HomeMy WebLinkAbout4/4/2023 Item 6a, AMMCG, LLP (2)
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
April 1, 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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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
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;
and (ii) is the most effective and least environmentally intrusive method to access
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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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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 be able 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
proposed bridge would not have any significant impact on the environment. That
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, whywas 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.
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
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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.
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
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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
2
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.
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.
2
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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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 detrimentalto 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
reasonable use of the property. Without a bridge, 35% of the property will be
rendered unusable.
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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
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
3
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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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
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
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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
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
4
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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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” attitudethat 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
Legislature and the City in adopting the ADU laws and the Council should not allow
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NIMBYism to creep into the ADU approval process as it has in other California cities.
5
Jason Riddick et al vs City of Malibu, 2022, in which the Superior Court of California found
against the City of Malibu on all grounds.
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Conclusion
In closing, we remind the Council of three things:
The SFR is an entitlement as a matter of right. Nothing in the Staff report questions
that entitlement or provides any reason for the denial. After 2 ½ years, it is time to
allow the Michaels to build their home and move to San Luis Obispo. Regardless of
the action taken by the Council, the Michaels’ home should be approved.
The ADU is perfectly in line with California law and City Ordinances.There is no basis
for the Council to deny the ADU and it should be approved.
The only issue that should even give pause in the application is the request for an
exception to the Creek setback standards. As noted above, the bridge is necessary to (i)
access 35% of the property; and (ii) eliminate any environmental impacts to the riparian
area surrounding channel. The bridge should be approved.
Very truly yours,
ADAMSKI MOROSKI MADDEN
CUMBERLAND & GREEN LLP
THOMAS D. GREEN
Cc: Christine Dietrick (via email)
Michael Codron (via email)