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HomeMy WebLinkAbout06/07/2011, PH 1 - APPEAL OF UTILITIES DIRECTOR'S DECISION RELATIVE TO ASSESSMENT OF WATER AND SEWER IMPACT FEES FOR A Ecounat Mced=D� June 7,2011 Agenda aepont "� piq 1 CITY OF SAN LUIS OBISPO FROM: Came Mattingly, Utilities Director �- Prepared By: Gary W. Henderson, Water Division Manager SUBJECT: APPEAL OF UTILITIES DIRECTOR'S DECISION RELATIVE TO ASSESSMENT OF WATER AND SEWER IMPACT FEES FOR A MIXED USE PROJECT AT 1130 GARDEN STREET RECOMMENDATION Adopt a resolution denying the appeal and upholding the Utilities Director's decision to require assessment of water and sewer impact fees for the mixed use development project proposed for the property located at 1130 Garden Street. DISCUSSION Summary The project applicant, Mr. Alex Benson, is proposing to convert a commercial building located at 1130 Garden Street to a mixed use project which would provide commercial space on the first floor and a residential unit on the second floor. Based on City policies, water and sewer impact fees would be assessed for the residential unit which would be considered a multi-family unit as the basis for the impact fees. Mr. Benson is appealing the Utilities Director's decision relative to the assessment of water and sewer impacts fees related to the conversion of the second floor to a residential unit (see Attachment 1) based on the historical use of the building. The applicant's research indicates that the second floor of the building was used as a residential unit up to the early 1970's. It is Mr. Benson's contention that,because of the past residential use, the proposed residential unit should be exempt from the water and sewer impact fees. One of the main reasons cited for not assessing the impact fees is that the residential use of the second floor is just the "re-establishment"of the use that existed prior to the early 1970's. Per the discussion in Attachment 1, the Municipal Code Section 4.20.140.E.1. (Attachment 2) establishes the date of October 4, 1991 as the basis for establishment of the "existing development"for assessing water and sewer impact fees. It should be noted that if the second floor was retained for commercial use, there would not be additional water and sewer impact fees assessed. Proposed Project Description The current proposed project would convert the existing commercial building to a mixed use of commercial use on the first floor and residential on the second floor. The residential unit proposed for the second floor would provide approximately 1,700 square feet of living space. PH1-1 1130 Garden Street Appeal Page 2 Water and Sewer Impact Fees The current methodology of assessing water and sewer impact fees was established in 1991. Assembly Bill 1600 requires that impact fees must have a"reasonable nexus" to the cost impacts that are associated with providing services to any new development. The City's water and sewer impact fees were developed and adopted to comply with this requirement. The City's methodology for establishing water and sewer impact fees is based on equivalent dwelling units ("EDU's) and estimated water and sewer use. For residential use, the impact fees were developed for average single family residences, multi-family residences, and apartment units. It should be noted that over time, the number of people living in each of these various residential customer types may change but the methodology does provide a "reasonable nexus" for assessing the impacts for providing water and sewer service to new development. For commercial developments, the impact fees are based on the meter size necessary to serve the water needs of a particular type of development. Water meters of a certain size will have a maximum flow rate which provides for changes that may occur in the future. For example, if a new commercial use moves into a building with a meter that is too small to provide the necessary water for the uses on site, the property owner would then apply to the City for a new larger meter and additional water and sewer impact fees would be assessed. Conversely, if a commercial property proposed changes, such as the situation for this project, and there was a larger meter serving the commercial portion of the project that could be "downsized", the project would be credited the difference between the fees for the new meters needed and the existing larger meter that was currently in place. This is not the case for the property at 1130 Garden Street, which is currently served by a YV meter and has the lowest impact fee. The basis for the application of the City's water and sewer impact fees complies with AB 1600 and does provide a reasonable nexus for assessing new development. Applicant Appeal The applicant has questioned the appropriateness of assessing the water and sewer impact fees for this specific project. Mr. Benson met with Utilities Department staff to discuss the appropriateness of the impact fees for this project. Following this meeting, his representative (Mr. Marshall Ochylski) met with the City Attorney and Utilities Director. Correspondence from the representative for the applicant (originally sent to the City on February 11, 2011) and the response from the City's Utilities Director to the specific issues raised in the correspondence and at the subsequent meeting are included in Attachment 1. The City Council adopted a resolution for establishing the methodology for impact fees on September 3, 1991 and the resolution went into effect one month later, which corresponds to the October date in the Municipal Code. It would appear at the time the City Council adopted the current methodology that it was the intent to establish the application for these fees based on development that currently exists and not on previous uses that may have existed many years in the past. PHI-2 1130 Garden Street Appeal Page 3 The two other issues raised in the correspondence were addressed in the City's response included as Attachment 1 to this report. Summary Mr. Alex Benson has requested that the City Council consider waiving the application of the water and sewer impact fees that would be assessed if the project planned for 1130 Garden Street converts the second floor use from commercial to residential use. City staff has determined that, consistent with other mixed use projects and City policies, the conversion of the second floor space to a residential unit appropriately would trigger the assessment of the water and sewer impact fees that are established for a"multi-family"unit. FISCAL IMPACT Water and sewer impact fees were established to ensure that new development pays its fair share of costs associated with providing these services. Appropriate assessment of the impact fees is consistent with the General Plan policy that new development pays its fair share. ALTERNATIVE Grant the appeal and direct staff to prepare a draft resolution. Municipal Code Section 4.20.140.E.1 clearly sets forth October 4, 1991 as the date upon which Council recognizes a prior use for purposes of assessing development impact fees. Granting the appeal would be precedent- setting and Council should only provide this direction if it desires that staff remove or modify the October 4, 1991 cut-off date from the Municipal Code. This action would create an unknown long-range negative financial impact on the water and sewer funds. Based on current code, the addition of a residential unit to the existing commercial facility at 1130 Garden Street requires the payment of development impact fees for a multi-family residential unit. Should Council grant the appeal for the project at 1130 Garden Street, the appropriate action would be: a. Articulate the basis for findings so staff can prepare the appropriate resolution; b. Direct staff to return to Council in a timely manner with a resolution granting the appeal and making appropriate findings. c. Direct staff to modify Municipal Code Section 4.20.140.E.1 by either removing or changing the cut-off date which would be based on the findings in(a.) above. ATTACHMENTS 1. Appeal from Mr. Alex Benson dated April 20, 2011 2. Municipal Code Section 4.20.140 3. Draft resolution denying an appeal of the Utilities Director's decision relative to assessment of water and sewer impact fees for a mixed use development project at 1130 Garden Street PHI-3 Filing Fee: $250.00 • Patdk3 RECEIVED 0 , �t >, 0 Cly �� NIA APR 20 1011 �j' 'REFER TO SECTION 4 San LUIS OBISPO SLO CITY CLERK APPEAL TO THE CITY COUNCIL SECTION 1. APPELLANT INFORMATION Fb /5;z401? A'Li5x oE�e�-onJ SAA L-Las oPisPd Cq 41240 Name Mailing Address and Zip Cod Mane Tax pb i,45Z7 /LIA4s4AUU s.E^f LyiS inAl,4A 64 T53*01 Representative's Name Mailing Address and Zip CVbde T7-oen/ /8a5� f- a QQ v+4 - 4ie9 Title N Phon6 Fax SECTION 2 SUBJECT OFAPPEAL 1. In accordance with the procedures set forth in Title 1, Chapter 1.20 of the San Luis Obispo Municipal Code (copy attached), I hereby appeal the decision of the: GA22e� L.Y (Name of Officer, Committee or Commission decision being appealed) 2. The date the decision being appealed was rendered: AP1Q/L— l/, 20 i / r 3. The application or project was entitled: bed St=eT X 00/¢ , 4. 1 discussed the matter with the following_Ci�r s1tSaYmePer. 6AAe16 M.4Ti'/.JULY P:ym- eir-K on O- D (Staff Member's Name and Department) (Dati) 5. Has this matter been the subject of a previous appeal? If so,when was it heard and by whom: /yo . SECTION 3. REASON FOR APPEAL Explain specifically what actionis you are appealing and why you believe the Council should consider your appeal. Include what evidence you have that supports your appeal. You may attach additional pages, if necessary. This form continues on the other side. Page 1 of 3 PILI-4__ Reason for Appeal continued r4.e45.1� SEE ATS A c-tfct z SECTION 4. APPELLANT'S RESPONSIBILITY The San Luis Obispo City Council values public participation in local government and encourages all forms of citizen involvement. However, due to real costs associated with City Council consideration of an appeal, including public notification, all appeals pertaining to a planning application or project are subject to a filing fee of$2511,which must accompany the appeal form. Your right to exercise an appeal comes with certain responsibilities. If you file an appeal, please understand that it must be heard within 45 days from filing this form. You will be notified in writing of the exact date your appeal will be heard before the Council. You or your representative will be expected to attend the public hearing, and to be prepared to make your case. Your testimony is limited to 10 minutes. A continuance may be granted under certain and unusual circumstances. If you feel you need to request a continuance, you must submit your request in writing to the City Clerk. Please be advised that if your request for continuance is received after the.appeal is noticed to the public, the Council may not be able to grant the request for continuance. Submitting a request for continuance does not guarantee that it will be granted;that action is at the discretion of the City Council. I hereby agree to appear and/or send a representative to appear on my behalf when said appeal is scheduled for public he ' before the City Council. (Signature of Appellant) (D ) Exceptions to the fee: 1)Appeals of Tree Committee decisions are$100. 