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HomeMy WebLinkAbout04-04-2017 Item 16, HannaCOUNCIL MEETING: R ceI D ITEM NO.: G APIA 0 4 lflir 5L0 CITY CLERK From: Diane Hanna < Sent: Tuesday, April 4, 2017 10:07:13 AM To: Dietrick, Christine; E-mail Council Website Cc: Ansolabehere, Jon; Loren Riehl ( ; Diane Hanna Subject: 71 Palomar -- Response Letter Dear Honorable Mayor, Members of the City Council and Ms. Dietrick, Attached please find our letter regarding the appeal of the ARC's approval of the LR Development Group project located at 71 Palomar Avenue, the subject of Agenda Item 16 at tonight's City Council hearing. This letter is provided in response to a number of new legal arguments raised in a letter by the appellants' counsel, which we did not receive until Friday evening. While we worked to provide this response as promptly as possible, we apologize for any inconvenience to you or City staff for submitting this letter on the same date as the hearing. Thank you for your continued time and attention to this important project. Warm Regards, Diane Hanna Counsel for LR Development Group This email and any attachments may contain material that is confidential, privileged and/or attorney work product for the sole use ofthe intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly prohibited. If you are not the intended recipient, please contact the sender and delete all copies. Legal Advice Disclaimer: You should recognize that responses provided by this e-mail means are akin to ordinary telephone or face-to-face conversations and do not reflect the level of factual or legal inquiry or analysis which would be applied in the case of a formal legal opinion. A formal opinion could reach a different result. SSL ■o■ L AW FIRM L L. P VIA ELECTRONICAND U.S. MAIL City of San Luis Obispo Attn: Mayor and City Council 990 Palm Street San Luis Obispo, CA 93401 Ms. J. Christine Dietrick City Attorney City of San Luis Obispo 990 Palm Street, Room 10 San Luis Obispo, CA 93401 April 4, 2017 Re: City Council Agenda Item 16 — 71 Palomar Avenue SCAN FRANCISCO, CA Dear Mayor, Honorable Members of the City Council and Ms. Dietrick, DI ANIS Imo. I [ANNA This letter is provided on behalf of LR Development Group (LRDG) with regard to its development proposal at 71 Palomar Avenue in San Luis Obispo (Property). As you are aware, LRDG has received all approvals required to redevelop the Property with a new 33 -unit, multi- family residential project (Project), and such approvals have been appealed to the City Council. As noted in the staff report to the City Council, the Project has been the subject of a thoughtful and rigorous development review process by the City. The Project has been reviewed and recommended for approval by the City's Cultural Heritage Committee (CHC) and approved by the Architectural Review Commission (ARC). LRDG appeared before the CHC on March 28, 2016 and June 27, 2016. In the former hearing, the CHC required a comprehensive redesign of the Project. LRDG made all requested changes and the Project was recommended for approval by the CHC on June 27, 2016. On January 30, 2017, the ARC approved the Project and its Initial Study/Mitigated Negative Declaration (MND) which concluded that the Project, as mitigated, would not have a significant impact on the environment. Furthermore, and as acknowledged by the CHC and ARC, the Project will advance a number of high priority City goals and policies, including the provision of affordable housing, development of an infill site designated in the Housing Element as underutilized and blighted and protecting and preserving a historic resource that has fallen into disrepair over time. On February 8, 2017, two neighbors to the Project appealed the ARC's approval of the Project and its MND to the City Council. The focus of the appeal relates to the restoration of the S y L. Mayor, City Council, and Ms. Dietrick NNE 71 Palomar Avenue .x t Page 2 of 13 Sandford House, removal of trees and traffic and circulation impacts of the Project. Appellants assert that the City Council should deny the Project based on appellants' alleged violations of the California Environmental Quality Act (CEQA). We believe it is important to note, as a fundamental matter, this is not how CEQA works. The purpose of CEQA is to inform approving agencies and the public of a proposed project's environmental impacts. CEQA does not direct an agency to approve or deny a project (nor does it give them authority to do so) based on its' impacts, or lack thereof. The fundamental purpose of CEQA is for an agency to be able to make its decisions with the project's environmental consequences in mind — which the City has done here. As evidence of their claim, appellants offer their unsubstantiated opinion and simple disagreement with the expert analysis and conclusions documented in the MND and other supporting Project documents. The staff report does an excellent job addressing and resolving each of appellant's assertions as set forth in the February 8, 2017 appeal letter. On the late afternoon of Friday, March 31, 2017, appellants' counsel submitted a letter raising new legal objections that were not raised before the ARC, or in prior correspondence with the City. The law looks very disfavorably on these sorts of eleventh hour submissions. Indeed, because this appellant's counsel letter raises issues that have not been previously