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HomeMy WebLinkAbout02-07-2017 Item 6, RacouillatCOUNCIL MEETING: 2 - ITEM NO.: February 3, 2017 Supplement to Appeal to City Council City Council City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 RECEIVED FEB 0 3 2017 SLO CITY CLERK Re: Appeal to the City Council to Overturn the Architectural Review Commission Approval of the 22 Chorro Project (ARCH -2794-2016) on December 5, 2016 Meeting Date: February 7, 2017 Dear Mayor Harmon and Council Members: This is intended to supplement the formal Appeal filed on December 14, 2016, and to address specific issues raised in the Council Agenda Report (CAR) for this Council meeting. THE SCOPE OF REVIEW Consider first the scope of authority of the Architectural Review Commission (ARC) at its hearing on December 5, 2016, which is under appeal here. In the referral to the ARC, the Council gave the following order which is set forth in City Council Resolution No. 10749 approving the project: "Planning 3. The project shall be forwarded to the Architectural Review Commission to review the project design for consistency with the Community Design Guidelines and the Mixed Use project design standards (Zoning Regulations section 17.08.072). Sneci rc attention shall be given to the compalibiliU between the adjacent commercial uses and the residential uses. The Architectural Review Commission shall be responsible or taking action on additional proiect conditions and code requirements as applicable. " (emphasis added) Considering the charge to give specific attention to "compatibility" between adjacent uses, and the specific grant of authority to the ARC "for taking action on additional project conditions and code requirements as applicable," it is misleading, if not disingenuous, for Staff to state now that those Council directions were limited to "building standards." CAR Packet Pg. 64. There is no such limitation stated in the Council's Resolution. Furthermore, among its other responsibilities, the ARC is charged under the Community Design Guidelines (CDG), to: "1. Review proposed development for compliance with CDG, applicable City regulations, the General Plan and, where appropriate, the California Environmental Quality Act (CEQA). " Based on the broad scope of review granted to the ARC, the City Council's Resolution on October 18, 2016, granting the Use Permit was not appealed since issues with "project conditions" and "code requirements" could be presented to the ARC. In fact, a considerable number of them were raised at the ARC hearing on December 5, 2016. The Staff now contends that: (1) none of the project conditions raised was within the ARC's purview; (2) the ARC's scope of review was limited to "building design" and (3) the "project components" were already approved by the City Council and were not within the purview of the ARC. CAR Packet Pg. 64. That contention is clearly false. It unsettling and troubling to note that if the ARC's purview was limited to "building standards" — how do you explain the ARC's first finding set out in Resolution No. ARC -1027-16 that we appeal here? "1. That the project will not be detrimental to the health, safety, and welfare of persons living or working at the site or in the vicinity because the project will be compatible with site constrains and the scale and character of the site and the surrounding neighborhood. " Staff also implies that this Council is not now authorized to review, revise or reconsider its findings related to the Use Permit even if new evidence is presented showing the proposed use will be "detrimental to the health, safety or welfare of persons working or living at the site or within the vicinity." SLOMC 17.58.040. Simply stated, Staff would have us believe that you are not entitled to review, revise or reconsider the Conditions of Approval when granting the Use Permit set forth in SLOMC 17.58.050. We strongly disagree. To suggest that Use Permits are irrevocable and impervious to review or revocation is a misstatement of law and your authority. On the contrary, some would argue that the Council's failure to review the Use Permit after receiving significant new evidence would be an abuse of discretion. PARKING: AN ADVERSE IMPACT THAT CANNOT BE MITIGATED The project calls for 55 parking spaces allocated 50 parking spaces for the residential use, and 5 spaces for the commercial/retail use. Based on the recommendation of Staff, the City Council approved a 40% parking reduction from 55 spaces to 33 spaces. 1. The Pro'ect does not gualify for a 40% parking space reduction. A 20% parking space reduction of 11 spaces was granted to the Applicant when a reduction for Shared Parking and a separate reduction for Bicycle substitution were combined. Applying those two reductions, the 55 parking spaces required for the project were reduced to 44 spaces. Then pursuant to SLOMC 17.16.060.C, a Mixed -Use Parking Reduction was granted. That provision permits up to an additional 20% parking space reduction if the times of maximum parking demand from the commercial use and the residential use do not coincide. That said, the Mixed -Use Parking Reduction rule is simple and direct: if the narking requirements for one use are reduced anequal number of parking spaces must be provided by the other use. For 22 Chorro, the original 55 -parking space requirement was reduced to 44 spaces, allocated 40 spaces for the residential use and 4 spaces for the commercial/retail use. With a Mixed -Use Parking Reduction, the Applicant may be permitted to reduce residential parking from 40 spaces to 36 spaces, since 4 spaces may be borrowed from the commercial/retail use during commercial/retail off -hours. When thepat-king requirements are reduced however, the 22 Chorro ro'ect still reguires 40 parking spaces. Reducing the 40 -space requirement to 33 spaces is not authorized by or consistent with the City's parking space requirements set forth in SLOMC17.16.060. That same conclusion was reached by the Planning Commission. See Finding 2 of Resolution No. PC -1009-16. 