate creek setbacks. In fact, we applaud the City for its foresight in
protecting urban riparian areas. However, imposing the regulation to prohibit a well-
designed, non-imposing bridge, is the antithesis of what the creek setback regulations
intended. As noted above, the bridge has been designed and planned to be installed in a
6
It should also be noted that proper maintenance and safety require both irrigation and
electrical power to the landlocked property. The plan is to install that power under the bridge
and minimize the impact on the channel. Without the bridge, irrigation and electrical will still
have to be provided).
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manner that eliminates any negative environmental impacts. (Remember, the independent
environmental review found, that based upon the mitigation agreement signed by the
Michaels no impact from the bridge.) This is exactly in keeping with both the letter and
the spirit of the setback regulations. Conversely, not installing a bridge will result in
pedestrians and equipment continually going back and forth across the channel resulting
in far more impacts to the riparian area than a simple bridge. The character of the Council’s
action in denying the bridge would not be at all environmental in nature but would be to
appease the desires of the neighbors and could well be determined to be a taking.
Whether the action prevents the best use of the land. The best and only use of this land
is for single-family residential development and, admittedly, without a bridge a single-
family residence can still be built. However, in response to the housing crisis, California
has enacted legislation that encourages local government agencies to adopt ordinances to
allow for the construction of ADUs as a secondary unit on a single-family residential lot.
In line with this legislative mandate, the City of San Luis Obispo enacted Section
17.86.020 of its municipal code in order to address the critically limited housing
availability. Under that Ordinance, an ADU is not only allowed but encouraged on the
Michaels’ lot. In fact, given the size of the Michaels’ lot this would seem to be the perfect
location for an ADU. If the bridge is denied, it is extremely unlikely that an ADU will be
approved at the most desired location because of access issues. The Michaels will proceed
with the construction of their home but the housing stock of the City will be missing one
more unit. Obviously, the best use of the land, in line with legislative edicts and City
Ordinances, is for an ADU to be located on the northwest portion of the property. Denial
of the bridge therefore is inconsistent with the best use of the land and, therefore, supports
a takings claim.
The City should also not lose sight of the fact that the opposition to the approval of
the setback has nothing to do with environmental concerns and everything to do with the
“not in my backyard” attitude that makes solving housing problems in California so
difficult. Does anyone really question whether the few neighbors would have rallied against
the bridge if the ADU was not an element of the project? The Council should recognize the
opposition for what it is: NIMBYism. Solving the housing problem is the responsibility of
everyone and the fact that an ADU is going into an affluent area and might interfere with
the private preserve enjoyed by the neighbors is not an appropriate response. The bridge is
designed and located to eliminate any significant environmental impact to the riparian area.
The ADU is located outside the setback area and in the location that least interferes with
the neighboring views. This is exactly the type of project envisioned by the California
AddressAPNYear BuiltNotes
1391 San Marcos003-772-0151974No Sensitive Site Design Review
Court(aerial north)
1369 San Marcos003-772-0101973No Sensitive Site Design Review
Court(aerial south)
841 Patricia Drive – ARCH-0040-2021
Examples of ExistingPrivate Creek Crossings
1 of 4
3074 Bahia Court004-683-0091971No Sensitive Site Design Review
(Aerial north)
3094 Bahia Court004-683-0102006ARCMI-132-03, Minor/Incidental
(aerial south)Architecture Review for new house on
sensitive site.
841 Patricia Drive – ARCH-0040-2021
Examples of ExistingPrivate Creek Crossings
2 of 4
139 Chorro Street 001-014-0611983No Sensitive Site Design Review
(aerial north)
141 Chorro Street 001-014-0631989 and 19921989: ARC 147-88 and USE (A15-89)
(aerial south)
841 Patricia Drive–ARCH-0040-2021
Examples of ExistingPrivate Creek Crossings
3of 4
841 Patricia Drive–ARCH-0040-2021
Examples of ExistingPrivate Creek Crossings
4of 4
City of San Luis Obispo, Community Development, 919 Palm Street, San Luis Obispo, CA, 93401-3218, 805.781.7170, slocity.org
July 26, 2022
Oasis Associates
Attn: Carol Florence
3427 Miguelito Ct
San Luis Obispo CA 93401
SUBJECT: Applications ARCH-0040-2021 and EID-0547-2021 (841 Patricia)
On July 15, 2022, I reviewed the Initial Study prepared to evaluate your project's potential
significant effects on the environment. I found that although the Initial Study identified
that the proposed project could have potentially significant effects, there will not be a
significant effect in this case because of the mitigation measures either incorporated into
the project or developed during our environmental analysis of your project which will either
avoid or mitigate the effects to a point where they are no longer significant. A Mitigated
Negative Declaration of Environmental Impact will be prepared. A copy of the Initial
Study, which was the basis for my determination, is attached for your review.
