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HomeMy WebLinkAbout8/21/2018 Item 17, Naficy San Luis Obispo City Council Law Offices of B a b a k N a f i c y August 20, 2018 Submitted via Email and US Mail City of San Luis Obispo Attn: City Council 990 Palm Street San Luis Obispo, CA 93401 Email: emailcouncil@slocity.org Re: August 21, 2018 City Council Meeting - Agenda Item #17 REVIEW OF THE PROPOSED COMPREHENSIVE UPDATE TO THE REGULATIONS (TITLE 17) OF THE MUNICIPAL CODE AND ASSOCIATED ZONING AMENDMENTS 1540 Marsh 1. Proposed height increase along Uppoer Monterey Corridor should be denied Street The proposed Update includes revisions to the zoning regulation of the Upper Monterey Suite 110 corridor east of Downtown in order to intensify the development potential and increase San Luis Obispo allowable heights. This is to be accomplished by applying the same Downtown Code development standards to this area: California 93401 ph: 805- Downtown development standards to the Upper Monterey Street corridor (up to the railroad trestle at Pepper Street) to facilitate 593-0926 fax: development in the interim period while developing the full Upper 805-593-0946 Monterey Area Plan as called for in LUCE Program 8.2.2 (the area along Monterey from Santa Rosa to Pepper Street is located in the Downtown Core of the LUCE, while the Specific Planning Area for babaknaficy@sbcgl Upper Monterey extends all the way to Loomis near the Highway 101 obal.net on-ramp). Applicants may choose to take advantage of the Downtown development standards for more intensive development with approval from the Planning Commission that the project is consistent with the expectations for downtown core development. The current Staff Report does not mention this zone chang to the Zoning Regulations on pages 498-499 of the Staff Report. The Staff Report only obliquely refers to this provision in a table that includes a list of proposed revisions explain the practical implications of applying Downtown Core Standards to the Upper Monterey Area. The proposed zoning revision is inconsistent with the current General Plan, which does not envision or call for relaxing development standards in this area. Њ San Luis Obispo City Council August 20, 2018 8.2.2. Upper Monterey In the Upper Monterey area, the emphasis will be on revitalization and enhancement. The area above Johnson shall have an emphasis on land use compatibility and neighborhood preservation. The following actions will be pursued in this area A. The City shall investigate adding the Upper Monterey area to the Downtown Parking District, thereby allowing in-lieu payment towards common parking facilities. B. The City shall integrate a new Downtown Transit Center in the Upper Monterey area and provide enhanced connectivity to the center from the Upper Monterey area. C. The City will work with hotels in the Upper Monterey area to provide shuttle service to the Downtown and Downtown Transit Center. D. The City will promote restaurant development in the Upper Monterey area, and include outdoor dining opportunities and other public activities oriented toward Monterey Street. North of California, these types of activities shall be prohibited on the creek side of buildings. E. The City will evaluate reconfiguring Monterey Street in this area to enhance bicycle and pedestrian connectivity to Downtown and to Cal Poly. F. The City will work with local hotels and Cal Poly to develop enhanced meeting rooms and conference facilities. These types of facilities would not be located on the east side of Monterey north of California Street, nor is a stand-alone conference center appropriate for this area. G. The City will work with developers to assemble adjacent properties into lots of suitable size for redevelopment limited to areas southwest of California Street. H. The City will develop an Upper Monterey area master plan and design guide that will provide guidance on street enhancements, façade improvement programs, and pedestrian enhancement along Monterey Street. As part of this effort, the City will investigate the ability to apply form-based codes to guide future development and will involve residents in adjoining areas as well as business and property owners along Monterey Street as part of the public review process in development of the master plan/design guide. Particular attention will be given to creek protection, noise, safety, light and glare, and privacy impacts to adjoining 2 San Luis Obispo City Council August 20, 2018 neighborhoods. Notably, 8.2.2(H), which envisions the development of a Master Plan for this area, does not call for any intensification of development or relaxation of development standards for this area. As such, , therefore, impermissible. The Staff Report does not analyze the potential growth inducing impacts of this proposed zoning revision, which will likely set a precedent for and therefore induce more intensive future development along the Monterey corridor and beyond, for example along Marsh or California Streets. If the added height is approved here, the City would be unable to articulate a coherent basis for denying more intensive development beyond Upper Monterey at similarly situated locations elsewhere in the City. As such, it is likely that the proposed zone change would unintentionally foster growth in the City. Moreover, it is unlikely that the proposed zoning amendment would be temporary; it is exceedingly unlikely that once the zoning is changed, it would ever revert back to a lower height. As such, making the change before an area master plan has been prepared would be premature and inappropriate, not to mention inconsistent with a General Plan Land Use