2. Common Parking Spaces are virtually eliminated by the excessive elimination of parking spaces and the limitations of the mechanical parkin lifts. compounding adverse spill-over parking impacts. SLOW 17.58.040 The improper elimination of the required parking spaces for the project also reduced the common parking spaces available on the project. As presently approved, 27 parking spaces of the 33 spaces allowed are provided in three secure mechanical lifts reserved exclusively for residents. The remaining 6 spaces are allocated 2 spaces for handicapped parkin and 4 parking spaces as a common parking area. With a commercial business and some 100 residents on-site, there are parking demands that simply cannot be met by the 4 common use parking spaces. Who will compete for these 4 common parking spaces every day? Residents who have vehicles that will not fit in the mechanical lift; Residents who do not have parking privileges in the mechanical lifts; Handicapped drivers when the two handicapped spaces are filled; Emergency Vehicles; Guests; Commercial/retail customers; Staff and employees; Landscapers, maintenance and cleaning personnel; and Commercial delivery services. The mechanical lifts cannot be used for any of these purposes. 3 Where then do folks hark when the 4 common parking spaces are filled? Since there is no on -street parking on any side of the project or across the street from the project, these folks will be forced to find parking in the adjacent neighborhoods and private parking lots already impacted by spill-over parking. Several adjacent businesses already post parking guards and have aggressive towing programs. And you have received petitions and letters from residential neighbors and most commercial businesses adjacent to the project complaining about an existing parking spill-over problem and protesting the threat of even more parking overflows. There is no additional space for parking on the project, and there is no on - street parking beside the project or across the street from the project to accommodate overflow parking. This project creates an unacceptable public safety risk that should not be ignored or allowed. WHAT CAN BE DONE LEGALLY WITH THESE ADVERSE IMPACTS? Some members of the City Council and the Planning Commission complained their hands were tied by the State Density Bonus Law when reviewing 22 Chorro, but the statutory limitations have been exaggerated. That State law, and the Housing Accountability Act specifically authorize you to deny the pro'ect based on a written findin that the p ro'ect it would have a specific adverse impact upon public health and safety for which there is no feasible method to satisfactorily mitigate or avoid. CA Govt Code §65915(d)(1). In the case of 22 Chorro, which has no on -street parking, there are two specific adverse impacts for which there is no feasible method to mitigate or avoid, namely: (1) thearp king deficiency will aggravate existing spill-over parking problems in neighborhoods and adjoining businesses; and (2) the virtual absence of common parking spaces on-site will compound the parking overflow onto the neighborhoods and adjoining businesses. Compare the Evidence: Improper Grant of Mixed -Use Parking Reduction Spaces from 40 to 33 spaces. Staff: There is no analysis or evidence provided by Staff justifying the improper reduction in parking spaces under 17.16.060.C, Mixed -Use Parking Reduction, from 40 spaces to 33 spaces. 2. The Virtual Elimination of Common Parking Spaces Compounds the Adverse Impact of Existing -Spill -Over Parking. Staff: There is no analysis or evidence provided by Staff justifying the adverse impact of spill-over parking by the virtual elimination of common parking spaces in the project. 2 Appellant: The evidence is: (1) The size of the project will accommodate more than 100 residents; (2) The project provides only 4 parking spaces for common parking uses; (3) The complete absence of on -street parking near the project frustrates parking solutions and eliminates the feasibility of a parking district nearby; (4) The adverse spill-over parking conditions that already exist on adjoining properties will be aggravated by the project; and (5) The physical limitations of the mechanical parking lifts will exacerbate existing spill-over parking problems and virtually eliminate common parking spaces. These conditions guarantee that the parking spill-over problems that already afflict the neighborhood will be exacerbated. Consider the written and oral testimony of neighbors and nearby business and property owners who strongly condemn the prospects of more spill-over parking issues. And consider the Planning Commission finding that the