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Home My WebLink About7/25/2018 Item 1, Ansolabehere Goodwin, Heather From:Cohen, Rachel Sent:Wednesday, July 25, 2018 12:46 PM To:Advisory Bodies Subject:FW: 790 Foothill Boulevard Please forward to the Planning Commission, July 25, 2018 meeting, Item #1. Rachel Cohen Associate Planner Community Development 919 Palm Street, San Luis Obispo, CA 93401-3218 E rcohen@slocity.org T 805.781.7574 slocity.org From: Ansolabehere, Jon Sent: Wednesday, July 25, 2018 12:43 PM To: Babak Naficy < Cc: Cohen, Rachel <rcohen@slocity.org>; Davidson, Doug <ddavidson@slocity.org> Subject: RE: 790 Foothill Boulevard Dear Mr. Naficy, Rachel forwarded me your e-mail below. I wanted to briefly respond to your argument regarding the City’s interpretation and reliance on the Wollmer case for the project’s CEQA Infill Exemption. The concessions that the developer of 790 Foothill are asking for are waivers of the City’s development standards – i.e. height and lot coverage. Whether these waivers are generated under §65915(e) or (d)(1), the analysis is exactly the same. Here is the relevant discussion in the Wollmer case in determining that relaxation of development standards were not “applicable” standards in regards to the infill exemption: As pertinent here, the density bonus law provides that “\[t\]he granting of a density bonus shall not be interpreted, in and of itself, to require a general plan amendment ..., zoning change, or other discretionary approval.” (§ 65915, subd. (f)(5).) And, as explained in part II.A.4., ante, subdivision (e)(1) prohibits a local municipality from applying “any development standard that will have the effect of physically precluding the construction” of a density bonus-qualifying development. *** The City reasoned that the development standards which it waived pursuant to section 65915, subdivision (e) were not “applicable” to the project within the meaning of Guidelines section 15332, subdivision (a) because the above statute renders these standards inapplicable in order to allow the density bonus. Further, the inclusionary ordinance, which is part of the City's zoning ordinance, generally requires the City to grant density bonuses upon a proper application (Berkeley Mun.Code, § 23C.12.050.A), and states that the “use of a Density Bonus is preferred over other types of concessions or incentives. Incentives may include, but are not limited to, fee deferments and waivers, 1 granting of Variances, relaxation of otherwise applicable Permit conditions and provision of government benefits” (id., § 23C.12.050.C). Wollmer asserts that by applying the exemption in a way that harmonizes with relevant law, the City in effect amended the exemption, improperly expanded its definition, and exceeded its jurisdiction. There 14 is no support for this misguided assertion. The City properly applied the plain meaning of Guidelines **795 section 15332, subdivision (a) to its own codes in a manner that was in harmony with the state's density bonus law, and so *1349 applied, properly found that the project was exempt from CEQA. On its face the exemption only requires consistency with applicable general plan designations and policies and applicable zoning designations and regulations. (Guidelines, § 15332, subd. (a).) The density bonus statute in turn requires a waiver of development standards that physically preclude construction of a density-bonus qualifying project. (§ 65915, subd. (e)(1).) And the City's own zoning ordinance generally requires the grant of a density bonus upon a complete application. (Berkeley Mun.Code, § 23C.12.050.A.) Taking these laws together as they operate in the context of a density bonus project, it is clear that the waived zoning standards are not “applicable” and that the requirements of Guidelines section 15332, subdivision (a) were met. (emphasis added) Wollmer v. City of Berkeley, 193 Cal. App. 4th 1329, 1348–49, 122 Cal. Rptr. 3d 781, 794–95 (2011) §65915 (j)(1) similarly states: (j) (1): “The granting of a concession or incentive shall not require or be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, study, or other discretionary approval.” The analysis is the same. Please let me know if you have any questions or comments. Jon From: Babak Naficy \[mailto:babaknaficy@sbcglobal.net\] Sent: Tuesday, July 24, 2018 5:05 PM To: Davidson, Doug <ddavidson@slocity.org>; Cohen, Rachel <rcohen@slocity.org>; Advisory Bodies <advisorybodies@slocity.org> 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. 2 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. 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 3 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 -- 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. 4