HomeMy WebLinkAbout1/15/2019 Item 9, Lopes (2)
From:James Lopes <
To:E-mail Council Website; Allan Cooper; Odile Ayral
Subject:Preview of Presentation by Foothill Blvd Civic Defense - for 790 Foothill
Attachments:7-HearingPresentiation - 790 Foothill - Final 1-15-19.pdf
January 15, 2019
Dear Mayor Harmon and Council Members:
Attached is the text of our presentation tonight, at this hour, so in case we don't have time to read through it all, you at
least have an opportunity to read it for your discussion.
Thank you for your consideration.
James Lopes
--
James Lopes
Ph. 805-602-1365
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Foothill Blvd Civic Defense
January 13, 2019
City Council
City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93401
Presentation of the Appeal to the City Council - 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 as proposed with conditions of approval.
Here’s where we think that the staff have got it wrong and narrowed the scope of the Planning
Commission review unfairly and inflexibly:
1. View blockage of Bishop Peak and San Luis Mountain
a. Our Appeal and Supplement dated December 28, 2018 have shown “credible evidence”
that the project will block large-scale, iconic views of Bishop Peak from Foothill
Boulevard and of San Luis Mountain from Chorro Street. Our supplement clearly shows
that a major view of Bishop Peak would be almost totally blocked:
Bishop Peak @Foothill & Chorro Project Rendering showing view blockage
2. Inconsistency with the General Plan
a. Our references to the COSE and Circulation Element show that the project is designed so
that it is not consistent with those general plan policies.
b. This view blockage is clearly not consistent with the direct, definite and measurable
proscriptions of the Conservation and Open Space Element, such as “Development
projects shall not wall off scenic roadways and block views.”
c. The California Environmental Quality Act (and by reference the CEQA Guidelines)
requires that if a project is not consistent with “all general plan policies,” then it does
not qualify for a Categorical Exemption from environmental review. The specific
wording in this statute clearly sets a requirement which is different than the question of
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general plan priorities and the case law observations by staff. We are confident that a
reasonable person would find these prohibitions to be definite, specific and direct.
d. We encourage you to find that the project as designed does not meet the “threshold
criteria” for a residential categorical exemption from CEQA review. We ask that you
continue this project proposal and require an Initial Study of the CEQA topics, in order
to determine whether a mitigated negative declaration can be made or that an
environmental impact report is required. The Housing Accountability Act allows this.
e. A new approach we recommend is to reduce the unit sizes. We encourage you to direct
a reduction in the unit sizes to follow up the discussion on page 150 of the staff report.
The proposed density – number of units – can be maintained, but their large size can be
reduced to moderate sizes. The size of the two-bedroom units is unnecessary at 1,200
square feet, or the size of a double-wide mobile home! This reduction will have several
benefits:
i. A unit floor area reduction will lower the potential parking demand to fit the
number of proposed spaces. The current size of bedrooms will accommodate
234 occupants, which staff assumes will be one per partitioned space.
However, the 123 residential spaces only serve half that population. This
difference will result in unsafe traffi c circulating for parking spaces in the
vicinity.
The parking requirement is incorrect and needs to be recalculated if you agree
that the partitions in effect create bedrooms. The developer apparently agrees
and advertises the units as four bedrooms. The 21 one-bedrooms and the 45
two-bedrooms would need 44 more parking spaces. These spaces are 36%
more than the 123 required. However, a reduction in bedroom size to 12x12
and 144 square feet will retain the proposed number of bedrooms and result in
the proposed 123 parking spaces.
ii. A floor area reduction in the proposed units can also allow the creation of a
view corridor through the site. The space saved will make unnecessary about a
third of the floor areas on the third and fourth floors. This view corridor is a
feasible mitigation of the project’s inconsistency with the COSE.
The staff estimated that a reduction in unit size of the two -bedroom units would
“save” about 18,000 square feet of floor area. Additionally, a reduction in
bedroom sizes to 144 square feet in the one-bedroom units would “save” about
3,000 square feet. The total 21,000 square f eet is exactly the square footage of
units within a Bishop Peak view corridor which we estimate below, on the third
and fourth floors.
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3. Project is inconsistent with the C-C-SF zone.
a. The Zoning Ordinance requires that, “for districts with a special focus overlay, the
overlay zone requires that all “development within the special planning areas shall
adhere to the requirement of the underlying zone district…”
It is important to note that the applicant did not provide, nor the City request,
documentation that supported the need for height and site coverage increases beyond
the zone standards. Without this documentation, the project proposes more 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. Without this documentation, it is improper
to find the project consistent with the C-C-SF zone and therefore it is not exempt from
environmental review.
b. We offer another reason why the project is not consistent with zoning. The project is
located outside the text description of the special focus overlay zone. The text sets the
boundary of the area as “land on both sides of Foothill Boulevard between Chorro and
Santa Rosa.” The illustrative map showing district boundaries is apparently drawn
incorrectly, since it includes property west of Chorro Street. The text then explains that,
View Corridor to
Bishop Peak and to
San Luis Mountain
View Corridor to Bishop
Peak and to San Luis
Mountain at Foothill and
Chorro
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“At the affected property owners’ request, the boundary of this area on the nort h side
of Foothill may be extended to include one or more of the existing commercial
properties west of Chorro Street.”
The staff has not indicated that the applicant requested to be included within this
special focus area, and no amendment to the area description is proposed to include the
site. The project is not consistent with this Special Overlay District because the project
site is outside the described area.
4. The project review has been divided 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. This prevented 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
request was withheld until this City Council hearing after the commissions’ review
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, per HAA Sec. 65589(d) and (i).
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 two state laws speak differently about your discretion. The Density Bonus Law
allows the approval of this project to be conditioned on any study which is required by
state law. This study would be the CEQA initial study and possible subsequent studies –
an MND or an EIR. Staff did not require this study or adequate documentation to justify
the applicant’s proposed exceedances in height and coverage standards. (DBL Sec.
65915 (a) (2).
c. The Housing Accountability Act (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.
The City Council and commission decision makers have broad “police power” to use
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.
What the law does not say, is that the City may reduce the density bonus, or the
incentives, as long as it is feasible to develop the proposed affordable units. The HAA
does 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 Commission hearing and
in this hearing’s staff report.
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
density bonus and waiver request.
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We ask that you direct staff to provide that information to the Architectural Re view
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.
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 “an applicant to provide reasonable documentation to establish eligibility for a
requested density bonus, incentives or concessions…or waivers or reductions in
development standards (Sec. 65915(a) (1)).”
b. The staff did not obtain adequate information that the applicant should obtain
incentives, concessions or waivers. They have used the incorrect interpretation that the
City does not have the discretion to limit, reduce or modify a request for concessions or
waivers. 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 admits that there is a high accident rate in the vicinity. It is this issue
which should have more study in relation to the proposed improvements and their
effectiveness.
This concludes our presentation of the appeal as of this date.
Sincerely,
James Lopes
Odile Ayral
Appellants