State law requires that the applicant agree to project mitigation measures prior to your
project being scheduled for action by a City decision-making body. I have enclosed an
Applicant Acceptance of Mitigation Measures agreement for your review and signature.
The agreement lists the recommended mitigation measures as well as provides a
signature block to indicate your acceptance. It is recommended that you sign and return
the attached agreement as soon as possible in order to avoid project-processing delays.
A Notice of our intention to adopt the Mitigated Negative Declaration will be prepared and
a public hearing on the environmental document and the project will be scheduled before
a decision making body. The decision making body may reverse my decision to prepare
a Mitigated Negative Declaration or may add or delete mitigation measures based on their
review of the project and public comment received at the public hearing.
As part of the environmental review process, it has been determined that this project is
subject to Section 711.4 of the California Fish and Game Code which establishes a Fish
and Game filing fee for the processing of environmental documents subject to the
California Environmental Quality Act. The fees are intended to defray the costs incurred
by the California Department of Fish and Game in managing and protecting fish and
wildlife trust resources. Because it has been determined that your project is subject to
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Fish and Game fees, you will need to pay an additional fee of $2,598.00prior to the
project going before the hearing body. Please make your check for $ 2,598.00 payable
to the County of San Luis Obispo Clerk-Recorder. The fees are paid to the State of
California by the County of San Luis Obispo at the time the Notice of Determination if
filed. Forward this check to the Community Development Department along with the
signed mitigation agreement.
If you have any questions, please contact me at 781-7166 as soon as possible.
Sincerely,
Brian Leveille
Senior Planner
Enclosures: Initial Study
Mitigation Agreement
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CEQA Environmental Document Filing Fees: https://wildlife.ca.gov/Conservation/Environmental-
Review/CEQA/Fees; includes $50.00 County Clerk Processing Fee.
Applicant Acceptance of Mitigation Measures
Project: Michaels Residence (841 Patricia Lane)
This agreement is entered into by and between the City of San Luis Obispo and Eric
and Julie Michaels on the _______ day of ________________, 2022. The following
measures are included in the project to mitigate potential adverse environmental
impacts. Please sign the original and return it to the Community Development
Department.
REQUIRED MITIGATION AND MONITORING PROGRAMS
Air Quality
Mitigation Measure AQ 1: During all construction activities and use of diesel vehicles,
the Applicant shall implement the following idling control techniques:
1. The following idling restrictions shall be implemented for equipment:
a. Staging and queuing areas shall not be located within 1,000 feet of sensitive
receptors if feasible;
b. Diesel idling within 1,000 feet of sensitive receptors shall not be permitted;
c.Use of alternative fueled equipment shall be used whenever possible; and
d. Signs that specify the no idling requirements shall be posted and enforced at the
construction site.
2. On-road diesel vehicles shall comply with Section 2485 of Title 13 of the California
Code of Regulations. This regulation limits idling from diesel-fueled commercial
motor vehicles with gross vehicular weight ratings of more than 10,000 pounds and
licensed for operation on highways. It applies to California and non-California based
vehicles. In general, the regulation specifies that drivers of said vehicles:
a. or greater than 5 minutes at
any location, except as noted in Subsection (d) of the regulation; and
b. Shall not operate a diesel-fueled auxiliary power system (APS) to power a
heater, air conditioner, or any ancillary equipment on that vehicle during sleeping
or resting in a sleeper berth for greater than 5 minutes at any location when
within 1,000 feet of a restricted area, except as noted in Subsection (d) of the
regulation.
