HomeMy WebLinkAbout01-19-2016 Item 14, FredericksonFREDERICKSON LAW - - - -9_ p -g IVE__
755 SANTA ROSA STREET, SUITE 300 RECEIVED
SAN LUIS OBISPO, CA 93401 JAN 11 2016
PHONE 805 - 541-4900 • FAx 8o5- 617 -1827
January 6, 2016
Traci McGinley, City Clerk
City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93401
COUNCIL MEETING: '))c1/1(P
ITEM NO.:`
RE: Appeal, 2390 Loomis Street & 48 Buena Vista Avenue, USE - 1520 -2015
Madam Clerk,
My client Jeff Kraft hereby amends and supplements his appeal of the Planning Commission resolution
number PC- 5630 -15, denying Use Permit application 1520 -2015 ( "the Application "). Mr. Kraft did not
receive the resolution until December 13, 2015.
The only directional items that were to be addressed at the October 24, 2015 planning commission
meeting were the following:
Directional Item #1: Evaluate the proposed lower level of the residence, originally proposed as
unconditioned space, for its ability to be converted to habitable space.
Directional Item #2: Address concerns related to the roof deck area associated with noise and privacy.
Directional Item #3: Clarify the need for the requested height and setback exceptions.
The City Planning Staff ( "the Staff') recommended the Draft Resolution approving height and setback
exceptions for the development of a single - family residence, based on findings and subject to conditions
of approval.
With regard to the issues to be addressed by the Commission, the Staff concluded as follows:
Directional Item #1: Hillside Development Guidelines state that the lowest floor level should not
exceed a vertical distance of six feet from the lowest point where the foundation meets grade and the
lowest floor line of the structure. To meet this requirement a third level was originally proposed. To
determine compliance with the Hillside Development Guidelines a finding will have to be made through
the architectural review application SDU- 1521 -2015 that the removal of the lowest level reduce the
ROGER B. FREDERICKSON
FREDERICKSON LAW
755 SANTA ROSA STREET, SUITE 300
SAN LUIS OBISPO, CA 93401
PHONE 805-541-4900 • FAx 805 - 617 -1827
overall mass and scale of the project and provides for a more consistent design that maintains the natural
character of the hillside. This elevation will occur following the Planning Commission's review and
action on the project.
Directional Item 92: The closest existing residence to the property is located approximately 20 feet in
elevation above the roof deck and over 110 feet away. It is not anticipated that noise generated from
use of the roof deck will negatively impact the adjacent neighbors more than any other usable outdoor
area on any neighboring property, due to its location in relation to neighboring properties. In addition,
the proposed roof deck does not generate any overlook concerns because the immediate adjacent
properties are undeveloped. The property to the south that may accommodate future development has
sufficient developable space that will not be affected by this project because the project complies with
all applicable setback requirements along the adjoining property line shared between these two
properties. The property to the north is designated as permanent open space that is over two acres in
size; the project proposal will have no effect on this property. For these reasons staff support of the roof
deck as proposed.
Directional Item #3: Due to property lines that are not parallel, the sloping nature of the site, and the
fact that the setback adjustment is for the yard adjacent to land designated C /OS -5, (open space), this
minor setback exception will not deprive the adjacent property of reasonable solar access or privacy.
As the staff detailed in its findings and recommendation, subject to a few exceptions, the proposed use
of the property fully complied with the General Plan, zoning regulations, Hillside Development
Guidelines, and applicable City standards.
Issues on Appeal:
1. The Commission's recommendation is not based upon those issues noticed
During the hearing itself, the Planning Commission members spent very little time addressing these
directional items, but instead focused on community concerns and complaints concerning the secondary
dwelling unit ( "SDU ") proposed for the property and safety issues involving Buena Vista street, neither
of which were the subject of the Commission hearing.
The Commission comments reflect this as well, focusing on street parking, traffic safety, steepness and
narrowness of Buena Vista Street, the lack of pedestrian sidewalks, and the use of the SDU, none of
which were issues before the Planning Commissions, nor conditions of the use permit sought. This was
confirmed by the City Attorney during the meeting.
ROGER B. FREDERICKSON
FREDERICKSON LAw
755 SANTA ROSA STREET, SUrrE 300
SAN LUIS OBISPO, CA 93401
PHONE 805-541-4900 • FAx 8o5- 617 -1827
These issues were not addressed in the application, as they are not required to meet the applicable
regulations, guidelines and standards of the City. The fact that they were addressed at all, constitute a
breach of due process and an extra - regulatory role of the Commission.
In addition, as the Planning Commission Agenda Report clearly provides, "the [SDU] and architectural
design of the residence will be reviewed through a separate application SDU- 1521- 2015."
There is no City regulation, guideline or standard that requires a street or highway study be conducted of
Buena Vista Street in order to develop the applicant's property as a single family residence, nor is arty
requirement that a safety study be conducted. If there had been, the City Planning staff would have
made the applicant aware of it and would have addressed it in their review of the applicant's application.
