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HomeMy WebLinkAbout1/15/2019 Item 9, Lopes -Foothill Blvd Civic Defense January 13, 2019 City Council City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 RE: Comments on the Staff Report for the January 15, 2019 hearing on 790 Foothill; File Number USE-1187-2017 Dear Mayor Harmon and Members of the City Council: The staff report for the January 15, 2019 hearing responds to our appeal of the Planning Commission approval of the 790 Foothill project. It rebuts almost all of our points and recommends that your Council approve the project with conditions of approval. The following comments explain how the staff is incorrect on several points, and it clarifies those points and responds to the staff report: 1. View blockage of Bishop Peak and San Luis Mountain a. Our comments were that the Conservation and Open Space Element states specific We provided a supplemental letter on December 28, 2018 which refuted staff comments earlier, that other equal views are available of Bishop Peak further west on Foothill. b. The major point remains that the project violates is not consistent with these General Plan documents. c. The COSE and Circulation Element policies are very specific, directing the City to act (in good faith ) to retain scenic views of our peaks. Bishop Peak @Foothill & Chorro Project Rendering showing view blockage 1 2. Inconsistency with the General Plan a. We provided references to the COSE and Circulation Element policies because they show that the project is designed so that it is not consistent with those general plan policies. Our supplement of December 28, 2018 clearly shows that a long-term view of Bishop Peak would be almost totally blocked. b. The California Environmental Quality Act requires that if a project is not consistent with all general plan policies, then it does not qualify for a residential or other Categorical Exemption from environmental review. Please note this emphasis. c. The staff report argues that these policies must be taken within the context of other general plan policies, such as to provide affordable housing. d. considering all its aspects, it will further the objectives and policies of the general project must court cases consider general However, staff does g provisions will e. The staff reasoning does not apply to the threshold criteria for qualifying for a Categorical Exemption. Staff states that a project must be consistent with all general plan and zoning policies. The specific wording in this statute clearly sets a requirement which is different than the question of general plan compatibility and the case law observations by staff. We urge you to carefully consider the specific prohibitions and direction within our cited policies. We are confident that a reasonable person would find these proscriptions to be definite, specific and direct. f. Additional staff discussion on page 153 attempts to guide the reader to thinking that the subject view blockage was considered fully in the LUCE update, and that the encouragement of taller buildings was intended to override other general plan policies. There is no ranking of priorities in general plan policies, and the City designated a site (specifically the commercial properties north of Foothill between Chorro and Santa Rosa) for increased height with the understanding that some parts of properties might or should be shorter. It is apparent that the COSE policies are important enough to preclude at least part of a taller building from blocking a prime scenic view. Staff then describes the notion that the city-wide LUCE EIR made detailed enough investigations about visual impacts, to suggest that with the application of the visual impacts would be less than significant. This project is not incorporated into the LUCE EIR. This is a very specific project, and the argument that impacts were already determined is extraneous to the compelling requirement by CEQA that projects be consistent with all general plan and zoning policies to qualify for a Categorical Exemption. g. We encourage you to find continue this project proposal so that an Initial Study will be conducted of the CEQA topics, in order to determine whether a mitigated negative declaration can be made or that an environmental impact report is required. 2 3. Project is inconsistent with the C-C-SF zone. a. overlay zone r b. It is important to note that the applicant did not provide, nor the City request, documentation that supported the need for a 35% density bonus and height and site coverage concessions. Without this documentation, the project proposes more units, height and coverage than allowed in the C-C-SF zone. The applicant has not shown that without these incentives, the project cannot be built. c. Without this documentation, it is improper to exempt the project from environmental review since it is not consistent with the C-C-SF zone. d. The staff report on page 154 describes how the project meets the mixed-use encouragement in the overlay district, but this is extraneous explanation to the point in the appeal. e.Another reason why the project is not consistent with zoning has been discovered. The staff report copies the policies for the Foothill Boulevard / Santa Rosa Area overlay boundaries is apparently drawn incorrectly, since it includes property west of Chorro boundary of this area on the north side of Foothill may be extended to include one or more of the existing commercial properties west of Chorro of property on the south side of Foothill and west of Chorro Street. i. The project site is located on the north side of Foothill Boulevard and west of Chorro Street. ii. The staff have not indicated that the applicant requested (in writing) to be included within this special focus area, and no amendment to the area description is proposed to include the site. No action has been taken by the City to include the project site within the Special Focus