Signs must be posted in the designated queuing areas and job sites to remind
drivers of the 5-minute idling limit. The specific requirements and exceptions in the
regulation can be reviewed at the following website: www.arb.ca.gov/msprog/truck-
idling/2485.pdf.
Mitigation Measure AQ 2:During all construction and ground-disturbing activities, the
Applicant shall implement the following particulate matter control measures and detail
each measure on the project grading and building plans:
1. Reduce the amount of disturbed area where possible.
2. Use water trucks or sprinkler systems in sufficient quantities to prevent airborne dust
from leaving the site and from exceeding the San Luis Obispo County Air Pollution
Control District (SLOAPCD) limit of 20% opacity for no greater than 3 minutes in any
60-minute period. Increased watering frequency shall be required whenever wind
speeds exceed 15 miles per hour (mph) and cessation of grading activities during
periods of winds over 25 mph. Reclaimed (non-potable) water is to be used in all
construction and dust-control work.
3. All dirt stockpile areas (if any) shall be sprayed daily and covered with tarps or other
dust barriers as needed.
4. Permanent dust control measures identified in the approved project revegetation and
landscape plans shall be implemented as soon as possible, following completion of
any soil-disturbing activities.
5. Exposed grounds that are planned to be reworked at dates greater than 1 month
after initial grading shall be sown with a fast-germinating, non-invasive, grass seed
and watered until vegetation is established.
6. All disturbed soil areas not subject to revegetation shall be stabilized using approved
chemical binders, jute netting, or other methods approved in advance by the
SLOAPCD.
7. All roadways, driveways, sidewalks, etc. to be paved shall be completed as soon as
possible. In addition, building pads shall be laid as soon as possible after grading
unless seeding or soil binders are used.
8. Vehicle speed for all construction vehicles shall not exceed 15 mph on any unpaved
surface at the construction site.
9. All trucks hauling dirt, sand, soil, or other loose materials are to be covered or shall
maintain at least 2 feet of freeboard (minimum vertical distance between top of load
and top of trailer) in accordance with California Vehicle Code Section 23114.
10. Install wheel washers where vehicles enter and exit unpaved roads onto streets or
wash off trucks and equipment leaving the site. Sweep streets at the end of each
day if visible soil material is carried onto adjacent paved roads.
11. Water sweepers shall be used with reclaimed water where feasible. Roads shall be
pre-wetted prior to sweeping when feasible.
12. All PM10 mitigation measures required shall be shown on grading and building
plans.
13. The contractor or builder shall designate a person or persons to monitor the fugitive
dust emissions and enhance the implementation of the measures as necessary to
minimize dust complaints, reduce visible emissions below the SLOAPCD limit of
20% opacity for no greater than 3 minutes in any 60-minute period. Their duties shall
include holidays and weekend periods when work may not be in progress. The name
and telephone number of such persons shall be provided to the SLOAPCD
Compliance Division prior to the start of any site preparation, grading, or earthwork.
14. All off-road construction equipment shall be Tier 3 or higher.
Mitigation Measure AQ 3: Prior to initiation of site preparation/construction activities,
the Applicant shall retain a registered geologist to conduct a geologic evaluation of the
property including sampling and testing for naturally occurring asbestos in full
compliance with California Air Resources Board (CARB) Air Toxics Control Measure
(ATCM) for Construction, Grading, Quarrying, and Surface Mining Operations (CARB
ATCM Section 93105) and SLOAPCD requirements. This geologic evaluation shall be
submitted to the City Community Development Department upon completion. If the
geologic evaluation determines that the project would not have the potential to disturb
naturally occurring asbestos (NOA), the Applicant must file an Asbestos ATCM
exemption request with the SLOAPCD. If NOA is determined to be present on-site,
proposed earthwork and construction activities shall be conducted in full compliance
with the various regulatory jurisdictions regarding NOA, including the CARB ATCM for
Construction, Grading, Quarrying, and Surface Mining Operations (CARB ATCM
Section 93105) and requirements stipulated in the National Emission Standards for
Hazardous Air Pollutants (NESHAP) (40 Code of Federal Regulations 61, Subpart M
Asbestos). These requirements include, but are not limited to, the following:
1. Written notification, within at least 10 business days of activities commencing, to the
SLOAPCD;
2. Preparation of an asbestos survey conducted by a Certified Asbestos Consultant;
and
3. Implementation of applicable removal and disposal protocol and requirements for
identified NOA.