2)The above-named appellant has already paid the City$250 to appeal this same matter to a City official or Council advisory body. This item is hereby calendared for cc: City Attorney City Manager Department Head Advisory Body Chairperson Advisory Body Cialson City Clerk(original) Page 2 of 3 zoos PH1-5 The Ochylski Law Group Post Office Box 14327 867 Palm Street San Luis Obispo,California 93406 Telephone:(805)544-1546 Facsimile:(805)544-4594 E-mail: larvgroup@sloleg4l.com Hand Delivery April 19,2011 Ms.Elaina Cano, City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo,CA 93401 Subject: Appeal of Water and Sewer Impact Fees 1130 Garden Street San Luis Obispo,California Project#100143 Dear Ms. Dietrick: This office represents Mr.Alex Benson,who is the owner of a building in the Downtown Commercial District located at 1130 Garden Street. This building is on the city's Master List of Historic Buildings. Kr_own as the Stover Building,it was the home and office. of Doctor Stover,a prominent physician in the early 1900's. The building was originally built as a one story medical office in the early 1910's. A two bedroom home was constructed as the second floor in the 1920's and served a residence for 5 decades thereafter. Sometime around 1970,the second floor began to be used as an office. It's not clear that the residential use was ever abandoned;however the use of the second floor was office. Around the same time the building's basement was converted to office space and a basement bathroom was constructed. Currently our client is in the process of retrofitting the building to the new earthquake standards as required by the City of San Luis Obispo. As part of the earthquake retrofit our thought it would be a good idea to return the second floor to its original residential use. The rationale for the change seemed relatively obvious at that time: 1. The City's desire for downtown residential uses, 2: Restoration of the building to its historical residential use,and 3. The glut of empty second story office space above downtown ground-floor retail. PH1-6 April 19,2011 Appeal of Water and Sewer Impact Fees 1130 Garden Street San Luis Obispo. California Project#100143 The architectural plans show the removal of the existing basement level and the lowering of the first floor to street level. In doing this,the building will lose approximately 1250 square feet of leasable office space. Our client originally commissioned his architect to draw the plans showing the second floor as residential and/or commercial because he was not sure of the final building configuration. After lengthy discussions with the City Planning and Building Departments, and after making plan adjustments for residential fire exits,the project was submitted for final review showing the second floor as exclusively residential use. Later when our client went to pull the building permit,he learned that the Water and Sewer Impact Fees of over$15,000 dollars were being assessed. He subsequently met with the City's Utility Department,reviewed the applicable City Codes,provided estimated water flows,and made his case as to why the fees do not apply to the unique circumstances of his situation. However,the Utilities Department still maintains the fees are required. Unfortunately,if these fees cannot be waived our client will be forced to abandon the residential use,and resubmit the plans for commercial use only. By this appeal,we are requesting the Water and Sewer Impact Fees be waived for this particular project. We believe there are compelling reasons that apply in this unique case. We believe there are at least three good reasons that the City's Water and Sewer Impact Fees should we waived for this project. 1. Historical Use of the Building. The building's second floor was originally constructed and occupied as a residence. This use should be grandfathered on this basis alone. Restoring the residential use returns this building to its original historical use, which is not a new water or sewer impact. We have a letter from your office acknowledging its historical residential use. 2. The Existing Water Meter is Adequate: We are not requesting a new meter or additional metered water service. The existing water service is adequate to service both the commercial and residential uses. This is allowed per City of San Luis Obispo Municipal Code § 13.04.120 which states in applicable part"Separate houses, buildings, living or business quarters on the same premises or on adjoining premises,under a single control or management,may be served at the option of the utilities department by either of the following methods: ... 2. Through a single service connection to the entire premises." -2 - PH1-7 April 19. 2011 Appeal of Water and Sewer Impact Fees 1130 Garden Street San Luis Obispo, California Project#100143 3. 1250 square feet Net Loss of Office Space means Less Water Impact. City of San Luis Obispo Municipal Code §4.20.140 E 1 states "When any new development replaces an existing development,the development impact fees shall be based on the service requirements of the new development, less the service requirements of the development which it replaces." Our client has calculated water flows using the existing building,and comparing those flows to the proposed building configuration. In the new configuration,there is a net loss of approximately 1,250 s.£ of office space as a result of the removal of the basement office-level. A comprehensive analysis of four standard flow calculation tables(Plumbing Engineer's Design Table,the United States EPA Table,City of Oakland Table,and the California Plumbing.Code)shows the wastewater flows with the residential use to be from 20%to 51%less than the existing building flows. (See attached analysis.) As a result of this reduction of water consumption by the"new development"as compared to the"existing development,"no additional Water and Sewer Impact Fees should be required under the explicit language of City of San Luis Obispo Municipal Code §4.20.140 E.1. We believe for these,and other,reasons,the Water and Sewer Impact Fees should be waived for this project Please contact me directly if you have any questions,or required additional information. Sincerely, Marshall E. Ochylski, Principal Attorney MEO/ec - 3 - PH1-8 G�,1 M`*l T ��11��I��IIIIIIN�U��� QlUhllllllll �►Iilllillll Iihl City Of son luls OBISPO 879 Morro Street•San Luis Obispo, CA 93401 April 11, 2011 The Ochylski Law Group Marshall E. Ochylski P.O. Box 14327 San Luis Obispo, CA 93406 Subject: Appeal of Water and Sewer Impact Fees 1130 Garden Street San Luis Obispo, California Project#100143 Dear Mr. Ochylski: This letter is in response to your correspondence dated February 11, 2011 and the subsequent meeting we had on March 23, 2011 relative to the project at 1130 Garden Street. Your request to waive the water and sewer impact fees for this project cannot be approved based on our discussions and the City policies that are in place. While the existing historic building is noted to have included a residential unit on the second floor that was in use until the 1970's, the current building uses are strictly commercial in nature. The following discussion responds to the three reasons you cited for considering not assessing water and sewer impact fees relative to conversion of the second floor to a residential unit. It should be noted that if the second floor were to remain a commercial use, no additional water or sewer impact fees would be assessed unless alarger meter was needed to serve the proposed commercial uses. 1. Historical Use of the Building. The fact that the second floor was once a residential unit and therefore should be grandfathered on this basis alone is not supported by staff's interpretation of the Municipal Code that was adopted relative to water impact fees in the early 1990'x. The language below is from Municipal Code 4.20.140.E.1: "When any new development replaces an existing development, the development impact fees shall be based on the service requirements of the new development, less the service requirements of the development which it replaces. If the site of the new development was previously occupied by The City of San Luis Obispo is committed to include the disabled in all of its services,programs and activities. Telecommunications Device for the Deaf(805)781-7410 PH1-9 ti 1130 Garden Street Page 2 a development which no longer exists, and for which a demolition permit was issued by the city after October 4, 1991, the development impact fees shall be reduced in the same manner; provided, that city services for previous development can be verified on the basis of building permits, utility billings or similar documentary evidence." The adopted Municipal Code language established a specific date of October 4, 1991 for consideration of reduction in impact fees associated with a proposed project. In the case of the project at 1130 Garden Street, the residential use of the second floor ceased around the 1970's. 2. The Existing Water Meter is Adequate. The City's policies for assessing water and sewer impact fees are different depending on whether the development is residential or commercial. For commercial development, the impact fee is based on the size of the meter necessary to serve the development. The amount of water that can be provided through a meter is limited based on the meter size and was determined to be an equitable way to assess development impacts relative to water use and also corresponding sewer impacts. Since commercial uses can change over time, which can change the amount of water used by specific businesses, it was determined that meter size would be the basis for assessing water and sewer impact fees. For residential units, the impact fees were established based on whether the units were single family, multi-family, or apartments. In cases such as apartments or limited situations for condominium conversions, even though one meter may be approved to serve the development the impact fees are still assessed based on the number of units served In this case, even if the City were to allow one meter to serve the commercial and residential uses the impact fees for the residential unit would still be assessed. 3. 