Element that was amended only a few years ago. a. The City has not adequately reviewed the environmental impacts of the proposed height increase the Upper Monterey zoning area. amendment is inadequate and fails to adequately analyze the intent and potential impacts of this proposed action. According to the proposed draft resolution that would adopt the proposed wn that proposed revisions floor area ration, and parking requirements) with The MND claims -R to C-R-D) would allow for additional building height along this corridor, resulting in an expected increase of 5 feet, with provisions for an additional 30 feet based on incorporation of specific incentives identified in the Zoning Regulations Update. The MND contends that the proposed zone change in the Upper Monterey Corridor from C-R to C- R-D and the resulting height increase would not result in any significant aesthetic impacts because any potential project would undergo site-specific review and would be subject to existing General Plan policies: This \[height increase\] would not be inconsistent with the analysis and conclusions presented in the LUCE EIR because allowable density would not change, and future development would be subject to site and project- 3 San Luis Obispo City Council August 20, 2018 specific analysis including consistencywith General Plan policies and Community Design Guidelines that require preparation of visual resource studies and consideration of scenic resources during the architectural review and entitlement process. Furthermore, the proposed Zoning Regulations Update, by itself, does not propose or authorize any development. Future land uses that occur pursuant to the proposed Project would be required to conform to all applicable regulations, performance standards and design standards that address the preservation of scenic vistas and scenic resources, including those set forth in the Zoning Regulations, as updated, and the General Plan. Pursuant to CEQA, future new land uses that occur pursuant to the proposed Zoning Regulations update would be subject to their own environmental review on a project-by-project basis to assess impacts on scenic vistas. Therefore, the proposed Project would not have a substantial adverse effect on a scenic vista. Impacts would be less than significant. This analysis does not pass legal muster, in part, because it ignores the intent of the zone change and understates its potential impacts. First, the MNDs claim that the substantial change from C-R to C-R- substantial evidence. As set forth above, the LUCE EIR did not analyze the potential impacts of height increase in the Upper Monterey because any such height increase and associated changes was not contemplated by the LUCE Update. Even if this claim was factually true, it does not compel a conclusion that the MND can properly tier on the 2014 LUCE EIR. As the Staff Report itself explains, pursuant to CEQA Guidelines Section 15168(c) , subsequent environmental review can tier on a previous program EIR to address the effects of a subsequent activity so long as the activity is within the scope of the project covered by the Program EIR (such as the LUCE EIR) and no new effects are found and no new Accordingly, to properly tier on to \[are\] with, not merely that the zone change would not be inconsistent. This, of course, the City cannot do, as the proposed Upper Monterey zoning revisions are inconsistent with the 2014 LUCE update and were certainly not covered by the 2014 EIR. Thus, the MND cannot properly tier on the 2014 LUCE EIR. The Staff Report also claims before the zone change can be approved because future developments would be subject to site and project-specific analysis. This claim is false because while all proposed development will undergo site-specific analysis, the underlying zoning regulation is significant and must be separately analyzed because these regulations establish the regulatory conditions under which any project would be developed. The zone change is intended to, and will likely result in, significant changes in the height of buildings along Upper Monterey by virtue of the fact that, if approved, this revision would allow buildings that are 35 feet taller than what is allowed under current zoning standards. This change in basic development standards is undoubtedly intended to, and will foster, taller buildings and more intensive development. To suggest otherwise is simply disingenuous. It is well-settled that revisions to general plan and zoning regulations must undergo environmental 4 San Luis Obispo City Council August 20, 2018 review even if future projects must undergo site-basic argument was rejected more than thirty years ago in Christward Ministry v. Superior Court (1986) 184 Cal.App.3rd 180, 193. Like the City here, the City of San Marcos had argued that a general plan related to a landfill need not undergo environmental review because an Environmental Impact explaining that while the general plan amendment itself did not change the environment, it would have EIR would never be required for a general plan amendment because somewhere down the road environmental review would occur. Id. The Court also noted that reviewing the general plan amendment \[and by extension, the zoning regulation here\] would comply with the public policy of conducting environmental review at the earliest possible stage. Id., at 195. Thus, following this reasoning, the City may not dispense with analysis of the environmental impacts of the proposed revision to the Upper Monterey area on the basis that future project will undergo site-specific review. Environmental review of the proposed changes is particularly critical because, in