Monitoring Program: Measures AQ-1 through AQ-3 shall be incorporated into project
grading and building plans for review and approval by the City Community
Development Department. Compliance shall be verified by the City during regular
inspections, in coordination with the SLOAPCD, as necessary. The Applicant shall
submit the geologic evaluation detailed in Measure AQ-3 to the City Community
Development Department upon completion.
Biological Resources
Mitigation Measure BIO-1: If any ground disturbance will occur during the nesting bird
season (February 1September 15), prior to any ground-disturbing activity, a
preconstruction nesting bird survey shall be conducted by a qualified biologist within 1
week prior to the start of activities. If nesting birds are located on or near the project
site, they shall be avoided until they have successfully fledged, or the nest is no longer
deemed active. A non-disturbance buffer of 50 feet will be implemented for non-listed,
passerine species and a 250-foot buffer will be implemented for raptor species. No
construction activities will be permitted within established nesting bird buffers until a
qualified biologist has determined that the young have fledged or that proposed
construction activities would not cause adverse impacts to the nest, adults, eggs, or
young. If special-status avian species are identified, no work shall be conducted until an
appropriate buffer is determined in coordination with the City and the U.S. Fish and
Wildlife Service (USFWS) and/or California Department of Fish and Wildlife (CDFW)
Monitoring Program, BIO 1: The survey requirements of Mitigation Measure BIO-1
shall be submitted to the City for review and approval. Compliance shall be verified
through submittal of a nesting migratory bird survey report to the City Community
Development Department.
Mitigation Measure BIO-2: All utility extensions required to cross the creek, which are
necessary to serve the ADU, shall be placed within or attached to the bridge span. No
trenching across the creek shall occur for the extension of utilities to the ADU.
Monitoring Program BIO 2: The requirement of Mitigation Measure BIO-2 that the
utility extensions to the ADU be attached to the bridge span (either within or hanging
from) rather than below ground shall be specified on the project plans and submitted
to the City. Compliance shall be verified through submittal of a nesting migratory bird
survey report to the City Community Development Department.
Mitigation Measure BIO-3: Prior to issuance of grading and building permits, the
Applicant shall provide copies of the permits/authorizations from affected resource
agencies, including a final revegetation plan that is consistent with the revegetation plan
provided in the Addendum to the Biological Resources Assessment (BRA, David Wolff
Environmental, November 10, 2021) for approval by the City Natural Sustainability and
Natural Resources Official, Community Development Department. Plans submitted for
grading and building permits shall show tree removals consistent with the November
2021 revegetation plan, including the locations and quantities of the maximum number
of trees identified for removal to facilitate the bridge construction. Vegetation removal
shall be kept to the minimum necessary for bridge clearance and construction of the
necessary footings and supports. Initial removal of vegetation shall be monitored full-
time by a qualified biologist, and weekly spot-check monitoring shall continue
throughout the construction of the bridge structure. Supplemental irrigation shall be
provided to the revegetated area of the riparian corridor for three years, and maintained
and monitored for five years, to meet 80% survival success criteria after two years
without supplemental irrigation. Monitoring reports demonstrating compliance with the
revegetation plan shall be prepared and submitted to the affected resource agencies
and the City annually. Permits and/or authorizations from the regulatory agencies
(CDFW, Regional Water Quality Control Board, and USACE), or documentation from
the respective agency that the permit/authorization is required, shall be submitted to the
City prior to any grading and/or construction activities within the on-site riparian area
Monitoring Program BIO 3: Requirements of Mitigation Measure BIO-3 shall be
submitted to the City and affected agencies for approval. Compliance shall be
verified through submittal of the approved revegetation plan to the City Community
Development Department. Revegetation compliance shall be monitored by the City
through annual reporting following implementation.