1250 Square Feet.Net Loss of Office Space means Less Water Impact As stated above, the water and sewer impact fees are assessed differently based on whether the development is commercial or residential in nature. As discussed above, the basis for commercial impact fees is the meter size which limits the amount of water that can be delivered to the property and therefore,if commercial uses change in the future, provides a trigger for reassessing the appropriate water and sewer impacts based on the need for a larger meter. The residential impact fees were established based on average water and sewer impacts associated with each type of residential development. The City's policy for commercial and residential impact fees provides a reasonable nexus between the water and sewer impacts of each of these development types and provides consistent application of the policies to new development in the City. 1130 Garden Street Page 3 In summary, your request for waiving the water and sewer impact fees for the development at 1130 Garden Street is not approved. Per Municipal Code Section 1.20.020, your client has the right to appeal this decision within 10 calendar days from the date of this decision. The appeal notice shall be filed with the City Clerk. inc 1 Carrie Mattinglv Utilities Director c: Christine Dietrick, City Attorney Gary Henderson,Water Division Manager Dave Hix,Wastewater Division Manager File pug _» San Luis Obispo Municipal Code Chapter 4.20 WATER SERVICE Sections: 4.20.140 Water and wastewater development impact fees. 4.20.140 Water and wastewater development impact fees. A. Purpose. In order to implement the goals and objectives of the San Luis Obispo general plan, and to provide adequate water supply and treatment facilities, and wastewater collection and treatment facilities, to serve new development in the city of San Luis Obispo and to mitigate the impacts of that new development, certain public facilities and improvements must be, or had to be, constructed. The city council has determined that development impact fees are needed in order to finance these facilities and improvements and to pay for new development's fair share of the construction costs of these facilities and improvements. In establishing the fee described in the following sections, the city council has found the fee to be consistent with the city's general plan land use ordinance and policies and, pursuant to Government Code Section 65913.2, has considered the effects of the fee with respect to the city's housing needs as established in the housing element of the said general plan land use ordinance. B. Water and Wastewater Development Impact Fees. 1. A water development impact fee and a wastewater development impact fee is hereby established as a condition of any new development for which any of the following approvals or permits is required: a. Approvals of land divisions pursuant to Title 16 of this code, including approval of lot line adjustments, certificates of compliance, parcel maps, tract maps and condominium conversions; b. Land use approvals pursuant to Title 17 of this code, including rezonings or the approval of development plans, site plans, minor use permits, variances, but excepting approval of San Luis Obispo general plan/land use ordinance amendments; C. For the issuance of any building permit; d. For connection to city water and wastewater services;and e. All other approvals of real property development,which approvals are subject to the jurisdiction of the city of San Luis Obispo and which approvals are subject to the exercise of the discretion of the city council, planning commission, or community development director. For purposes of this chapter,new development includes any change of use, water demand, or occupancy which increases the established city water or wastewater service requirements of a development. Printed from Folio Views Pagel PH1-12 l San Luis Obispo Municipal Code 2. The said water and wastewater development impact fees are established in order to pay for needed facilities and improvements reasonably related to new development within the city. From time to time,the city council shall,by resolution, set forth the specific amount of the development impact fees,the specific public improvement to be financed and their estimated cost, describe the reasonable relationship between the fees and the various types of new developments,and set forth the time of payment of the fees. Said resolution shall provide for a method of adjusting the amount of the development impact fees, on an annual basis to account for changes in the cost of construction or other considerations affecting the reasonable relationship between the fees and the cost of facilities and improvements on which the fees are based. a. For any development other than residential, the resolution shall provide for payment of fees at the time of building permit issuance. b. For residential development,the resolution shall provide for the payment of fees at the time of building permit issuance, except where the provisions of Section 66007 of the California Government Code require the collection of fees to be delayed until the time of final inspection or issuance of a certificate of occupancy. 3. The city council shall, at least once every five years, review the basis for water and wastewater development impact fees to determine whether said fee is still reasonably related to the impacts of development, and whether the facilities and improvements for which the fees are charged are still needed. C. Limited Use of Fees. The revenues raised by payment of the water and wastewater development impact fees shall be placed in a separate account along with any interest earnings on that account, and shall be used solely to: 1. Pay for the design and construction, including construction management, of water and wastewater facilities described in resolutions adopted pursuant to subsection B of this section, or to reimburse the city for funds advanced from other sources to pay for said design and construction. 2. Reimburse developers who have been required or permitted to install portions of said facilities or improvements pursuant to subsection D of this section. See Section 16.44.091 of this code for appropriate procedure. D. Developer Construction of Facilities. Whenever a developer is required, as a condition of approval of a development permit, to construct a public facility, which facility is determined by the city to have supplemental size, length or capacity over that needed for the impacts of that development,and when such construction is necessary to ensure efficient and timely construction of the facilities network, a reimbursement agreement with the developer or a credit against the fee which would otherwise be charged pursuant to this section on the development project shall be offered. The reimbursement amount shall not include the portion of the improvement needed to provide services or mitigate the need for the facility or the burdens created by the development. E. Fee Adjustments. Printed from Folio Views Page2 PH1-13 San Luis Obispo Municipal Code 1. When any new development replaces an existing development, the development impact fees shall be based on the service requirements of the new development, less the service requirements of the development which it replaces. If the site of the new development was previously occupied by a development which no longer exists, and for which a demolition permit was issued by the city after October 4, 1991, the development impact fees shall be reduced in the same manner; provided, that city services for previous development can be verified on the basis of building permits, utility billings or similar documentary evidence. 2. Each development is independent, and no reductions to development impact fees will be transferable to another development,nor will excess be refunded. 3. Any person whose new development is subject to water or wastewater development impact fees may appeal to the city council for a reduction or adjustment of those fees, or a waiver of those fees, based on the absence of any reasonable relationship between the impacts of that new development and either the amount of the fees or the type of facilities or improvements funded by the fees. The appeal shall be made in writing and filed with the city clerk, together with any required appeal fee, within the ten days following notification that the fees are to be imposed. The appeal shall state in detail the factual basis for the claim of waiver, reduction or adjustment. The city council shall consider the appeal at an appeal hearing to be held within sixty days after the filing of the appeal. The hearing may be continued from time to time. The decision of the city council on the appeal shall be final. If a reduction, adjustment or waiver is granted, any change in the permitted type or intensity of land use within the approved development project shall invalidate the reduction, adjustment,or waiver of the fees. F. Unexpended Development Impact Fee Revenues. 1. Notwithstanding subsection (13)(3) of this section, whenever any development impact fee, or portion of a development impact fee, remains unexpended or uncommitted five or more years after deposit of the fee, the city council shall make findings once each fiscal year with respect to the unexpended amount. The city council shall identify the purpose for which the fee is to be used, and demonstrate a reasonable relationship between the fee and the purpose for which it was charged. The findings required by this section need be made only for monies in the possession of the city,and need not be made with respect - to any letters of credit, bonds or other items given to secure payment of the fee at a future date. 2. The city shall refund to the then-current owner or owners of the new development project or projects, on a prorated basis, the unexpended or uncommitted portion of the development impact fees for which need cannot be demonstrated pursuant to this section. The city may refund the unexpended or uncommitted revenue by direct payment by providing a temporary suspension of development impact fees or by any other means consistent with the intent of this section. The determination of the means by which those fees are to be refunded is a legislative act. Printed from Folio Views Page3 PHl-14 li�"i1�.Ghr1+�t�1 T San Luis Obispo Municipal Code 3. If the city council determines that the administrative costs of refunding unexpended or uncommitted development impact fees pursuant to this section exceed the amount to be refunded, the city council, after a public hearing, notice of which has been published pursuant to Section 6061 of the California Government Code and posted•in three prominent places with the area of the new development project, may determine that the said fees shall be allocated for some other purpose for which development impact fees are collected and which serves the new development project on which the fees were originally imposed.