requested parking reduction is excessive for the proposed use. Resolution No. PC -1009-16. When considered as a whole, this evidence passes the "substantial evidence test" which is usually the standard of review for administrative mandamus in determining whether the Council abused in discretion in approving 22 Chorro. What can be done now? The State Density Bonus Law provides that even if you grant all requested concessions, you still are entitled to deny the project if there are specific adverse impacts upon public health and safety for which there is no feasible method to mitigate or avoid. CA Govt Code 65915(e)(1). That is clearly the case with 22 Chorro — even with all concessions granted, it poses adverse parking impacts in adjacent neighborhoods and businesses that cannot be mitigated or avoided. At the October 18, 2016, hearing before this Council, Staff has provided you with a draft resolution listing 7 separate reasons to deny the project. A copy of that Resolution is attached for your consideration. With regard to the parking deficiency, Staff proposed the following finding: "The Council finds that the adjacent neighborhood is currently impacted by insufficient on - street parking and that additional "spill-over" on street demand from any project within this part of the community will exacerbate those adverse impacts. The Council f nds that the justification for the 30% (sic) parking reduction based on the mixed-use development wholly inappropriate in that the times of the proposed mixed-use development parking demand from the two uses will coincide in such a way that it will have detrimental impacts on the surrounding areas. In other words, the proposed "mix" of uses and the parking demands from each of those uses is not commensurate with the requested reduction and that, as a 5 consequence, the project will be deficiently parked and vehicles will further impact the surrounding neighborhood. " What is the effect of Praicct Denial? You will likely hear that the Applicant has complied with all legal requirements for the project, but in fact, he has not, as evident by the miscalculation of the Mixed -Use Parking Reduction, the total inadequacy of 4 parking spaces for everyday common parking uses for a project this size, and the physical limitations of the mechanical parking lifts. You also may hear that the developer is entitled to a relaxation of development standards, such as parking requirements. You did that when you approved the mechanical lifts and virtually eliminated common parking spaces. Unfortunately, these concessions combined with the limitations of the mechanical lifts create a specific, adverse impact on the safety of the neighborhood. If you deny the project, the developer can redesign the project to mitigate its adverse impacts, or he can appeal your ruling. If the developer appeals your decision and a Court finds that not even one of the seven findings proposed by Staff is legally sufficient to deny the project, the City may have to pay the developer's reasonable attorney fees. In that case, however, the developer's "reasonable legal fees" are a modest cost to bear compared to the costly steps the nearby neighbors and businesses will need to take over perhaps a period of years to fend off insufficient and spill-over parking from this project. On the other hand, if the appeal is denied and the project is approved, then the decision of the City Council is subject to judicial review to determine whether the Council abused its discretion in approving the project and failing to protect the public interest. If opponents secure a favorable ruling, they too can apply for recovery of their legal fees as a public interest advocate. YOUR CONSTITUENTS, WHOSE HOMES AND BUSINESSES WILL BE ADVERSELY IMPACTED BY THE PROJECT, ASK YOU TO REVOKE THE USE PERMIT AND DENY THE PROJECT TO MAINTAIN THE HEALTH AND SAFETY OF THE NEIGHBORHOOD, THE ADJOINING BUSINESSES, THE RESIDENTS AND BICYCLISTS. What is Your Choice? The question is whether you choose to protect your constituents against parking deficiencies that will have specific adverse personal impacts on them. Alternatively, you can reject this appeal and chose to approve the project, even if the project poses a safety risk to the neighborhood. We recognize the severe pressure to build additional housing in San Luis Obispo, but the adverse impacts in this particular case are too severe to tolerate or ignore. 2 You now have specific reasons, supported by the evidence and testimony submitted to you, to reconsider the Use Permit granted to Applicant, revoke the Use Permit, approve the Appeal, and deny the project. ✓ The 22 Chorro project deserves to be denied. The attached Resolution prepared by Staff to deny the project is your course to revoke the Use Permit and deny the project. Considering the number of neighbors and businesses joining together to oppose this project, you are witnessing a political force that will not fade if its interests are ignored. Your constituents and your neighbors are looking to you to fend off the very real adverse impacts threatened by this project. Thank you for your consideration. Encl: Draft Resolution 7 RESOLUTION NO. (2016 SERIES) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA, DENYING A USE PERMIT FOR A MIXED-USE PROJECT IN THE FOOTHILL BOULEVARD SPECIAL PLANNING AREA, A 40 PERCENT PARKING REDUCTION AND THE USE