exhausted or raised before the ARC or as set forth in appellant's appeal letter, this letter may be disregarded in its entirety. See e.g., San Luis Municipal Code § 17.66.040; Citizens of Goleta Valley v. Bd. of Supervisors (1990) 52 Cal.3d 553, 568 ("We cannot, of course, overemphasize our disapproval of the tactic of withholding objections... solely for the purpose of obstruction and delay."); Mount Shasta Biological Ecology Center v. County of Siskiyou (2012) 210 Cal. App. 4th 184, 201-202 ("the [comment] letter was not submitted before approval of the Project. It was submitted just before the hearing on plaintiffs' appeal of such approval. And it was untimely in that regard."). Nonetheless, in an abundance of caution, and to assist the Council in its consideration of this Project, we provide this letter to address each of these new claims. As is shown below, the City has completed a thorough and adequate CEQA review of the Project, and the appellants have failed to identify any legal or factual basis that would support its position that the Project requires preparation of an Environmental Impact Report (EIR). As a threshold matter, CEQA does not allow a project opponent to impose its policy choices or preferred alternatives over that of the lead governmental agency, here the City. Rather, CEQA requires deference to City's policy decisions and environmental analysis so long as that analysis is supported by substantial evidence in light of the whole of the administrative record. "Substantial evidence" is "enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made that the project may have a significant effect on the environment is to be determined by examining the whole record before the lead agency. Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment does not constitute S S L Mayor, City Council, and Ms. Dietrick MEN 71 Palomar Avenue Page 3 of 13 1,4 'M I i, substantial evidence." CEQA Guidelines §15384. "Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts." Id. When raising a claim of defect under CEQA, the appellants have an obligation to identify the "whole record" (Id.) on the issues they challenge and show with reference to their own legitimate evidence why the CEQA document is flawed or lacking. The appellants fail to meet this burden. They provide an arbitrary narrative of the Project that is crafted to support their claims, but ignores the record evidence that runs counter to them. They fail to provide any qualified evidence, and instead rely upon argument, speculation and/or unsubstantiated opinion. They also rely upon incomplete citations to CEQA and its implementing Guidelines (14 Cal. Code Regulations 15000 et seq.) in an attempt to create new legal standards to their benefit. These defects color each of appellants' claims as detailed below. 1. The Sandford House a. Repositioning and Restoration The Project's historic consultant, Applied Earthworks Inc., reviewed the Project's modifications to the Sandford House for consistency with the Secretary of Interior Standards (SOI) for the Treatment of Historic Properties and under the City of San Luis Obispo Historic Preservation Program Guidelines, and found the project to be in conformance with incorporation of the recommended mitigation. MND page 16. The Project, including the Applied Earthworks evaluation report, was reviewed by the CHC on March 28, 2016 and on June 27, 2016 for compliance with the City Historic Preservation Ordinance (City Ordinance; Municipal Code Chapter 14.01), the Historic Preservation Program Guidelines, and the SOI's Standards for the Treatment of Historic Properties. The CHC determined that the proposed repositioning, rehabilitation and adaptive reuse of the Sandford House, and the construction of the new residential units with incorporation of the recommended mitigation measures, to be in conformance with SOI's Standards for the Treatment of Historic Properties and City standards. The ARC also carefully reviewed the historic components of the Project and concurred with the findings of Applied Earthworks and the CHC in its Project approvals. Appellants attempts to counter this expert analysis and consistent findings through an incomplete citation to the CEQA Guideline governing projects with historic components — Guidelines § 15064.5(b). Appellants' counsel points only to Guideline § 15064(b)(1) which generally defines an adverse historic impact as one which result in the "physical demolition, destruction, relocation, or alteration of the resource or its immediate surroundings such that the significance of an historical resource would be materially impaired." Appellants assert that this section creates a per se rule that an EIR must be prepared in all instances where a historic resource, or portion thereof (even if non-contributory) is demolished, relocated or altered. That is not the law. In fact, appellant's counsel inexcusably ignores the following subsection of Guideline § 15064.5(b)(3) which establishes a rule for when modifications can be made to historic structures and result in no significant impact: S S L Mayor, City Council, and Ms, Dietrick SEE 71 Palomar Avenue Page 4 of 13 I.tR\1 T r r Generally, a project that follows the Secretary of the Interior's Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings or the Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings (1995), Weeks and Grimmer, shall be considered as mitigated