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HomeMy WebLinkAbout7/25/2018 Item 1, Naficy Goodwin, Heather From:Babak Naficy <babaknaficy@sbcglobal.net> Sent:Tuesday, July To:Davidson, Doug; Cohen, Rachel; Advisory Bodies Subject:Re: 790 Foothill Boulevard Dear Rachel, I have a few comments and concerns about the above mentioned project. the Project is not exempt from CEQA The Staff Report claims the Project is exempt from CEQA, however, the Project is inconsistent with the underlying zoning and zoning regulations as to height, FAR and parking requirements, among others. As such, the Project is not statutorily exempt under CEQA Guideline 15332 because it is not consistent with all underlying zoning regulations. he Staff Report claims that "modifications to zoning regulations as required by State Density Bonus law, do not disqualify a project from claiming this exemption" citing, Wollmer v. City of Berkeley, 193 Cal. App. 4th 1329, 1338 (2011). This interpretation is incorrect because the only issue in Wollmer was whether the City's waiver of zoning standards under §65915(e) precluded the City's approval of the Project utilizing a CEQA exemption. The Court sided with the City because it concluded that "it is clear that the waived zoning standards are not “applicable” and that the requirements of Guidelines section 15332, subdivision (a) were met." In essence, the Court concluded that the grant of the waiver did not make the project inconsistent with the waived zoning provisions. In this case, the City is not required to waive any zoning standards under Gov Code §65915(e), as was the case in Wollmer, but proposes to grant certain incentives or concessions under Gov Code §65915(d). As such, the City cannot make a finding that the zoning regulations in question simply are not "applicable" as was the case in Wollmer. The exemption does not apply also because there is substantial evidence to show the Project could result in significant impacts related to traffic. See, CEQA Guideline §15332(d). The Project is not categorically exempt also because an exception applies. The Project is not categorically exempt because due to unusual circumstances, the Project may well cause a significant impact on the environment. See CEQA Guideline §15300.2(c). The unusual circumstances are the the proposed low-income housing incentives: excess height and FAR. The Project location is also unusual in that it is located at a "complex intersection" that has a history of high collision rates and is need of improvements. The Project is unusual also in that while it does not provide adequate parking. The Project includes 78 residential units, including 45 two-bedroom apartments, each of which will likely house 4 Cal Poly students. Accordingly, while the Project superficially provides more than adequate parking, in reality it does not provide adequate parking. Moreover, there is ample evidence to suggest the Project can adversely affect views from Foothill Blvd, which has been deemed to possess scenic values. The special parking dispensations proposed for the Project as well as the added trips would likely result in traffic impacts at a very busy and unsafe intersection that the Circulation Element describes as "complex". The Project, moreover, is inconsistent with the surrounding neighborhood because of its height, bulk and not being set back from Foothill. It is important to note that the Wollmer court went on to consider and analyze petitioner Wollmer's claim that an exception tot the exemption applied because of unusual circumstances. 1 The City may not grant the proposed "incentives" without adequate analysis as required by state law. Gov. Code §65915(d) provides: (1) An applicant for a density bonus pursuant to subdivision (b) may submit to a city, county, or city and county a proposal for the specific incentives or concessions that the applicant requests pursuant to this section, and may request a meeting with the city, county, or city and county. The city, county, or city and county shall grant the concession or incentive requested by the applicant unless the city, county, or city and county makes a written finding, based upon substantial evidence, of any of the following: (A) The concession or incentive does not result in identifiable and actual cost reductions, consistent with subdivision (k), to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in subdivision (c). (B) The concession or incentive would have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the development unaffordable to low-income and moderate-income households. The Staff Report misleadingly implies the Project is categorically entitled to "incentives" (excess height and FAR) because it includes affordable housing. This is not true. According to Gov. Code §65915(d), cited above, the City must approve the requested incentives unless the incentives do not actually reduce the cost of the affordable housing or if the Project is adversely impacts public health and safety or the physical environment... The Staff Report does not include any evidence that shows the City has considered either of these two factors. In fact, by insisting that the Project is exempt from CEQA, the City has deliberately kept itself ignorant as to the Project's potential environmental impacts and any corresponding impacts on the pubic health and welfare. Likewise, the record, including the Staff Report, does not include any evidence to show the City has even considered the question of whether "the concession" (i.e. excess height and FAR) results in any actual cost reduction for affordable housing costs or rents. Based on the foregoing, I believe the Planning Commission is not in a position to consider approving the Project at this time. sincerely, Babak Naficy 2 -- Babak Naficy Law Offices of Babak Naficy 1540 Marsh Street, Suite 110 San Luis Obispo, Ca 93401 babaknaficy@sbcglobal.net www.naficylaw.com 805-593-0926 phone 805-593-0946 fax ________________________________________ This e-mail, and any attachments hereto, are intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, or any attachment hereto, is strictly prohibited. If you have received this e-mail in error, please immediately notify the sender by reply e-mail and permanently delete the original and any copy of this e-mail and any printout hereof. 3