Mitigation Measure BIO-4: All equipment and vehicles shall be checked and
maintained daily to prevent spills of fuel, oil, and other hazardous materials. A
designated staging area shall be established for vehicle/equipment parking and storage
of fuel, lubricants, and solvents a minimum of 30-feet outside of the riparian area on-
site. All fueling and maintenance activities shall take place in the designated staging
area
Monitoring Program BIO 4: Requirements of Mitigation Measure BIO-4 shall be
incorporated into the project grading and building plans for review and approval by
the City Community Development Department. Compliance shall be verified by the
City prior to the start of construction and during regular inspections, as necessary.
Cultural Resources
Mitigation Measure CR-1: If cultural resources are encountered during subsurface
earthwork activities, all ground-disturbing activities within a 25-foot radius of the find
shall cease and the City shall be notified immediately. Work shall not continue until a
City-qualified archaeologist assesses the find and determines the need for further study.
If the find includes Native American-affiliated materials, a local Native American tribal
representative will be contacted to work in conjunction with the City-approved
archaeologist to determine the need for further study. A standard inadvertent discovery
clause shall be included in every grading and construction contract to inform contractors
of this requirement. Any previously unidentified resources found during construction
shall be recorded on appropriate California Department of Parks and Recreation (DPR)
forms and evaluated for significance in terms of California Environmental Quality Act
(CEQA) criteria by a qualified archaeologist.
If the resource is determined significant under CEQA, the qualified archaeologist shall
prepare and implement a research design and archaeological data recovery plan, in
conjunction with locally affiliated Native American representative(s) as necessary, that
will capture those categories of data for which the site is significant. The archaeologist
shall also perform appropriate technical analysis, prepare a comprehensive report, and
file it with the Central Coast Information Center (CCIC), located at the University of
California, Santa Barbara, and provide for the permanent curation of the recovered
materials.
Monitoring Plan, CR-1: The conditions in Mitigation Measure CR-1 shall be noted on
all grading and construction plans. The City shall review and approve the City-
qualified archaeologist consistent with the Archaeological Resource Preservation
Program Guideline.
Hazards and Hazardous Materials
Implement Mitigation Measure AQ-3.
Monitoring Program: Mitigation Measure AQ-3 shall be incorporated into project
grading and building plans for review and approval by the City Community
Development Department. Compliance shall be verified by the City during regular
inspections, in coordination with the SLOAPCD, as necessary. The Applicant shall
submit the geologic evaluation detailed in Measure AQ-3 to the City Community
Development Department upon completion.
Hydrology and Water Quality
Implement Mitigation Measure BIO-4.
Monitoring Program: Requirements of Mitigation Measure BIO-4 shall be
incorporated into the project grading and building plans for review and approval by
the City Community Development Department. Compliance shall be verified by the
City prior to the start of construction and during regular inspections, as necessary
Land Use and Planning
Implement Mitigation Measure BIO-1 through BIO-4.
Monitoring Program: The survey requirements of Mitigation Measure BIO-1 shall be
incorporated into the project grading and building plans for review and approval by
the City Community Development Department. Compliance shall be verified through
submittal of a nesting migratory bird survey report to the City Community
Development Department.
The requirement of Mitigation Measure BIO-2 that the utility extensions to the ADU
be attached to the bridge span (either within or hanging from) rather than below
ground shall be specified on the project plans and submitted to the City. Compliance
shall be verified through submittal of a nesting migratory bird survey report to the
City Community Development Department.
Requirements of Mitigation Measure BIO-3 shall be submitted to the City and
affected agencies for approval. Compliance shall be verified through submittal of the
approved revegetation plan to the City Community Development Department.
Revegetation compliance shall be monitored by the City through annual reporting
following implementation.
Requirements of Mitigation Measure BIO-4 shall be incorporated into the project
grading and building plans for review and approval by the City Community
Development Department. Compliance shall be verified by the City prior to the start
of construction and during regular inspections, as necessary. Compliance shall be
verified by the City prior to the start of construction and during regular inspections,
as necessary
Noise
Mitigation Measure: N-1: For the entire duration of the construction phase of the
project, the following noise reduction measures shall be adhered to:
1. Stationary construction equipment that generates noise that exceeds 60 A-weighted
decibels (dBA) at the project boundaries shall be shielded with the most modern
noise control devices (i.e., mufflers, lagging, and/or motor enclosures).