to a level of less than a significant impact on the historical resource. [emphasis added] This Guideline section is directly on point here, and was ignored despite appellants' counsel citation to preceding language in the same section, and its inclusion on page 15 of the MND: The proposed project and the Applied Earthworks Evaluation was reviewed by the City of San Luis Obispo Cultural Heritage Committee (CHC) on March 28, 2016 and on June 27, 2016 for compliance with the City Historic Preservation Ordinance (City Ordinance; Municipal Code Chapter 14.01), the Historic Preservation Program Guidelines, and the Secretary of the Interior's Standards for the Treatment of Historic Properties. The CHC determined that the proposed repositioning, rehabilitation and adaptive reuse, and the construction of the new residential units (described below) with incorporation of the recommended actions included herein as mitigation measures, to be in conformance with SOI Standards for the Treatment of Historic Properties and City standards. Therefore, impacts are considered to be mitigated to a less than a significant level under CEQA Guidelines. (CEQA Guidelines Section 15064.5(b)(3)). [emphasis added] Applied Earthworks, the CHC and the ARC all concurred the Project would not result in an adverse impacts to the Sandford House because all proposed work is consistent with the SOI's Standards for the Treatment of Historic Properties. Appellant's attempt to craft a per se rule of adverse impact (by ignoring later sections of the same Guideline) must be rejected — it is one that does not exist under the plain letter of the law or one that can be supported by the facts of this Project. Appellants' counsel citation to League for Protection of Oakland Architectural and Historic Resources v. City of Oakland (1997) 52 Cal. AppAth 896 is also off point. That case dealt with the adequacy of a mitigated negative declaration for a project that involved the complete and total demolition of a large historic resource. The historic mitigation was limited to documentation of the structure in a report and survey, display of a commemorative plaque, and unspecified direction to incorporate design features into the new building to reflect architectural elements of the demolished building. Based on the record in that case, the court concluded that an EIR should be prepared given the total loss of the structure, the lack of adequate analysis and the vague and tentative mitigation measures. Here, total demolition will not occur — only the non -historic components will be removed, adequate mitigation measures have been formulated and, possibly most importantly, all repositioning and restoration work has been determined to be consistent with the SOI Standards for the Treatment of Historic Resources, which expressly qualifies as mitigated to a level of less than significant under Guideline § 15064.5(b)(3). In addition, appellants' counsel mistakenly cites to San Luis Obispo Municipal Code (SLOMC) § 14.0 1.110 to conclude that the Sandford House will be "relocated", and as a result, w 1 1. Mayor, City Council, and Ms. Dietrick Now 71 Palomar Avenue r � : Page 5 of 13 further environmental analysis is required. However, that citation and reference is not accurate — the Sandford House will be repositioned on the same site, not relocated to a different site. The Historic Preservation Ordinance defines "Relocation" as "removal of a resource from its original site and its reestablishment in essentially the same form, appearance and architectural detailing at another location." San Luis Obispo Municipal Code (SLOMC) § 14.01.020(45) (emphasis added). The Historic Preservation Ordinance provision relied on by appellants' counsel also emphasizes that relocation involves the movement of a resource from its current site to a new receiving site.' Again, the appellant's counsel has chosen to disregard the "whole record" to back into a desired conclusion. Please note that the Applied Earthworks letter dated May 2, 2016 specifically addressed this topic stating on page 2 of the letter: "Since the current project does not propose to remove the Sandford House from the site, it should be understood as a change in siting on the original property rather than a relocation. Thus, Section 14.0 1.110 of the Ordinance does not apply." The Sandford House will not be moved to another location, it will be repositioned on the same Property, approximately 33 feet to the east, in order to accommodate the new residential units. This reflects a thoughtful balancing of the City's goals and needs — it will provide the City with its needed housing while protecting and preserving a historic resource. As documented in the MND (at 16): The Applied Earthworks evaluation found that the proposed repositioning of the house on the site will preserve the prominence of the structure on the site and its historic orientation on a slope facing east overlooking the City of San Luis Obispo. The Sandford House will retain the ability to convey its historical significance and repositioning of the Sandford House will not materially alter the physical characteristics or immediate surroundings such that its historic significance would be materially impaired. This conclusion is likewise echoed by one of the original members of the CHC that voted to place the Sandford House on the City's Master List of Historic Resources, who