OF MECHANICAL PARKING LIFTS AND A RECOMMENDATION OF APPROVAL OF A HEIGHT EXCEPTION AS AN AFFORDABLE HOUSING INCENTIVE AS REPRESENTED IN THE CITY COUNCIL AGENDA REPORT AND ATTACHMENTS DATED OCTOBER 18, 2016 (22 CHORRO, USE -2882-2016) WHEREAS, the Planning Commission of the City of San Luis Obispo conducted a public hearing in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo, California, on August 24, 2016 for the purpose of considering a use permit application USE -2882-2016 for a mixed-use project in the Foothill Boulevard special focus area, a 40 percent parking reduction and the use of mechanical parking lifts, and a height exception as an affordable housing incentive to accommodate the development of the proposed project at 22 Chorro Street; and WHEREAS, San Luis Obispo Development Group, LLC, the applicant, filed an appeal of the Planning Commission's action on August 31, 2016; and WHEREAS, notices of said public hearing were made at the time and in the manner required by law; and WHEREAS, the City Council has duly considered all evidence, including the testimony of the applicant, interested parties, and the evaluation and recommendations by staff, presented at said hearing. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San Luis Obispo as follows: Section 1. Findings. Based upon all the evidence, the City Council makes the following findings to deny the project: 1. That the project will be detrimental to and will have specific adverse impacts on the health, safety, or welfare of those working or residing in the vicinity because the project is inconsistent with the City's General Plan, Design Guidelines and Zoning Code, specifically with respect to parking, height, setback and compatible development, and there are no feasible methods of satisfactorily mitigating or avoiding these adverse impacts other than disapproval of the project. 2. That per San Luis Obispo Municipal Code ("SLOMC") section 17.16.060 the project requires 55 spaces on-site parking spaces. The project proposes 33 parking spaces and has requested a 40% parking reduction which is the maximum combined reduction allowed per SLOMC 17.16.060 (C) (mixed-use parking reduction) & (G)2 (bicycle space parking reduction). The Council finds that the adjacent neighborhood is currently impacted by insufficient on -street parking and that additional "spill-over" on street demand from any project within this part of the community will exacerbate those adverse impacts. The Council finds that the justification for the 30% parking reduction based on the mixed use development wholly inappropriate in that the times of the proposed mixed-use parking demand from the two uses will coincide in such a way that it will have detrimental impacts on the surrounding area. In other words, the proposed "mix" of uses and the parking demands from each of those uses is not commensurate with the requested reduction and that, as a consequence, the project will be deficiently parked and vehicles will further impact the surrounding neighborhood. 3. That the proposed setback of zero feet along Chorro Street is inconsistent with Land Use Element Policy 2.3.9.A and the setback requirements of SLOW 17.16.020.C. For this zone, the setback requirement for a street yard setback equals "As provided in zone of adjacent lot" which, in this case, equals 20 feet due to the R-1 zoning immediately adjacent to the proposed project. The Council finds that the setback requirements as set forth in SLOW 17.16.020.0 establish objective standards to protect the health, safety and welfare of the community and that, as proposed, the proposed project is incompatible with the adjacent neighborhood and fails to provide a smooth transition between the two uses in this regard and adversely impacts the immediately adjacent neighbors by disrupting the neighborhood setback pattern. 4. That the proposed height of 43 feet is inconsistent with Conservation and Open Space Element Policy 9.2.1 and Circulation Element Policy 15.1.2 because the project will block views of Cerro San Luis mountain from Foothill Boulevard which is designated as having moderate scenic value. 5. That the proposed project height is inconsistent with the Land Use Element Policy 2.3.9.E Compatible Development: Architecture; the project's height and scale does not provide a smooth transition between the existing and proposed development because the existing development immediately surrounding the project is predominantly one story and the proposed development would create an abrupt height differential thus creating a substantial disconnect between the structures within the neighborhood and overwhelm neighboring properties. 6. That the proposed project height is inconsistent with the Community Design Guidelines sections 5.3.A.1 and 5.3.C: the project's height and scale does not provide a smooth transition between the immediate neighborhood because the existing development immediately surrounding the project is predominantly one story and the proposed development would create an abrupt discrepancy in height and massing and overwhelm the neighboring properties. 7. That the proposed project height is inconsistent with the Land Use Element Policy 2.3.9.F Compatible Development: Privacy and Solar Access; the project will overlook onto adjacent properties and does not respect the privacy of neighboring building and outdoor areas. E