(Ord. 1428 § 1,2002: Ord. 1200 § 1, 1991) Section 1 of Ord. 1200 added § 4.20.040, which the editor has redesignated § 4.20.140 since the chapter already contained a§ 4.20.040. Printed from Folio Views Page4 PH1-15 RESOLUTION NO. (2011 Series) A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO DENYING AN APPEAL OF THE UTILITIES DIRECTOR'S DECISION RELATIVE TO ASSESMENT OF WATER AND SEWER IMPACT FEES FOR A MIXED USE PROJECT AT 1130 GARDEN STREET WHEREAS, the City of San Luis Obispo has adopted water and sewer impact fees for new development; and WHEREAS, the adopted water and sewer impact fees comply with AB 1600 and provide a reasonable nexus for application of the water and sewer impact fees; and WHEREAS, the City's General Plan policy establishes that new development shall pay its fair share of costs associated with providing services needed for the development. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo to adopt a resolution denying the appeal for the assessment of water and sewer impact fees for the mixed use project proposed at 1130 Garden Street. SECTION 1. Findings. Based upon all the evidence, the City Council makes the following findings: 1. The Municipal Code Section 4.20.140.E.1. provides that water and sewer impact fees shall be paid when new development replaces existing development. 2. The water and sewer impact fees provide a reasonable nexus consistent with AB 1600 for assessing new development for provision of water and sewer service necessary to serve the development. 3. Assessing water and sewer impact fees for each residential unit in mixed use projects is consistent with the intent and existing policies for application of water and sewer impact fees. 4. Converting the current commercial building at 1130 Garden Street to a mixed use project consisting of both commercial and residential spaces constitutes new development replacing existing development. SECTION 2. Action. The City Council does hereby deny the appeal of the Utilities Director's action, thereby upholding the assessment of water and sewer impact fees for the mixed use project proposed at 1130 Garden Street. Upon motion of seconded by and on the following vote: AYES: NOES: ABSENT: R PH1-16 Resolution No. (2011 Series) Page 2 The foregoing resolution was adopted this day of 2011. Mayor Jan Marx ATTEST: Elaina Cano City Clerk APPROVED AS TO FORM: Christine Dietrick City Attorney PH1-17 1 Appeal of Water and Sewer Impact Fees for 1130 Garden Street Project #100143 �p Prepared Remarks of Alex Benson, Appellant Hello. My name is Alex Benson. I am a resident of the City, owner of the building at _ 1130 Garden Street and the Appellant. -- First, I would just like to thank the City Utility Department staff for answering my -. questions and pointing me to the applicable codes. They have been kind, courteous and most accommodating. -- 1130 Garden Street is in the Downtown Commercial District and is identified on the City's master list of historic buildings. It's on the same side, and just down the street from Linnea's cafe. Known as the Stover Building, it was the residence and medical office of Doctor Stover, a prominent physician in the early 1900's. The building first became a mixed-use development when a 2-bedroom home was constructed on the 2nd floor in the 1920's. The residential use continued for over 5 - decades. In the mid-1970s, the 2nd floor began to be used as an office;however there is no written record that the residential use was ever abandoned. Around the same time the building's basement was converted to office. The building then became 3 - floors at 4619 SF. Restoration of the Residential Use As part of our seismic retrofit plan, we made a decision to restore the building's — historical residential use. We thought the reasons for the change from office to -- residential were pretty obvious. 1. First, there was a glut of empty space above the downtown ground-floor retail Even today there are still numerous empty 2nd floor offices in the downtown, and I might add, all good candidates for housing conversion. 2. Secondly, as a historic building owner, we felt we could take pride in restoring the building to its residential use. Over half of this 100-year old building's life, had local residents occupying the upper floor. 3. Finally, the City's desire for downtown housing is highly promoted in the newly adopted General Housing Element. With just a cursory read, the many Policies and Programs promoting downtown housing jump off the page. At - least 6 are applicable to this project. One clearly stands out: _._. Page 1 Appeal of Water and Sewer Impact Fees for 1130 Garden Street From City's General Housing Element: Program 6.10 states "Provide —. incentives to encourage additional housing in the Downtown Core (C-D Zone),. particularly in mixed-use developments. Incentives may include flexible density, use, height, or parking provisions, fee reductions, and streamlined development review and permit processing". Obviously the City desires downtown mixed-use residential. Reduction in Building Floor Area In order to provide ADA accessibility and enhance the retail space, our plans show removal of the existing basement, and lowering the 1St floor to sidewalk level. Our 3- - floor building will become a 2-floor building. The total floor area will be reduced from 4619 SF down to 3486 SF, with 1133 SF of office space removed, a 25% _= reduction. This February as the retrofit construction wound down, we went to pull the building permit, and learned that Water and Sewer Impact Fees of about $15,000 had been assessed. We did meet with the City's Utility Department, reviewed the applicable Codes, and made our case as to why the fees should not apply. The Utilities Department maintains the fees are required. Reasons for the Appeal So by this appeal, we are requesting these Impact Fees be waived. Now, obviously, this isn't about the money. Heck, we've already lost of twice the fee amount in uncollected rent by halting the project for the past 4 months. No, this appeal is about common sense and fairness. It's about encouraging new housing in the downtown core. We believe we have compelling reasons to waive the fees. However, we are prepared-. to abandon this mixed-use development, and resubmit the plans for commercial use only, in which case no impact fees would apply. _ There are three good reasons why the Impact Fees should be waived: 1. The historical use was residential. The building's 2nd floor was originally constructed and occupied as a residence for over half over half a century! We believe this use is grandfathered. Even though the residence has been used as an office, no interior modifications occurred to Page 2 Appeal of Water and Sewer Impact Fees for 1130 Garden Street accommodate the office use. Restoring the residential use returns this building to its original historical use, and is not a new water or sewer impact. We also have a letter from the City Attorney acknowledging this historical residential use. 2. The existing water service is adequate. We are not requesting a new water meter, additional metered water service, or a larger-- water supply line. The existing water service is adequate to service both the _ commercial and residential uses. And this is allowed per the City Code. San Luis Obispo Municipal Code 13.04.120 states:"Separate houses, buildings, living or business quarters on the same premises or on adjoining premises, under a single control or management, may be served at the option of the utilities department by either of the following methods: .... 2. Through a single service connection to the entire premises. 3. One-quarter less floor area means no water or sewer impacts. We have calculated water flows using the existing 3-floor building, and compared those flows to the proposed 2-floor mixed-use configuration. The flow rates were calculated using four standard flow tables from: aplumbing engineer's design handbook, the US EPA, City of Oakland and the California Uniform Plumbing Code. The comparison shows the waste water flows for the proposed 2-floor mixed-use building to be from 9 to 51% less than the existing 3-floor building. In other words less water will be used, and less sewer capacity will be needed with the mixed-use configuration as compared to the existing development. -:— City Code states: (Municipal Code Section 4.20.140 E 1) "When any new development replaces an existing development, the development impact fees shall be based on the service requirements of the new development, less the service requirements of the development which it replaces". Because the water/sewer flows are less in the 2-floor mixed-use development with 25% less floor area, there is no additional service requirement, and no water/sewer impact. For these reasons, we believe the Impact Fees should be waived. Staff Report Comments The Utility Department assesses the water and sewer impact fees as a result of the use.:'—' change from commercial to residential per a 1991 City Ordinance. The Department Page 3 Appeal of Water and Sewer Impact Fees for 1130 Garden Street i uses water supply pipe size as an indicator of water usage. Obviously, pipe size alone is not a measure of usage. However, the Department maintains this method is a -- "reasonable nexus" for determining impact. In fact this method works almost all of the time, because almost all new development is adding floor area requiring the pipe size to be increased. When significant square footage is removed from a development, the pipe size methodology in fact, becomes an "unreasonable nexus" as in this case. As you know, an applicant is required to plan, design and build using the Uniform Building Codes. So we ask, in the interest of fairness, shouldn't the City recognize -_ and use the Uniform Plumbing Code as the "reasonable nexus", especially in cases where the replacement development is smaller than the original? City Code states: (San Luis Obispo Municipal Code Section 4.20.140 B. 1. e.) ...... For purposes of this chapter, new development includes any change of use, -_ water demand, or occupancy which increases the established city water or wastewater service requirements of a development." Calculations presented here show a water and wastewater flow reduction with our mixed-use configuration. If the "new" uses less than the "old", there can not be a new water service requirement. And per the Code above, this project can not be considered a "new development" for impact fee assessment purposes. This clearly is an exceptional case. Can any of you remember reviewing a re- development of an existing building which loses 25% of its square footage? Conclusion In summary, our 2-floor mixed-use building will use less water than the existing. There will be a negative water and sewer impact. Charging a fee for converting an existing downtown residence back to its historic residential use contradicts many City.i: policies. In the bigger picture, there is still an abundance vacant downtown office space. This space could remain vacant for a long time. The demand for downtown housing exists __- Empty office is a prime candidate for conversion. In my opinion, a good way to - encourage more downtown housing is to eliminate