addition to the proposed height increase in the Upper Monterey area, the City proposes height and density increases at other locations. According to the MND, the revised zoning regulations would allow 10 feet of increased height in the O zone (up to 35 feet) and allow two density units on each parcel in the O zone, and allow 15 feet of increased height in the PF zone (limited to City-owned facilities). Finally it should be noted Staff concluded that amending the zoning regulation to add residential density in Downtown is not be warranted at this time address the potential impacts associated with the possible level of housing production associated with this policy change, staff determined that more in-depth policy and CEQA investigation is 2. The City should revise the way it calculates affordable housing units To promote the creation of affordable housing, the City has recently approved substantial developer-requested incentives in the form of waiver of development regulations. The proposed 790 Foothill Project, for example, has sought waiver of height restrictions (which amounts to an additional floor) and an FAR of 90% (in contrast to the maximum allotted 75% FAR) in exchange for 12 affordable units. The units in question are approximately 400 square foot studios. The Project also includes 45 two-bedroom and 21 one-bedroom units, none of which will be affordable. While in theory the Project includes 15% affordable units (12 out of 78), in reality, of the overall 75,000 square feet of living space, less than 5000 square feet be affordable housing. The proposed zone change includes an affordable housing provision that applies to planned development (PD) projects: Section 17.52.040 Mandatory Project Features The Planning Commission may recommend, and the Council may approve, a rezoning to apply the PD overlay zone only for a project that incorporates a minimum of three of the following four features: A. A minimum of 25 percent of the residential units within the project are affordable to households of very low-, low, or moderate-income households 5 San Luis Obispo City Council August 20, 2018 In theory this provision will ensure that 25% of the total residential units in a PD will be affordable. However, in practice, it is likely that as explained above, the consist of small studios while the market rate units will consist of much larger multi-unit housing. Accordingly, in order to more effectively promote affordable housing, this provision should be revised to include language that would ensure the affordable units are of the same size and quality as the market-rate units. 3. The City Council must continue to be in charge of approving affordable housing incentive Pursuant to the proposed new Section 17.102.020, the Planning Director shall have the authority to decide Affordable Housing Incentives. An action authorizing a residential density bonus in compliance with Chapter 17.140 (Affordable Housing Incentives). and confusing. This provision is confusing and ambiguous because its title refers to refers to density bonuses. Under Affordable Housing laws, separate concepts subject to different rules and regulations. This provision is therefore ambiguous and confusing to the extent that it appears to conflate the two concepts. Moreover, it is not appropriate for the Planning Director to approve incentives/density bonuses without public input and City Council oversight. In fact, the City affordable housing issues to the Planning Commission for consideration and advice to the City Council is highly problematic. As the City must carefully scrutinize proposed incentives to ensure the waiver of zoning regulations are truly necessary to make the affordable housing portion of the Project feasible. 4. Proposed Section 17.140.070 Alternative or Additional Incentives should be denied Proposed Section 17.140.070 provides: When a developer agrees to construct housing for households of very-low, lower, or moderate income households, or for qualifying senior households, or for qualifying transitional foster youth, disabled veterans, or homeless persons, and desires an incentive other than a density bonus as provided in Section 17.140.040 (Standard Incentives for Housing Projects), or when an applicant for approval to convert apartments to a condominium project agrees to provide housing for households of very-low, lower, or moderate income, or for qualifying senior households, the developer shall receive the following number of incentives or concessions: While the title for proposed 17.140.070 purports to relate to alternative or additional incentives, the text does not in fact address the process and rules that apply to incentives under Gov. Code § §65915, where the applicant seeks incentives in addition to the density bonuses. The proposed regulations do not include rules and procedure for processing proposed affordable housing 6 San Luis Obispo City Council August 20, 2018 incentives. Such regulation is vitally needed at this time. Gov. Code §65915(d)(3) provides in part: "The city, county, or city and county shall establish procedures for carrying out this section, that shall include legislative body approval of the means of compliance with this section." The reference to rying out this section of requests for incentives. To the extent that the City manner and procedure by which the City addresses applicant-sought incentives, the City is in violation of §65915(d)(3). Conclusion As these and other public comments have demonstrated, the City should spend more time considering the bulk of proposed zoning revisions before considering their final approval. Sincerely, :XYXbôFX\]`Zpô Babak Naficy cc. Doug Davidson (email only) 7