Area. The project is not consistent with this Special Overlay District for these reasons as well as others previously described. f. Staff make the argument again on the remainder of page 153 that the project is consistent with the General Plan, under the Housing Accountability Act (HAA), because a reasonable person would conclude that it is. However, substantial evidence exists that the project is not consistent with the COSE view protection policies, which are specific and proscriptive. A reasonable person would actually agree that the policies cannot be met by a portion of the building blocking scenic views. block almost the entire view of Bishop Peak. We stated above that the practice of 3 4. Division of the approval into reverse order, where the primary approval of the housing density bonus and incentives occurs after review by the Architectural Review Commission and the Planning Commission, prevents their due process obligation for a fair hearing. a. The staff report does not answer the appeal point that discretion was withheld from the Architectural Review Commission and the Planning Commission by not allowing them to discuss a reduction in the requested density, or a reduction in the size of the units, in order to make significant design changes. The decision to allow the density bonus reques occurred, depriving them of useful information concerning the feasibility of reducing the scale or the density somewhat to reduce adverse impacts, as long as the proposed 12 dedicated affordable units could be constructed. The commission, public and the applicant were deprived of legitimate due process in conducting a fair hearing, with all of the relevant information for their use within their purview and discretion. b. The City Council and co discretion through due process, wherever the City is not constrained or regulated by federal and state policies. The staff report describes the policies of the housing laws, but it is what the law does not say which is the opportunity presented by this Appeal. In summary, the HAA (Section 65589.5(d)) states that the City cannot deny or condition approval in a manner that renders the housing development infeasible for the use of the very low income affordable units, unless it makes findings that it is has met its share of regional housing needs, or specific adverse impacts on health and safety are associated with the project. What the law does not say, or is saying in a silent way which provides useful discretion, is that the City may condition the approval to reduce the density bonus, or the incentives, as long as it is feasible to develop the proposed affordable units. The HAA and the Density Bonus Law do not restrict modifying a project proposal where the requested bonus or concessions are reduced, if the project still can afford to build the proposed affordable housing units. This point was ignored by staff at the Planning As our appeal stated, withholding this discretion from the ARC and the Planning Commission bound their hands to make a decision before your Council considers the legitimacy and need of thisdensity bonus request. We ask that Council direct staff to request docum obtain the 35% density bonus and the height and coverage concessions. This information should also constructing the affordable housing units. We ask that you direct staff to provide that information to the Architectural Review Commission and the Planning Commission to re-open hearings. They need to know what adjustments are possible to the project in order to complete their purview tasks, while retaining feasibility to construct the affordable units. 4 5. The City did not obtain evidence that the applicant needs a 35% density bonus and height and coverage concessions to build 12 affordable studios. a. The staff report does not fairly explain that the Density Bonus Law actually provides discretion for the City to obtain documentation which identifies the financial need to obtain the requested incentives. In fact, the Density Bonus Law states that the City may require reasonable documentation to establish eligibility for a requested density bonus, incentives or concessions b. The allowance to obtain financial documentation by the Density Bonus Law, is a critical, revealing awareness by the Legislature that the use of the law may be abused to enable super-profitable projects to obtain all sorts of bonuses and concessions from local governments, while their margins would allow major amounts of affordable units. The staff have downplayed this opportunity for transparency and disclosure. They have used the incorrect interpretation that the City does not have the discretion to limit, reduce or modify a request for a bonus and concessions. The provision of factual Density Bonus Law. We are again requesting that this information be provided under this provision of the DBL, which enables it even though apparently not incorporated within the City Zoning Ordinance. 6. A revised Multimodal Transportation impact Study is still necessary. a. The staff report responds to this Appeal with new information on page 156 that citywide traffic counts were completed in 2018, and they show a decline in traffic on Foothill Boulevard. Staff also explain that several modifications to street paint and traffic signals are conditions of approval. The staff report does not refer to any physical location of this study, so the appellants, in the brief time available, have not been able to obtain a copy of this report. It is our understanding that it is a citywide update of traffic counts. b. The staff report describes the Traffic Study for the project - -out of the City. Unfortunately, it refers to traffic counts which are not documented. It confirms that the Cumulative Analysis includes mixed-use buildings in the University Square shopping center. This concludes our response to the staff comments in the staff report for January 15, 2019. Sincerely, James Lopes Odile Ayral Appellants 5