acknowledged that the repositioning of the House will enhance the House's presence on the street — making this historic resource more accessible to the public than under current conditions. (See section l .c.) b. Period of Historic Significance is 1895-1930 As documented throughout the Applied Earthworks historic evaluation report, the CHC materials and the ARC materials, the Sandford's House period of historical significance is circa 1895-1930. This expressly excludes the rear additions, garage and secondary residence which See e.g., SLOMC § 14.01.110(13)(3)(" The original site and the proposed receiving site are controlled through ownership, long-term lease or similar assurance by the person(s) proposing relocation, to the director's approval;"); § 14.01.110(D) ("Prior to issuance of a construction permit for relocation, the resource and its site shall be historically documented as specified herein, to the satisfaction of the CHC and the director. An acknowledgment of the resource, such as a permanent, weatherproof historic plaque, shall be incorporated on the resource's original site as provided by the applicant or property owner, subject to the approval of the CHC.") S S L Mayor, City Council, and Ms Dietrick Sam 71 Palomar Avenue � 111. Page 6 of 13 1k"i were constructed in the 1950-1970s. As the Applied Earthworks historic evaluation report explains at page 31: The period of significance for the Sandford House is recommended as circa 1895-1930. While documentation of the specific date of construction was never located, research indicates that circa 1895 appears to be the approximate date of construction. This date is consistent with the general time period associated with the Colonial Revival style and is associated with the ownership of Reginald Wills -Sandford, likely the first occupant of the residence, and for whom the building is named. The period of significance ends in 1930 to include the addition of the solarium that significantly contributes to the architectural style of the property. The period of significance excludes the two additions to the main building and the garage and secondary residence located on the parcel. These buildings and additions do not convey the significance of the property. [emphasis added] This is reiterated on page 43 of the report: The period of significance for the Sandford House is circa 1895-1930. Added prior to 1930, the solarium addition to the side (north) elevation of the subject property will be rehabilitated and integrated into the Sandford House's proposed new use for residents. The two accessory buildings, a secondary residential building and garage with attached carport, were constructed after the period of significance, as were the two additions constructed to the rear of the Sandford House. Based on historical research, the accessory buildings and additions do not appear to have acquired historical significance in their own right and will be removed as part of the proposed project. [emphasis added] Appellants' counsel points to the California Cultural Resource Form from May 2015, which is attached as an exhibit to the Applied Earthwork evaluation report. The form was prepared by Applied Earthworks as one of the initial steps in the preparation of its comprehensive report. The appellants' counsel uncovered a typographical error in the Cultural Resource Form. They rely on that typographical error from that appendix as justification to ignore the record and conclude that the "demolition and removal of the additions to the Sandford house ... fall within the period of significance and warrant full environmental review in the form of an EIR." They do so despite the fact that all subsequent documents corrected the typographical error regarding period of significance and the rear additions to the Sandford House. Page 16 of the MND provides as follows: A historic and archaeological evaluation identified the period of significance for the structure as circa 1895-1930 (Applied Earthworks, Inc., October 2015, Attachment 4). Additions and accessory structures were added to the site in the 1950s and 1970s and are not considered historic resources (Applied Earthworks, Inc., October 2015, Attachment 4). ti , I Mayor, City Council, and Ms. Dictrick won 71 Palomar Avenue , Page 7 of 13 rru•.i � r s• Likewise, the CHC (Finding 3 of Resolution dated March 28, 2016) and the ARC (Finding 7 of Resolution dated January 30, 2017) each provide: "That the proposed removal of the non -historic additions is consistent with the Secretary of the Interior Satandards for Rehabilitation because they have not acquired historic significance in their own right" Please refer to the supplemental letter dated April 3, 2017 provided by Applied Earthworks which confirms the period of historical significance as ending in 1930 and corrects the May 2015 California Natural Resource Agency Cultural Resource Form it originally prepared. The period of significance extends only to 1930 and the later constructed rear additions, secondary residential structure, garage and carport have no historical significance — appellants' citation to a typographical error from an older and now corrected form does not undermine this well supported conclusion (as reflected in the MND and as confirmed by the CHC and ARC), and certainly does not provide a legitimate basis for requiring an EIR. Please also note that images of the rear additions have been