impact fees for conversion from office to residential. This concludes my presentation. Thank you for hearing this Appeal. I'll be happy to answer any questions. Page 4 Appeal of Water and Sewer Impact Fees for 1130 Garden Street Excerpts from: CITY OF SAN LUIS OBISPO GENERAL HOUSING ELEMENT, JANUARY 2010 Policy 6.2 - New commercial developments in the Downtown Core (C-D Zone) shall include housing. Program 6.9 - Amend the Zoning Regulations and Parking Access and _ Management Plan to allow flexible parking regulations for housing development, especially in the Downtown Core (C-D Zone), including the possibilities of flexible use of city parking facilities by Downtown residents, where appropriate, and reduced or no parking requirements where appropriate guarantees limit occupancies to persons without motor vehicles or who provide proof of reserved, off-site parking. Program 6.10 - Provide incentives to encourage additional housing in the _ Downtown Core (C-D Zone), particularly in mixed-use developments. Incentives may include flexible density, use, height, or parking provisions, fee reductions, and streamlined development review and permit processing. Program 6.25 - Evaluate and consider increasing the residential density allowed in - the Neighborhood Commercial (CN), Office (0) and Downtown Commercial (CD) , zoning districts. Policy 9.3 - Preserve the physical neighborhood qualities in the Downtown Planning Area that contribute to sustainability. Some ways to do this include: A) Maintain the overall scale, density and architectural character of older neighborhoods surrounding the Downtown Core. B) Encourage the maintenance and rehabilitation of historically designated housing stock. Policy 11.1 - Where property is equally suited for commercial or residential uses, give preference to residential use. Changes in land use designation from residential to non-residential should be discouraged. r`I W 00 0CL -� O ti M N II Q LO N N N II a M leCU Q C7 00 Q 00 G ...._._ N 00 0 n z nm rn 0 ~ C W O It 0 .-, -I ... Ln a x o N Q Ln Q N x x X (7 00 N xCL + W Q IA d Ccc co 00 Ln an r1 Q + 00 O a �' II 11 II ` a II N 11 In MLU LL e) p 0 t a p N p '1 II O Q z T O O oo > O O II M - Ln ° m °C _ aci aci _ o E a � ~ E c d c CL 11 c E o Sao O O v -0 o CU u N o a, ar M rr y co m W Ln c Z ~ O N d d cm w `y cu II T H E ev d a E N d n i M LL Q 2 K CIC CC C d .� .-1 ° G t'' Q t C Y a E O N z N = Li- ° N vLLi a Qa Cal a Y ° CD m LA- .c_ a W o m p z I0 W m i LU o f o o E C o E O o u r a O p o LL ar .-I o -0 -1 0 -1 o ar r F- c _ c a o- o o J c 11 o ar C+ 11 o W Y II o 0) O II ar ° p aCL M Ot LL " Q m v 3 J m a 3 O � v 3 u °a 3 p a v'"'i c Q W Cl 00 ° ut y m ° p y m O ao y m O 14 N F CC D: N LL 3 � N Ii � D: N LL �. 5 N CL Z c. O aQ v V E E ac LU C W N a C c u _. w F W C O N O N w O u = Q H CL 0 o ul LnV N C In r4M N u II II Q 07 l0 M .l O u 11 II j II II 'x a a II 11 O O ...._.._ '� Q3 maai d t3QQ CL a. 1616 pQ O U Q N H CD kD °° c00Q1aaC oV .ro .q .-I ° aaII77aOCl ClCl Z `° `° m `Ov :: Nz N c Ln Ln MM o oH � XX � 1"p 'xxQ aB: 0NI ° `` XX + Q cc M Rpt N O V M 4 lG 00 M N + M M '^-1 o W 3 (=7 d 0) y ,n O N y II LL LL 11 It Lo 3 v OU `11 a �+ C) cu Ln Li OJ N •-4 Ln Ln C7 d N d N O 3 a a + LLI +% Q a + o o y to a a u Q u E E Lpn 19 E E o '-4 ^I a E E oo oe v ar a 3 v ar rn v ro v y c M 0 CL CL M O z 0 O a°' N Ln 3 N N.m CL CL cu E a Cal jL 00 m N LA a LL c7 oo � oo � ao0 oou O Z C LL e i 4 rl e-I ` N e•I .-1 N E ° J II p II II a 11 p a II II a 7 " w LLLL Q N a C) CJ CJ V LUM "i, c O w y o � o r y o E v o p _ CD .-I N 1- O IY LL 0 5 LL 0 a' LL O a' LL u -'--- l Appendix K TABLE K-2 Capacity of Septic Tanks* Single-Family Multiple Dwelling Other Uses: fjnimum Dwellings– Units or Maximum Fixture Septic Tank Number Apartments–One Units Served Capacity in of Bedrooms Bedroom Each per Table 7-3 Gallons (Liters) 1 or 15 750 (2,838) 3 20 1.000 (3,785) 4 2 units 25 1,200 (4,542) _ 5 or 3 33 1.500 (5,678) - 4 45 2,000 (7,570) 5 55 2.250 (82516) 6 60 2,500 (9,463) 7 70 2,750 (10,409) 8 80 3,090 (11,355) 9 90 3.250 (12.301) 10 100 3,500 (13,248) 'Note: — Extra bedroom. 150 gallons (568 filers)each. — Extra dwelling units over 10,250,gallons(946 liters) each. Extra fixture units over 100.25 gallons(95 liters) per fixture unit. Septic tank sizes in this table include sludge storage capacity and the connection of domestic food waste disposal units without further volume increase. TABLE K-3 Estimated Waste/Sewage Flow Rates Because of the many variables encountered, it is not possible to set absolute values for waste/sewage flow rates for all situations. The designer should evaluate each situation and, if figures in this table need rrodification. they should be made with the concurrence of the Authority Having Jurisdiction. Type of Occupancy Gallons(filers) Per Day 1. Airports ....................................................................................................................15(56.8)per employee 5(18.9)per passenger 2. Auto washers .......................................................................................Check with equipment manufacturer 3. Bowling alleys (snack bar only).......................................................................................75 (283.9) per lane 4. Carrps: Campground with central comfort station.............................................................35(132.5)per person Campground with flush toilets, no showers............................................................25(94.6)per person Day camps(no meals served) ..............................................................................15(56.8)per person Summer and seasonal .........................................................................................50(189.3)per person _ 5. Churches (Sanctuary).........................................................................................................5 (18.9) per seat withkitchen waste........................................................................................................7 (26.5) per seat _ 6. Dance halls.....................................................................................................................5(18.9)per person 7. Factories Noshowers.......................................................................................................25(94.6)per employee With showers...................................................................................................35(132.5)per employee Cafeteria. add.....................................................................................................5(18.9)per employee 8. Hospitals.......................................................................................................................250 (946.3) perbed Kitchen waste only.....................................................................................................25 (94.6) per bed Laundry waste only...................................................................................................40 (151.4) per bed 9. Hotels(no kitchen waste)...............................................................................60(227.1)per bed(2 person)I 461 Appendix 2007 CALPOgNIAPLUMNG CODE -�– TABLE K^3 (Cmndnuad) Type of Occupancy Galloma (fiters)PeT Day 10. Institutions (Resident) .................................~............7S (283.0)po/persoo --` Nursinghonce..................................................................................................... 25(473.1)per person Rest home.......................................................................................................... 25(473.1)per person 11. Laundries,self-service (minimurr. 10 hours per day).~..........................—..~5O(18I3)per wash cycle Commercial........................................................................................Per manufactunertspecifications 12 Motel ..............~..........................~......^..5OU@S.38per bed space �--~ with kitchen.....................................................................................................68 (22? qper bed space - 13. Offices .......................................:......................~..~.........20(75.7)per mcp.'nyae 14. Parks. mobile honmas....... ...................................................................................250 J946.3) per space picnic parks(toilets only) ..................................... ......................................20(757) per parking space recreational vehicles~ without water hook-up.....................................................................................75(2@3g) per space with water and sewer hook-up......................................................................100(378.6) per space 75. Restaurants–cafeterias...........................................20(75.7)pe/erpdoyea toilet...................................................................................................................... ' Q2G.5\ per customer kitchenwaste...............................................................................................................8(22.T)per meal addfor garbage disposal.................................. ............................................................1 (3.8)per meal add for cocktail lounge ........ ....... . ....................................................................2 (7.6) per cuutoir.mr -- kitchen waste~Disposable oemioe........................ ............................................................2(7.6)per meal 16. Schools–Staff and office.............................................................................................20 (75.?)per person � Elementary students..............................................................................................15(56.@)per person � Intermediate and high............................................................................................20(75.7)per student with gym and showers, add.............................................. .................... ..........5(10.9)per student with cafeteria, add.............................................................................................3[11.4)per student Boarding, total waste.......................................................... ...............................180 (3?8.5)per person 17. Service station, ........................................ .......................1080 (378G) for 1s1bay 500(1892.5) for each additional ba., 18. Stores ...................................... 20(75po/ecnp'oyan public nastsomms. add............. ..................................................... per 10sq.ft. (4.1/rr.') mffloor Spam --~ 19. Swimming pools, public................................................................................................. Q (379)per person 20. Thaaters auditoriums............................................................................................. ............S (1G-9) per seal dhve`n.......................................................................................................