As it was, the applicant had no notice that these issues were to be addressed at the hearing, was not able
to prepare an objection or response, and was not provided with an opportunity to do so either at the
meeting or thereafter, prior to the Commission making its recommendation.
Moreover, there was absolutely no evidence introduced to support the concerns of the public or the
Commission members concerning Buena Vista Street. No traffic studies, no traffic accident reports, no
safety studies, no design studies. Only the hearsay comments of residents were presented, which
consisted of anecdotes and opinions, rather than facts.
City regulation 17.58.030 requires that the Commission provide notice of the time, date; place and
"purpose" of the hearing shall be given at least five days prior to the hearing. No notice was ever
provided that the hearing would address these issues.
2. The Commission's Recommendation is fatally defective in that it contains not written
findings and is unsupported by substantial evidence.
Absent due process and facts, the Commission then denied the permit finding that "the project to be
detrimental to the health, safety and welfare of persons living or working at the site or in the vicinity."
The Commission did not provide the applicant with written findings, based on substantial evidence in
view of the whole record, in violation of City regulation 17.58.040 and the applicable ordinances. (Ord.
1265 §2 Ex. A, 1994; Ord. 1124 §4 Ex. A (part), 1988; Ord. 941 § 1 (part), 1982: prior code §
9204.2(D)). This makes the recommendation and decision defective as a matter of law.
This finding was both procedurally improper and factually insupportable. Procedurally, traffic and
pedestrian safety of Buena Vista Street and the SDU were not before the Commission. These were not
issues upon which the applicant or the staff was directed to address and it was not a condition of the use
permit. As the staff detailed in its findings and recommendation, subject to a few exceptions, the
proposed use of the property fully complied with the General Plan, zoning regulations, Hillside
Development Guidelines, and applicable City standards.
ROGER B. FREDERICKSON
FREDERICKSON LAw
755 SANTA ROSA STREET, SUITE 300
SAN Luis OBISPO, CA 93401
PHONE 805-541-4900 • FAx 8o5- 617 -1827
The Commission's role was limited to the approval or denial of the application based upon these three
directional items, yet it denied the application and permit solely upon factors that were not before it and
were not conditions of the permit being sought, the applicant's plan being in full compliance with the
applicable regulations, guidelines and standards.
The Commission's recommendation being legally defective, in violation of due process, and the
applicant having met all requirements for the issuance of the use permit, the Commission's
recommendation should be reversed and the permit issued.
3. The Commissioners themselves found no legal basis to reject the application
During the hearing, the Commissioners could find no legal or regulatory basis to deny the application,
making the following statements on the record:
Commissioner Draze; "Traffic is extremely low volume. Neighbors are going to get all that concerned
about the safety on that street. Unfortunately, I don't see any other way the health and safety thing, yeah
we could maybe can we hang our hat on it pretty thin folk's safety issue of that street I don't see a really
good way to deny it, I can't see a way to deny this project "
Commissioner Larson, "Emotion of the neighbors honestly is not one of the findings ". "Necessary
finding project will not be detrimental to the health, safety or welfare of persons working or living at the
site or within the vicinity, the key thing it is pure utter judgment how you make the judgment."
Commissioner Malak, "thank everyone. I agree something is going to be built there, traffic 5 houses,
personally how much traffic is going to relate to this house. I am comfortable with the traffic. "
Commissioner Multari, "Some off the concerns that have been voiced are not that especially
compelling."
Commissioner Multari, "View from 101 height exception small enough inconsequential."
Commissioner Larson, "about the height exception those are really minor exceptions."
Commissioner Malak, "I realize a lot of people don't want this but I can't find a reason legally or within
the city guideline or ordinances so I would vote to approve this."
Commissioner Multari, "Some off the concerns that have been voiced are not that especially
compelling."
ROGER B. FREDERICKSON
FREDERICHSON LAW
755 SANTA ROSA STREET, SUITE 300
SAN LUIS OBISPO, CA 93401
PHONE 805 - 541-4900 • FAx 8o5 -617 -1827
Commissioner Dandekar, "very difficult for me to find a reason to why we should say no because from a
use permit and from meeting the requirement for height and exceptions it is doing it.
Commissioner Fowler, " no problem with the exceptions."
Commissioner Dandekar, "This should not have been a lot, it meets the conditions from what I read in
the staff report the height exceptions meet the conditions"
As the meeting minutes demonstrated, the Commissioners could find no legal or regulatory basis to deny
the application, therefore, the application should have beer. granted. That being the case, this appeal
should be granted and the application approved.
Please contact the undersigned should you require further information.
Sincerely,
7toger B. Frederickson
RBF:vh
cc: Client (via electronic mail only)
City Attorney (regular mail)
City Manager (regular mail)
Kyle Bell, Assistant Planner (regular mail)
Chairperson John Larson (regular mail)
ROGER B. FREDERICKSON