included in Applied Earthworks supplemental letter, and we do not believe that any reasonable person could conclude that the additions are historic or consistent with the architecture of the main residence. Appellants also argue (in their original appeal) that an EIR is required because "if the property is moved, it will be disqualified from eligibility on the National Register of Historic Places, even if it is moved from one location on its original site to another location on the same property." We believe that the appellant's were referring to moving the "Sandford House" and not the "property." Even so, this statement is without merit. The house is already ineligible for the national register per the City's Historic Preservation Guidelines (at page 71). This is confirmed on page 38 of Applied Earthwork's report: In 1983, the city-wide Historic Resources Survey identified the Sandford House as important for its age and architecture, and the property was placed on the City's Master List, with a National Register rating indicating that the property is "not eligible for the National Register but locally significant. c. The Historic Component is the House — Not the Trees or the Site Appellants claim the removal of the trees and the repositioning of the Sandford House will create an adverse historic impact. This squarely contradicts the expert analysis of Applied Earthwork, and the conclusions and findings of the CHC and ARC. As explained in the MND: "The original setting of the site has experienced substantial change since construction of the house in 1895 with the development of Palomar Avenue, Luneta Drive and the adjacent homes and apartments." MND at 16. As further explained by Applied Earthworks in its letter dated May 2, 2016 (at page 2): the original historical landscape and setting have been materially altered by prior development of the surrounding area, including subdivision of the original 15 acre parcel and construction of new roads, infrastructure, and surrounding residential S S 1 Mayor, City Council, and Ms. Dietrick mom 71 Palomar Avenue i `\ Page8of13 r uz -\1 I [ r neighborhoods that ended the property's relative isolation. As a result, the integrity of the historic landscape and setting have been substantially diminished by prior development. Given the broad change in its environment and context, the historic character of the subject property is expressed today in the prominence of the Sandford House within the parcel. While the proposed project calls for the repositioning and slight reduction in elevation of the residence, it will remain on site and in a prominent position on the parcel, serving as the architectural anchor of the site. Dr. Daniel E. Krieger, a member of the CHC in 1983 when the Sandford House was placed on the City's Master List of Historic Resources also concurs with the assessment. As he explained in a letter dated January 27, 2017, in listing the Sandford House, "[w]e were clearly focused on saving the structure irrespective of the site itself." Dr. Kreiger also acknowledged the dangers of letting historic structures sit without incentive for adaptive reuse. In the 34 years since the house's inclusion on the Master List, "little has been done to protect this late Victoria treasure. I am writing as a friend of that resource. The [LRDG]'s proposal to relocate and rehabilitate the Sandford House appears to me the last, best chance for its preservation. While I would prefer to see the structure remain where it stands, the projected appearance in its new location would enhance the house's `gift to the street."' Dr. Krieger's letter further validates the opinions of all of the experts charged with evaluating the historic impacts of the Project in concluding that the trees and surrounding site are not historic components of the Sandford House, and the removal of trees and repositioning of the house will not materially impair the significance of this resource or result in a significant impact. The appellant points to one comment letter from a neighbor who "believes" some of the trees proposed for removal were planted around 1895, and a comment from a Tree Committee member who opines that planting of certain trees is "very traditional and is seen with old historic homes." Neither of these comments are supported by any additional analysis — and thus cannot qualify as substantial evidence as they are based on "argument, speculation, unsubstantiated narrative." Guideline § 15384. Even if both of these comments were factually accurate (which nothing indicates they are), neither would change the ultimate conclusion that the trees are not themselves historic, or a contributing component to the historic designation of the Sandford House. The classification of historic resources involves a detailed and educated process in accordance with local, state and federal guidelines; that process was followed by the City and concluded with a finding that the trees and surrounding site are not contributing features to the historic Sandford House. In light of this evidence in support of the MND's conclusions, appellants' assertion that an EIR is required to analyze historic resources is unfounded, inconsistent with CEQA Guideline 15064.5(b)(3) and must be rejected. 