~.....1U (]7.9) per space (a) Recommended Design Criteria.Sewage disposal systems sized using the estimated wastelse=ageflow rates should bvcalculated asfollows: (1) VVayte/$ewugmf|ow. upto1,5O8gaUons(day(S.677.5 L/day) Flow x1.5=septic tank size (2) Waste/sewage flow,over 1,S08gallons/day(S.Q77.5Uday) Flow xU.76+ 1.125=septic tank size (3) Secondary system shall be sized for total flow per 24 hours. (b) Also see Section R2ofthis appendix. --- 4-62 --~~ � ���~ ( Filing Fee: $250.00" 1-a1dF&A_ Date Received RECEIVED NIA :4Cll or APR 20 2011 IA REFER TO SECTION 4 san lues OBlspo I SLO CITY CLERK IF APPEAL TO THE CITY COUNCIL SECTION 1. APPELLANT INFORMATION !� J32ag LLEX gzFiySonl 5A4 `Lrts 0401526 CA_ q2+ Name Mailing Address and Zip Cod Bo5� 736 **+4 (aoa -7 86 - 4+4 one Tax . OCHYl sxJ :5AA1 L-v1s QA1,eAl CA Representative's Name Mailing Address and.Zip CYbde Title Phon6 Fax SECTION 2. SUBJECT OFAPPEAL 1. In accordance with the procedures set forth in Title 1 Chapter 1.20 of the San Luis Obispo Municipal Code (copy attached), I hereby appeal the decision of the: GARR16 /t9ATTr1%1GLY (Name of Officer, Committee or Commission decision being appealed) 2. The date the decision being appealed was rendered: Ar;z,_ ll. 2011 Act b 3. The application or project was entitled: P2n rc-T 106 I+:z 4. 1 discussed the matter with the followingstaff mph. nber. Jsri e �4Q�2J� MATrinIGLY j2E-7-,e1ce,, on 6 O (Staff Member's Name and Department) (Dati) 5. Has this matter been the subject of a previous appeal? If so, when was it heard and by whom: /W . SECTION 3. REASON FOR APPEAL Explain specifically what actioNs you are appealing and why you believe the Council should consider your appeal. Include what evidence you have that supports your appeal. You may attach additional pages, if necessary. This form continues on the other side. Page 1 of 3 Reason for Appeal continued �f.EASE i4E� AT-.a ctt�b SECTION 4. APPELLANTS RESPONSIBILITY The San Luis Obispo City Council values public participation in local government and encourages all forms of citizen involvement. However, due to real costs associated with City Council consideration of an appeal, including public notification, all appeals pertaining to a planning application or project are subject to a filing fee of$250,which must accompany the appeal form. - Your right to exercise an appeal comes with certain responsibilities. If you file an appeal, please understand that it must be heard within 45 days from filing this form. You will be notified in writing of the exact date your appeal will be heard before the Council. You or your representative will be expected to attend the public hearing, and to be prepared to make your case. Your testimony is limited to 10 minutes. A continuance may be granted under certain and unusual circumstances. If you feel you need to request a continuance, you must submit your request in writing to the City Clerk. Please be advised that if your request for continuance is received after the appeal is noticed to the public, the Council may not be able to grant the request for continuance. Submitting a request for continuance does not guarantee that it will be granted, that action is at the discretion of the City Council. I hereby agree to appear and/or send a representative to appear on my behalf when said appeal is scheduled for public hearing before the City Council. Dmf Ig I Zoll (Signature of Appellant) (Date) Exceptions to the fee: 1)Appeals of Tree Committee decisions are$100. 2)The above-named appellant has already paid the City$250 to appeal.this same matter to a City official or Council advisory body. This item is hereby calendared for cc: City Attorney✓ CA.P 00 2F cel Pr o f D-4-y WA1 Ve LG � City Manager V62,g.g'L maw«/ Department Head ✓CA-�� �Arl7til�c! Advisory Body Chairperson Advisory Body Liaison City Clerk(original)✓ C�rt9-2N ��97�RD�I/ Page 2 of 3 a/os The Ochylski Law Group Post Office Box 14327 867 Palm Street San Luis Obispo,California 93406 Telephone:(805)544-4546 Facsimile:(805)544-4594 E-mail: lawgroup@slolegal.com Hand Delivery April 19, 2011 Ms. Elaina Cano, City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 Subject: Appeal of Water and Sewer Impact Fees 1130 Garden Street San Luis Obispo,California Project#100143 Dear Ms. Dietrick: This office represents Mr. Alex Benson, who is the owner of a building in the Downtown Commercial District located at 1130 Garden Street. This building is on the city's Master List of Historic Buildings. Kr-own as the Stover Building, it was the home and office of Doctor Stover, a prominent physician in the early 1900's.. The building was originally built as a one story medical office in the early 1910's. A two bedroom home was constructed as the second floor in the 1920's and served a residence for 5 decades thereafter. Sometime around 1970,the second floor began to be used as an office. It's not clear that the residential use was ever abandoned;however the use of the second floor was office.. Around the same time the building's basement was converted to office space and a basement bathroom was constructed. Currently our client is in the process of retrofitting the building to the new earthquake standards as required by the City of San Luis Obispo. As part of the earthquake retrofit our thought it would be a good idea to return the second floor to its original residential use. The rationale for the change seemed relatively obvious at that time: 1. The City's desire for downtown residential uses, 2. Restoration of the building to its historical residential use, and 3. The glut of empty second story office space above downtown ground-floor retail. April 19, 2011 - Appeal of Water and Sewer lmpact Fees 1130 Garden Street San Luis Obispo. California Proiect 9100143 The architectural plans show the removal of the existing basement level and the lowering of the first'floor to street level. In doing this, the building will lose approximately 1250 square feet of leasable office space. Our client originally commissioned his architect to draw the plans showing the second floor as residential and/or commercial because he was not sure of the final building configuration. After lengthy discussions with the City Planning and Building Departments, and after making plan adjustments for residential fire exits, the project was submitted for final review showing the second floor as exclusively residential use. Later when our client went to pull the building permit, he learned that the Water and Sewer Impact Fees of over$15,000 dollars were being assessed. He subsequently met with the City's Utility Department, reviewed the applicable City Codes, provided estimated water flows,and made his case as to why the fees do not apply to the unique circumstances of his situation. However,the Utilities Department still maintains the fees are required. Unfortunately, if these fees cannot be waived our client will be forced to abandon the residential use, and resubmit the plans for commercial use only. By this appeal, we are requesting the Water and Sewer Impact Fees be waived for this particular project. We believe there are compelling reasons that apply in this unique case. We believe there are at least three good reasons that the City's Water and Sewer Impact Fees should we waived for this project. 1. Historical Use of the Building. The building's second floor was originally constructed and occupied as a residence. This use should be grandfathered on this basis alone. Restoring the residential use returns this building to its original historical use, which is not a new water or sewer impact. We have a letter from your office acknowledging its historical residential use. 2. The Existing Water Meter is Adequate. We are not requesting a new meter or additional metered water service. The existing water service is adequate to service both the commercial and residential uses. This is allowed per City of San Luis Obispo Municipal Code § 13.04.120 which states in applicable part"Separate houses, buildings, living or business quarters on the same premises or on adjoining premises, under a single control or management,may be served at the option of the utilities department by either of the following methods: ... 2. Through a single service connection to the entire premises." - 2 - April 19, 201 1 — Appeal of Water and Sewer Impact Fees H 30 Garden Street San Luis Obispo. California Project#100143 3. 1250 square feet Net Loss of Office Space means Less Water Impact. City of San Luis Obispo Municipal Code §4.20.140 E 1 states"When any new development replaces an existing development, the development impact fees shall be based on the service requirements of the new development, less the service requirements of the development which it replaces." Our client has calculated water flows using the existing building, and comparing.those flows to the proposed building configuration. In the new configuration,there is a net loss of approximately 1,250 s.ff of office "space as a result of the removal of the basement office level. A comprehensive analysis of four standard flow calculation tables(Plumbing Engineer's Design Table, the United States EPA Table, City of Oakland Table, and the California Plumbing Code) shows the wastewater flows with the residential use to be from 20%to 51%less than the existing building flows. (See attached analysis.) As a result of this reduction of water consumption by the"new development" as compared to the"existing development,"no additional Water and Sewer Impact Fees should be required under the explicit language of City of San Luis Obispo Municipal Code §4.20.140 E.1. We believe for these, and other, reasons, the Water and Sewer Impact Fees should be waived for this project. Please contact me directly if you have any questions, or required additional information. Sincerely, Marshall E. Ochylski, Principal Attorney MEO/ec - 3 - II Iaci- ® san �si OBISPO 879 Morro Street•San Luis Obispo, CA 93401 April 11, 2011 The Ochylski Law Group Marshall E. Ochylski P.O. Box 14327 San Luis Obispo, CA 93406 Subject: Appeal of Water and Sewer Impact Fees 1130 Garden Street San Luis Obispo, California Project#100143 Dear Mr. Ochylski: This letter is in response to your correspondence dated February 11, 2011 and the subsequent meeting we had on March 23, 2011 relative to the project at 1130 Garden Street. Your request to'waive the water and sewer impact fees for this project cannot be approved based on our discussions and the'City policies that are in place. While the existing historic building is noted to have included a residential unit on the second floor that was in use until the 1970's, the current building uses are strictly commercial in nature. The following discussion responds to the three reasons you cited for considering not assessing water and sewer impact fees relative to conversion of the second floor to a residential unit. It should be noted that if the second