2. Impact tools (e.g., jack hammers, pavement breakers, rock drills, etc.) used for
project construction shall be hydraulically or electrically powered wherever possible
to avoid noise associated with compressed air exhaust from pneumatically powered
tools.
3. Where use of pneumatic tools is unavoidable, an exhaust muffler on the compressed
air exhaust shall be used.
4. All
abatement methods installed, such as mufflers, engine enclosures, and engine
vibration insulators, intact and operational.
5. All construction equipment shall undergo inspection at periodic intervals to ensure
proper maintenance and presence of noise control devices (e.g., mufflers,
shrouding, etc.).
Mitigation Measure: N-2: For the entire duration of the construction phase of the
project, the following noise reduction measures shall be adhered to:
Construction plans shall note construction hours, truck routes, and all construction noise
reduction measures and shall be reviewed and approved by the City Community
Development Department prior to issuance of grading/building permits. The City shall
provide and post signs stating these restrictions at construction entry sites prior to
commencement of construction and shall maintain these signs throughout the
construction phase of the project. All construction workers shall be briefed at a
preconstruction meeting on construction hour limitations and how, why, and where
noise reduction measures are to be implemented
Mitigation Measure: N-3: For all construction activity at the project site, additional
noise attenuation techniques shall be employed as needed to ensure that noise levels
are maintained within levels allowed by the City of San Luis Obispo Municipal Code,
Title 9, Chapter 9.12 (Noise Control). Such techniques shall include, but are not limited
to, the following:
Sound blankets shall be used on noise-generating equipment;
Stationary construction equipment that generates noise levels above 65 dBA at the
project boundaries shall be shielded with a barrier that meets a sound transmission
class (a rating of how well noise barriers attenuate sound) of 25;
All diesel equipment shall be operated with closed engine doors and shall be
equipped with factory-recommended mufflers;
The movement of construction-related vehicles, except for passenger vehicles,
along roadways adjacent to sensitive receptors shall be limited to the hours between
7:00 A.M. and 7:00 P.M., Monday through Saturday. No movement of heavy
equipment shall occur on Sundays or official holidays (e.g., Thanksgiving, Labor
Day); and
Temporary sound barriers shall be constructed between construction sites and
affected uses.
Construction plans shall note construction hours, truck routes, and all construction noise
reduction measures and shall be reviewed and approved by the City Community
Development Department prior to issuance of grading/building permits. The City shall
provide and post signs stating these restrictions at construction entry sites prior to
commencement of construction and shall maintain these signs throughout the
construction phase of the project. All construction workers shall be briefed at a
preconstruction meeting on construction hour limitations and how, why, and where
noise reduction measures are to be implemented
Monitoring Program: Construction plans shall note construction hours, truck routes,
and all construction noise reduction measures, and shall be reviewed and approved
by the City Community Development Department prior to issuance of
grading/building permits. Compliance shall be verified by the City prior to the start of
construction and during regular inspections, as necessary.
Tribal Cultural Resources
Implement Mitigation Measures CR-1.
Monitoring Program: The conditions in Mitigation Measure CR-1 shall be noted on all
grading and construction plans. The City shall review and approve the City-qualified
archaeologist consistent with the Archaeological Resource Preservation Program
Guidelines
Utilities and Service Systems
Implement AQ-1 through AQ-3, BIO-1 through BIO-4, CR-1, and N-1 through N-3.
Monitoring Program: : Mitigation Measures AQ-1 through AQ-3 shall be incorporated
into project grading and building plans for review and approval by the City
Community Development Department. Compliance shall be verified by the City
during regular inspections, in coordination with the SLOAPCD, as necessary. The
Applicant shall submit the geologic evaluation detailed in Mitigation Measure AQ-3 to
the City Community Development Department upon completion.
The survey requirements of Mitigation Measures BIO-1 shall be incorporated into the
project grading and building plans for review and approval by the City Community
Development Department. Compliance shall be verified through submittal of a
nesting migratory bird survey report to the City Community Development