2. Tree Removal and Replacement Appellants also take aim at the ARC'S approval authorizing the removal of 55 trees on site, claiming that this approval was issued without a proper evaluation under the City's Tree Regulations (SLOMC Ch. 12.24). Appellants' assertions evince a misunderstanding of the local ordinance, are supported only by unsubstantiated opinion and their disagreement with the expert S I_ Mayor, City Council, and Ms. Dietrick ONE 71 Palomar Avenue Page 9 of 13 i.tRM ( 1 r analysis, and fail to account for the applicability and significance of California Government Code Section 65589.50). The City's Tree Regulations include a policy statement in Section 12.24.090(A) that provides a discretionary standard whereby the City should "discourage removing desirable trees and shall consider approving removal of desirable trees only as a last resort." This is an expression of City policy and includes key terms of discretion such as "discourage" and "consider." It is not a mandate, and per the process outlined below, the ARC and City Council may exercise their discretion as to whether or not a tree is "desirable," and/or whether other competing City objectives (such as historic preservation) support the removal of a particular tree. Appellants incorrectly interpret this policy language as creating "a mandatory duty to preserve trees whenever possible and feasible" — regardless of the health/desirability of the tree or competing objectives. This is not the standard. A complete review of the Tree Regulations illustrates that Section 12.24.090(A) is the general policy and Section 12.24.090(E) implements that policy with specific substantive and procedural requirements for projects involving "Tree Removal with a Development Permit." Section 12.24.090(E) provides that following steps and protocols: 2. Review of the application to remove a tree with a development permit shall proceed as follows: a. The city arborist shall inspect the property and recommend approving or denying the application;... c. If architectural review is required for the development, the architectural review commission shall approve or deny the application: (1) If the city arborist has recommended denying the application and the architectural review commission has approved the application, the tree committee shall review the architectural review commission's decision; (2) If the tree committee concurs with the city arborist's recommendation to deny the application when the architectural review commission has approved the application, the city council shall review the matter for final action. The City has met and indeed exceeded the requirements of the Tree Regulations and CEQA when evaluating the proposed tree removal. The trees have been analyzed by three separate licensed arborist: A&T Arborists (A&T), the City arborist, and the City's independent arborist, Rincon Consultants (Rincon). These experts concurred that at least 41 of the trees proposed to be removed are dead, or are in very poor to fair health. The City arborist and ARC each concluded that the Project's removal of the trees is consistent with the City's Tree Regulations and is fully mitigated through the MND and conditions of approval, including the tree planting requirements. S S L Mayor, City Council, and Ms. Dietrick ■no 71 Palomar Avenue Page 14 of 13 i lit�I In fact, the City went above and beyond the requirements of the Tree Regulations. Prior to the ARC's consideration of the Project, the City recirculated the MND to provide members of the public an opportunity to comment on the Rincon report, and on December 12, 2016, the City's Tree Committee held a public hearing to receive and comment on the MND and the proposed tree removal and mitigation. Neither the recirculation of the MND or the Tree Committee hearing were required by the CEQA or the Tree Regulations. Members of the public and Tree Committee provided comments, which largely focused on the technical accuracy of the Rincon report. In response to these comments, Rincon updated its report to correct certain technical references to tree species (and sub -species) and height, but its conclusions and recommendations remained unchanged. The correction of the Rincon report does not, as the appellants allege, demonstrate a lack or reliability or an flaw in the CEQA process — indeed, this is exactly .how the CEQA process is designed to work. Through the public review process, the City now has a better report with better information. Indeed, appellants do not identify or allege a single factual error with the revised Rincon report, all claims challenging the reliability of the Rincon report are based upon the original draft. In approving the 2:1 tree replacement mitigation, the ARC properly utilized the mitigation measures set forth in Section § 12.24.090(1) of the Tree Regulations, which states "In approving an application for tree removal, ... the architectural review commission or the city council may require planting of replacement trees." This replanting plan has been incorporated into the Project plan set that was approved by the ARC and requires that at least 34 trees be replanted on site. The remainder will be planted throughout the neighborhood in existing tree wells, City parks or other City properties and/or through donation to the Urban Tree Forest Bank. Appellants claim that the 2:1 tree replanting requirement is not proper mitigation because it does not specify how many of those new trees will be planted on site. This is flatly contradicted by the record evidence. The City Council staff report