floor were to remain a commercial use, no additional water or sewer impact fees would be assessed unless a larger meter was needed to serve the proposed commercial uses. 1. Historical Use of the Building. The fact that the second floor was once a residential unit and therefore should be grandfathered on this basis alone is not supported by staff's interpretation of the Municipal Code that was adopted relative to water impact fees in the early 1990's. The language below is from Municipal Code 4.20.140.E.1: "When any new development replaces an existing development, the development impact fees shall be based on the service requirements of the new development, less the service requirements of the development which it replaces. If the site of the new development was previously occupied by �� The City of San Luis Obispo is committed to include the disabled in all of its services, programs and activities. Telecommunications Device for the Deaf(805)781-7410 1130 Garden Street Page 2 a development which no longer exists, and for which a demolition permit was issued by the city after October 4, 1991, the development impact fees shall be reduced in the same manner, provided, that city services for previous development can be verified on the basis of building permits, utility billings or similar documentary evidence." The adopted Municipal Code language established a specific date of October 4, 1991 for consideration of reduction in impact fees associated with a proposed project. In the case of the project at 1130 Garden Street, the residential use of the second floor ceased around the 1970's. 2. The Existing Water Meter is Adequate. The City's policies for assessing water and sewer impact fees are different depending on whether the development is residential or commercial. For commercial development, the impact fee is based on the size of the meter necessary to serve the development. The amount of water that can be provided through a meter is limited based on the meter size and was determined to be an equitable way to assess development impacts relative to water use and also corresponding sewer impacts. Since commercial uses can change over time, which can change the amount of water used by specific businesses, it was determined that meter size would be the basis for assessing water and sewer impact fees. For residential units, the impact fees were established based on whether the units were single family, multi-family, or apartments. In cases such as apartments or limited situations for condominium conversions, even though one meter may be approved to serve the development the impact,fees are still assessed based on the number of units served. In this case, even if the City were to allow one meter to serve the commercial and residential uses the impact fees for the residential unit would still be assessed. 3. 1250 Square Feet Net Loss of Office Space means Less Water Impact As stated above, the water and sewer impact fees are assessed differently based on whether the development is commercial or residential in nature. As discussed above, the basis for commercial impact fees is the meter size which limits the amount of water that can be delivered to the property and therefore, if commercial uses change in the future, provides a trigger for reassessing the appropriate water and sewer impacts based on the need for a larger meter. The residential impact fees were established based on average water and sewer impacts associated with each type of residential development. The City's policy for commercial and residential impact fees provides a reasonable nexus between the water and sewer impacts of each of these development types and provides consistent application of the policies to new development in the City. 1130 Garden Street � Page 3 In summary, your request for waiving the water and sewer impact fees for the development at 1130 Garden Street is not approved. Per Municipal Code Section 1.20.020, your client has the right to appeal this decision within 10 calendar days from the date of this decision. The appeal notice shall be filed with the City Clerk. inc ly Came Mattingly Utilities Director c: Christine Dietrick, City Attorney Gary Henderson, Water Division Manager Dave Hix, Wastewater Division Manager File E2 3 SAN 25 OBISPO !rCE CASHIER 01000-3-1425-3 PAYOR. 0,CHYLSKI R 5 w!B 0;; a� /G RECISTERe o, G TIME: g:a 3 lRlaAMC U EUST l'-?:PPPEAL 2 22 COUNCIL x 3ES E $250.5 TOTAL. iu : $250.00 X 2 93: $250.00 2 @: 9370 E: $250.00 . CHANGE: $g . y 17 110 uc� ct- �GO fl7r.{�.�,C. e.,rS�/G `LL't� F '�•P8..7 %�1.�5.'�,�.t�`.'..rme�. - LltiC.L s'��rCG^C,,,.e,_..[ C'�.!_.e-f c$, •L�-i/-/Kf4G• �a.7��� t�a-F�z�r�.�„i .,.�,.� 'n-�-� �d+`6G.�' � t;✓ ��w�. '`"(f�'��`-�-`e•-c..,.. /� � 6�•-<C••r•y- ,aG�.-��', v'�C.'e�..�Gf �L£CZfXeI'.�Gt..E.r_r7' "-'"'+ "-�h� �GG>`+w-v< �-cl�,iy� � �,c•�-Ll �'rc.�i� �?C.c-�.�G,�G� `%�.�,a� �- w—n.t:/� /�-Y� •fir v e-zr. �vr .�/.�¢'�,n�.,. .p�-� �r ' ,f 7"� ffr :1,.0+aar� 'I''�'Ci�• C/(CH3cd. fr�i.0 4e -^:{ 'o � S f kL 1 /d3'LaL•/ i' (l� y�i�l;,C, 'q i1,t-cc^,�.��/ �¢:r.�y7'7�,c,� �G�a. �L✓2:s. ��ai.-�►�.�r�r.,� ��i�Iihi�I�IIII�II►II����� �IIIIIIIIIII City Of SAn MIS OBISPO 990 Palm Street, San Luis Obispo, CA 93401-3249 April 27, 2011 The Ochylski Law Group Marshall E. Ochylski, Esq. P.O. Box 14327 San Luis Obispo, CA 93406 RE: APPEAL OF WATER AND.SEWER IMPACT FEES 1130 GARDEN STREET, PROJECT NO. 100143 (Alex Benson Appellant) (30 MINUTES) Dear Mr. Ochylski: In reference to your appeal being heard by the City Council, City, code requires an appeal to be set for the next reasonably available council meeting,but in no event later than forty-five calendar days after the date of the filing of such notice of appeal with the City Clerk. Although you have agreed by phone to permit us to schedule your appeal after the 45 day deadline (i.e. June 4, 2011), we require a signed acknowledgement. Therefore, please sign and return this letter to the City Clerk's Office no later than May 11,2011. An envelope has been enclosed for your convenience. If you have any questions, please give me a call at 781-7102. Mr. Marshall E. Ochylski Representative for Alex Benson Sincerely, Elaina Cano G� City Clerk The City of San Luis Obispo is committed to include the disabled in all of its services, programs and activities. Telecommunications Device for the Deaf(805)781-7410. Page 1 of 1 Chippendale, Sue From: Mattingly, Carrie Sent: Monday, April 25, 2011 5:32 PM To: Chippendale, Sue Cc: Henderson, Gary Subject: RE: Smart Meters Thanks Sue—for the smart meter stuff and the heads up. Gary, It looks like we need to be prepared for May 17 for the Garden Street appeal. Came From: Chippendale, Sue Sent: Monday, April 25, 20115:14 PM To: Mattingly, Carrie Subject: Smart Meters Here's another one for you. Tomorrow, after the agenda for 5/3 comes back from the printer, I will send out all of the smart meter files as Red Files. Also, I have not been able to contact Alex Benson's representative, Marshall Ochylski,who is out of town until Thursday. I am hoping that he will return my calls, but it may not be until the end of the week that we will have some sort of idea about the date of the appeal. I wanted to let you know because if Mr. Ochylski doesn't go for the extension to June 7th, we may be stuck with the May 17th day and time is running out, plus that agenda is very full. Thank you, Sue Chippendale City Clerk's Office City of San Luis Obispo (805) 781-7103 Information from ESET NOD32 Antivirus, version of virus signature database 6070 (20110425) The message was checked by ESET NOD32 Antivirus. http://www.eset.com Information from ESET NOD32 Antivirus, version of virus signature database 6070 (20110425) The message was checked by ESET NOD32 Antivirus. http://www.eset.com 4/26/2011 � r Page 1 of 1 � J Chippendale, Sue From: Chippendale, Sue Sent: Wednesday, April 20, 2011 3:28 PM To: Mattingly, Carrie Subject: Appeal by Alex Benson Importance: High Hello, Carrie:. Alex Benson's attorney, Marshall Ochylski, came into the.Clerk's Office this afternoon with an Appeal to the City Council, along with his receipt for the$250.00 appeal filing fee. Mr. Benson is appealing your decision of April 11, 2011, regarding water and sewer impact fees at 1130 Garden Street. In order to meet the 45 day deadline, the only available dates for hearing the appeal by the Council are May 3 or May 17. Before I send out scanned copies of the appeal and accompanying paperwork to you and everyone involved, I need to know which of the above dates would be best for you in order to schedule the appeal. If you wish to have the appeal heard beyond the 45 day deadline, I will send a letter to Mr. Benson asking for an extension. Please let me know which date would work best for you or if you wish an extension. Thank you, Sue Chippendale City Clerk's Office City of San Luis Obispo (805) 781-7103 Information from ESET NOD32 Antivirus, version of virus signature database 6059 (20110420) The message was checked by.ESET NOD32 Antivirus. http://www.eset.com 4/20/2011 ^ Page 1 of 1 (01 Hi Sue, May 17 would be preferable, but this may be driven by what's on the agenda. Please confer with Elaina. Thanks! Came From: Chippendale, Sue Sent: Wednesday,April 20, 20113:28 PM To: Mattingly, Carrie Subject: Appeal by Alex Benson Importance: High Hello, Came: Alex Benson's attorney, Marshall Ochylski, came into the Clerk's Office this afternoon with an Appeal to the City Council, along with his receipt for the$250.00 appeal filing fee. Mr. Benson is appealing your decision of April 11, 2011, regarding water and sewer impact fees at 1130 Garden Street. In order to meet the 45 day deadline, the only available dates for hearing the appeal by the Council are May 3 or May 17. Before I send out scanned copies of the appeal and accompanying paperwork to you and everyone involved, I need to know which of the above dates would be best for you in order to schedule the appeal. If you wish to have the appeal heard beyond the 45 day deadline, I will send a letter to Mr. Benson asking for an extension. Please let me know which date would work best for you or if you wish an extension. Thank you, Sue Chippendale City Clerk's Office City of San Luis Obispo (805)781-7103 Information from ESET NOD32 Antivirus, version of virus signature database 6059 (20110420) The message was checked by ESET NOD32 Antivirus. htW://www.eset.com Information from ESET NOD32 Antivirus, version of virus signature database 6059 (20110420) The message was checked by ESET NOD32 Antivirus. http://www.eset.com 4/21/2011 Page 1 of 2 Chippendale, Sue From: Chippendale, Sue Sent: Thursday, April 21, 2011 10:34 AM To: Mattingly, Carrie Subject: RE: Appeal by Alex Benson Attachments: pre-lim Benson appeal.pdf I have called Marshall's office and he will be out of town until next Thursday. His secretary is trying to contact him about the possible June 7th date. Once Marshall and I negotiate the date, I will get back to you. Meanwhile, I