explains that the Project will replant at least 34 trees and the remainder will be planted elsewhere throughout the City (with an emphasis on neighborhood trees first). Additionally, the ARC approved Project plans includes a landscape plan that shows the exact number and location of trees throughout the developed site. The City sets forth the means of analyzing its broad policy with respect to trees, and in this instance, both the City Arborist and the ARC have concurred regarding the removal of trees. By definition, and contrary to the assertions of appellants, a "proper evaluation" under the Tree Regulations has occurred. The record reflects a careful consideration of potential tree impacts and complies with the City's Tree Regulations. Additional consideration should also be given to the correlation between the Tree Regulations and California Government Code Section 65589.50), which is described in more detail below. As explained below, a project must be evaluated under "objective" standards in effect at the time the application was deemed complete. There is nothing in the Tree Regulations constituting an objective standard prohibiting removal of the trees. 9 S L. Mayor, City Council, and Ms. Dietrick ONE 71 Palomar Avenue t N k� Page 11 of 13 I Iltbl I I 1• 3. Luneta Drive Alternative Was Proposed At Appellants Request Appellants' final argument oddly challenges the Project's improvements to Luneta Drive. The Project, as documented in the MND and the proposed conditions of approval, is required to develop Luneta Drive as a through street along the entire Project frontage in accordance with the General Plan Circulation element and City street standards. Upon completion of construction, this road segment will be dedicated to the City. Consistent with these requirements, all Project plans reflect the development of the Luneta Drive segment for vehicular traffic. The MND and conditions of approval reference that the City may, in the near future, modify its plans for this segment of Luneta Drive to limit it to pedestrian and bicycle circulation, and if the City makes such modifications (which may be subject to its own environmental review process under CEQA), then the Project will be required to accommodate the new plan.z Importantly, appellants are the parties leading the efforts to close Luneta Drive to vehicular traffic, and they are now attempting to use this as a weapon against the Project. This is disingenuous at best, and bad faith at its worst. As such, LRDG would support removing any Luneta Drive pedestrian/bike alternative from the proposed conditions of approval and proceed with the current plans to develop Luneta Drive as a public road. Should the Council nonetheless wish to consider modifying Luneta Drive for pedestrian and bike access only, it may do so without causing a segmentation challenge to the Project as appellants allege. Appellants' counsel claims that the reference to future modifications to Luneta Drive will result in unlawful piecemealing under CEQA — presumably because the Project's "traffic analysis" would change depending on whether Luneta Drive will be open for vehicular traffic or not. Appellants' counsel, however, fails to recognize that the Project is consistent with the City's recent General Plan Circulation update (and its EIR), and thus does not require a separate traffic analysis, regardless of the status of Luneta Drive. That is because the Project's trip generation rates are well below the threshold standard triggering the need for an individual traffic assessment (100 peak hour trips); instead the Project may properly rely upon the City's prior environmental review: Based on ITE Trip Generation Rates, the project is estimated to generate 220 daily trips and 20 pm peak hour trips. This is consistent with the City's General Plan EIR which evaluated traffic conditions assuming this level of development. No impacts to the immediate area were identified during that evaluation. The Z See proposed Condition of Approval 19: "Luneta Drive shall be developed as a through public street per City Engineering Standards unless otherwise waived or deferred by the City Council. If Luneta Drive is developed as a public street, then the developer shall dedicate the required public right-of-way including PUE and Street Tree easements to the satisfaction of the City. If the City Council later amends the Circulation Element of the General Plan to not require Luneta Drive as a through street, then the developer shall offer to dedicate to the City that same portion of the property for PUE, street tree easements, pedestrian and bicycle right of way, or park or other similar purposes to the satisfaction of the City." q y 1 Mayor, City Council, and Ms. Dietrick Mil• 71 Palomar Avenue I ` H Page 12 of 13 i•1k►1 LUCE Update EIR evaluated LOS for the residential and collector streets as shown in Table 1 below. The estimated number of daily trips and peak hours for the project do not exceed the maximum LOS of the updated Circulation Element and therefore did not trigger a separate traffic study. MND at 34. Thus, regardless of whether Luneta Drive is available for vehicular access, or is limited to pedestrian/bicycle access, the Project would not be required to complete a detailed traffic analysis of Luneta Drive (or the surrounding streets) because it is well below the threshold (100 peak hour trips) that would trigger the