have attached the appeal and everything he handed in yesterday for your edification. Thanks, Sue From: Mattingly, Carrie Sent: Wednesday, April 20, 20114:27 PM To: Chippendale, Sue Subject: RE: Appeal by Alex Benson Hi Sue, May 17 would be preferable, but this may be driven by what's on the agenda. Please confer with Elaina. Thanks! Carrie From: Chippendale, Sue Sent: Wednesday, April 20, 20113:28 PM To: Mattingly, Carrie Subject: Appeal by Alex Benson Importance: High Hello, Carrie: Alex Benson's attorney, Marshall Ochylski, came into the Clerk's Office this afternoon with an Appeal to the City Council, along with his receipt for the$250.00 appeal fling fee. Mr. Benson is appealing your decision of April 11, 2011, regarding water and sewer impact fees at 1130 Garden Street. In order to meet the 45 day deadline, the only available dates for hearing the appeal by the Council are May 3 or May 17. Before I send out scanned copies of the appeal and accompanying paperwork to you and everyone involved, I need to know which of the above dates would be best for you in order to schedule the appeal. If you wish to have the appeal heard beyond the 45 day deadline, I will send a letter to Mr. Benson asking for an extension. Please let me know which date would work best for you or if you wish an extension. Thank you, Sue Chippendale City Clerk's Office City of San Luis Obispo (805)781-7103 4/21/2011 Page 2 of 2 Information from ESET NOD32 Antivirus, version of virus signature database 6059 (20110420) The message was checked by ESET NOD32 Antivirus. htW://www.eset.com Information from ESET NOD32 Antivirus, version of virus signature database 6059 (20110420) The message was checked by ESET NOD32 Antivirus. hgp://www.eset.com Information from ESET NOD32 Antivirus,version of virus signature database 6062 (20110421) The message was checked by ESET NOD32 Antivirus. http://www.eset.com 4/21/2011 Page 1 of 2 Chippendale, Sue From: Mattingly, Carrie Sent: Thursday, April 21, 2011 10:34 AM To: Chippendale, Sue Subject: RE: Appeal by Alex Benson Perfect—thanks so much Sue. I appreciate your assistance in coordinating this. From: Chippendale, Sue Sent: Thursday, April 21, 2011 10:34 AM To: Mattingly, Carrie Subject RE: Appeal by Alex Benson I have called Marshall's office and he will be out of town until next Thursday. His secretary is trying to contact him about the possible June 7th date. Once Marshall and I negotiate the date, I will get back to you. Meanwhile, I have attached the appeal and everything he handed in yesterday for your edification. Thanks, Sue From: Mattingly, Carrie Sent: Wednesday, April 20, 20114:27 PM To: Chippendale, Sue Subject: RE: Appeal by Alex Benson Hi Sue, May 17 would be preferable, but this may be driven by what's on the agenda. Please confer with Elaina. Thanks! Carrie From: Chippendale, Sue Sent: Wednesday, April 20, 20113:28 PM To: Mattingly, Carrie Subject: Appeal by Alex Benson Importance: High Hello, Carrie: Alex Benson's attorney, Marshall Ochylski, came into the Clerk's Office this afternoon with an Appeal to the City Council, along with his receipt for the$250.00 appeal filing fee. Mr. Benson is appealing your decision of April 11, 2011, regarding water and sewer impact fees at 1130 Garden Street. In order to meet the 45 day deadline, the only available dates for hearing the appeal by the Council are May 3 or May 17. Before I send out scanned copies of the appeal and accompanying paperwork to you and everyone involved, I need to know which of the above dates would be best for you in order to schedule the appeal. If you wish to have the appeal heard beyond the 45 day deadline, I will send a letter to Mr. Benson asking for an extension. Please let me know which date would work best for you or if you wish an extension. Thank you, 4/21/2011 0 Page 2 of 2 Sue Chippendale City Clerk's Office City of San Luis Obispo (805) 781-7103 Information from ESET NOD32 Antivirus,version of virus signature database 6059 (20110420) The message was checked by ESET NOD32 Antivirus. http://www.eset.com Information from ESET NOD32 Antivirus,version of virus signature database 6059 (20110420) The message was checked by ESET NOD32 Antivirus. hqp://www.eset.com Information from ESET NOD32 Antivirus,version of virus signature database 6062 (20110421) The message was checked by ESET NOD32 Antivirus. http://www.eset.com Information from ESET NOD32 Antivirus, version of virus signature database 6062 (20110421) The message was checked by ESET NOD32 Antivirus. http://www.eset.com 4/21/2011 ��I�IIBlilllllllllllll illi► ►IIII `�-` � �IIIIIIIIII� IIII cityo san lois oBispo 990 Palm Street, San Luis Obispo, CA 93401-3249 April 27, 2011 RECEIVE® MAY 17 1011 The Ochylski Law Group Marshall E. Ochylski, Esq. SLO CITY CLERK P.O. Box 14327 San Luis Obispo, CA 93406 RE: APPEAL OF WATER AND SEWER IMPACT FEES 1130 GARDEN STREET, PROJECT NO. 100143 (Alex Benson,Appellant). (30 MINUTES) Dear Mr. Ochylski: In reference to your appeal being heard by the City Council, City code requires an appeal to be set for the next reasonably available council meeting,but in no event later than forty-five calendar days after the date of the filing of such notice of appeal with the City Clerk. Although you have agreed by phone to permit us to schedule your appeal after the 45 day deadline(i.e. June 4, 2011), we require a signed acknowledgement. Therefore,please sign and return this letter to the City Clerk's Office no later than May 11,2011. An envelope has been enclosed for your convenience. If you have any questions,please give me a call at 781-7102. hall E. Ochylski Representative for Alex Benson Sincerely, Elaina Cano �11"' City.Clerk �EThe City of San Luis Obispo is committed to include the disabled in all of its services,programs and activities. ` Telecommunications Device for the Deaf(805)781-7410. rte- x 0 m n m N < r m m iL rn .onn '•'3lbort r is rb%4 1.4 w no FJ- F� - t-n 10 (D �-t cn Cto 17A rt w n oo r� (� b (DOG o n rn r• rt, CO �1 r• i7 9 m oV' TM ♦ eM kt Y~ ✓ 1* 4, t P • MMOA ipv 4 4 From : George Garcia [george@garciaarchdesign .com] Sent: Tuesday, June 07,2011 4:35 P M To : Jan Marx ; Marx, Ja n Subject: Impact fee issue for 1130 Garden Street URM retrofit projec t Hello Jan : I trust this email finds you well . It was good to see you up @ Cal Poly a few week s back, although a quieter venue might have yielded more a productive dialog with th e students . Let me know if there is continue interest in the "Uptown Monterey" concept , as I'd be happy to participate. I am actually writing to express my support for the plight of Alex Benson and hi s retrofit project at 1130 Garden Street, who's appeal goes before the Council tonight . We were hired by Alex back in 2008 to prepare the required seismic retrofit plans fo r his Master List historic building on Garden Street . Since then we have been working with the planning and building department to secure the required permits for the UR M retrofit as well as ADA accessibility and other improvements for this historic property . During the process, Alex expressed interest in retaining the upstairs apartment as a residential unit, and asked my opinion on the matter . I advised that city policy i s written to encourage property owners to include housing in their downtown propertie s whenever possible, and this particular building was particular suited since is wa s originally built as a residence over a doctor's office (Dr . Stover Residence). The difficulty lies with the impact fees being imposed on this property to "convert" th e upstairs to a residential use, when the truth is that it was originally built as a residence , and is in fact one of the few remaining original Master List "mixed use" buildings in th e historic downtown . I therefore urge you to consider Mr . Benson's appeal and allow th e requested fee waiver. Doing so will encourage and promote housing in the downtown , as well as provide an opportunity to restore this historic property to it's true and histori c use . Thanks for your consideration, hardcow:math George Garcia, AI A garcia architecture + design p .805 .783.1880 f.805 .783 .1881 o COUNCI L o CITY MGR o ASST CM o ATTORNEY a CLERR/ORIG o PIE o TRIBUNE o NEW TIMES o SLOCITY NEWS a CDD DI R O FIT DIR O FIRE CHIEF a PW DIR O POLICE CHIE F o PARKS &RECDIR o UTILDIR O HR DIR o COUNCIL o CITY MGR o CLER K RED FILE MEETING AGENDA DATE 6:7/9/ITEM #. council mEmonanOu m June 7, 201 1 TO : Mayor and City Counci l VIA : Katie Lichtig, City Manage r Carrie Mattingly, Utilities Direc r FROM : Gary Henderson, Water Division Manage r SUBJECT : RED FILE – AGENDA ITEM PH-I The staff report for the appeal of impact fees for the project at 1130 Garden Street included th e appeal documentation submitted by the applicant on April 20, 2011 . The documentation did no t include the calculations that were submitted earlier to City staff on February 11, 2011 . Pleas e find attached a copy of the calculations from the previous correspondence . RED FIL E MEETING AGENDA DATE.d//il,ITEM #fk"/ hard copy:email: o COUNCIL o CITY MGR o ASST CM q ATTORNEY o CLERIUORIG o P1B o TRIBUNE o NEW TIMES a SLOCITY NEWS a CDD DI Ro FIT DIB a FIRE CHIEF a PWDIR o POLICE CHIE Fo PARKS &REC DIRaUTIL Dlk a HRDIR o COUNCI L a CITY MGR a CLERK File path 1130 Garden Street Application #10014 3 Wastewater Flow Rate s Existing Building Uses Proposed Building Use s Basement Use Office Size (SF ) 1452 Us e Removed Size (SF ) 0 1st Floor Retail 1618 Retail 178 2 2nd Floor Office 1649 Residence 1703 Totals Office 3001 Retail 1782 Retail 1618 Residence 1704 Wastewater Flow Calculation Using Table 1 Office = 100 SF per employee = 30 X 15 GPD = 450 Retail = 100 SF per employee = 17 X 15 GPD = 25 5 Flow per Table 1 =450 + 255 = 705 GP D Wastewater Flow Calculation Using US EPA Tabl e Office = 100 SF per employee = 30 X 13 GPD =390 Retail =100 SF per employee =17 X 13 GPD = 22 1 Flow per USEPA = 390 + 221 = 611 GP D Wastewater Flow Calculation Using Oakland Table 1 Office = 200 GPO per 1000 SF = 3 .00 X 200 GPD = 60 0 Retail = 100 GPD per 1000 SF = 1.62 X 100 GPD = 16 2 Flow per Oakland Table 1 = 600 + 162 =762 GP D Wastewater Flow Calculation Using CA Plumbing Cod e Office = 100 SF per employee = 30 X 20 GPD = 60 0 Retail =100 SF per employee = 17X20GPO=34 0 Flow per CA Plumbing Code = 600 + 340 = 940 GPD Retail = 100 SF per employee =18 X 15 GPD = 27 0 2 Bedroom Residence =300 GP D Flow per Table 1 = 270 + 300 = 570 GP D Retail = 100 SF per employee = 18 X 13 GPD = 23 4 2 Bedroom apartment = 4 persons X 50 GPD = 20 0 Flow per USEPA = 234 + 200 =434 GP D Retail = 100 GPD per 1000 SF =1 .78 X 100 GPD = 178 2 Bedroom apartment = 200 GP D Flow per Oa kland .Table 1 = 178 + 200 =378 GP D Retail = 100 SF per employee = 18 X 20 GPD = 36 0 2 Bedroom apartment =4 persons X 50 GPD = 200 (US EPA*) Flow per CA Plumbing Code/USEPA = 360 + 200 = 560 GPD *Unable to locate residential wastewater rates in CA Plumbing Code . Used USEPA instead . I