analysis. Appellants Luneta Drive claims are disingenuous and are factually and legally flawed.3 4. The Appeal Should Be Rejected City planning staff should be commended for its thorough and careful review of this proposed Project. If approved, the Project will provide essential housing to the City of San Luis Obispo, including the provision of residential units at the very low affordability standards. The Project will meet important City General Plan policies and goals aimed at providing new residential units in infill locations and the provision of housing for all financial strata. The Project will also further City's compliance with its Regional Housing Needs Allocation (RHNA) goals, particularly with the provision of four very low income affordable units. The Project's affordable component not only serves City goals, but also furthers critical state goals and policies and makes the Project eligible for protection under the Housing Accountability Act (HAA), Govt. Code § 65580 et seq. The HAA was enacted to address a severe lack of housing, including affordable housing, and to address perceived barriers to the production of this needed housing by local government and/or local opposition groups. As detailed in the staff report, the HAA prohibits local agencies from denying, unduly conditioning or reducing the density of housing projects unless very specific findings can be made that the project would result in a specific adverse impact on public health and safety that cannot be feasibly mitigated while maintaining the financial viability of the housing project. See e.g. Govt. Code § 65589.5(d)(2). As the staff report concludes, the Project does not present any specific adverse impact to public health or safety, and thus the City's discretion to disapprove, condition or reduce the density of the Project is constrained by the HAA. We would like to ensure that the City Council is specifically aware of California Government Code § 65589.50), which states that a local government may not disapprove a project "when a proposed housing development project complies with applicable, objective general plan and zoning standards and criteria, including design review standards, in effect at the time that the housing development project's application is determined to be complete" unless 3 As noted in the staff report, the Project could be eligible for an exemption from CEQA pursuant to Guideline § 15195, which exempts residential infill projects (that are less than one hundred units, on less than four acres, within a half mile of a transit stop, and provides certain levels of affordable housing). The Project qualifies under this exemption, but City staff was concerned with potential historic impacts to the Sandford House so it completed a MND. The fact that the Project was eligible for a CEQA exemption is further evidence of its de minimus traffic levels. S 5 1 Mayor, City Council, and Ms. Dietrick OWN 71 Palomar Avenue Page 13 of 13 i.fRsi r 1. P specific findings of adverse public health or safety impacts can be identified. Since this Project complies with all objective development criteria, and no such adverse impacts exist, the Project must be approved. Furthermore, this Project does not violate any objective standard. In particular, there is no objective standard stating that any of the trees on site may not be removed (e.g., no ordinance stating that a tree taller than 8' can't be removed), and therefore, under Government Code Section 65589.50), it would be unlawful for a City to deny a project due to removal of any of the trees. In addition to providing directives to the City in its processing of the Project, the HAA provides protection to project proponents and cities whose housing projects are opposed by local interest groups for their more narrow self interests. Through its adoption of Government Code § 65914 and California Code of Civil Procedure § 529.2, the state legislature acknowledged that interests groups such as these have had a damaging effect on the state's ability to provide housing for its neediest residents. As such these code provisions act to deter parties who bring lawsuits to challenge the approval of housing development projects with low and moderate income components for the purpose of delaying or thwarting the project. Government Code § 65914 allows project proponents to recoup its attorney fees and costs of litigation for having to defend such lawsuits, and Code of Civil Procedure § 529.2 allows project proponents to seek a court order that the petitioner post a bond as security for costs and any damages that may be incurred by the project proponent as the result of a delay in carrying out the development project. We highlight these provisions because they serve as strong evidence of the local and state support for projects just like the one before the City Council now. Appellants are attempting to use CEQA as an end -run around these important local and state goals and policies — and they do so without meeting their evidentiary burden to confront the substantial evidence on the record and rebut it with their own. For all the reasons set forth above, we urge you to deny the appeal and uphold the ARC's approval of the Project. We again thank you, and City staff, for its hard work and attention to this Project. Warm Regards, � iane K. Hanna, sq cc: Loren Riehl, LR Development Group Jon Ansolabehere, Asst. City Attorney