HomeMy WebLinkAbout7/25/2018 Item 1, Riehl
Goodwin, Heather
From:Cohen, Rachel
Sent:Wednesday, July 25, 2018 5:20 PM
To:Advisory Bodies
Subject:FW: 790 Foothill - Correspondence for Planning Commission
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: Loren Riehl <
Sent: Wednesday, July 25, 2018 5:09 PM
To: Cohen, Rachel <rcohen@slocity.org>
Cc: Ansolabehere, Jon <JAnsolabehere@slocity.org>; Davidson, Doug <ddavidson@slocity.org>
Subject: 790 Foothill - Correspondence for Planning Commission
Dear Ms. Cohen:
We are also in receipt of a letter from Babak Naficy (the “Naficy Letter”) regarding our project at 790 Foothill (the
“Propject”). Please see my prior email regarding the proper application of the CEQA exemption, as it addresses some of the
concerns raised in the Naficy Letter. Please also note the following:
1. The Naficy Letter states that the Wollmer decision does not apply to granting of a concession. This is in conflict with the
express language of the Wollmer decision. Wollmer explains that “as pertinent here, the density bonus law provides that the
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.” The decision goes on to find that, in conjunction with the foregoing, “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.”
Please note that CA Government Code Section 65915(j)(1) states “The granting of a concession or incentive shall not require or
be interpreted, in and of itself, to require a general plan amendment…., zoning change, study, or other discretionary
approval.” (emphasis added). Furthermore, the granting of a concession under CA Government Code Section 65915(d) is the
same process as waiving a development standard under CA Government Code Section 65915(e)(1), as both provisions require
a city to grant the concession or waiver, respectively, unless they can make certain findings. In other words, both provision
require that the concession or waiver, as applicable, be granted. Therefore, the holding of Wollmer remains directly on point.
Additionally, even without the above-referenced conclusive language on the subject, the position advocated in the Naficy
Letter lacks a common sense understanding of the code sections in question. The point of CA Government Code Section
65915(d) is the same as Section 65915(e). Both sections are based on accommodating a development project to allow for the
inclusion of a density bonus. Furthermore, as pointed out in my earlier letter, this project application has included under the
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Project Description a note that the height and lot coverage exemptions are required under both CA Government Code Section
65915(d) and (e).
2. The Naficy Letter confuses the requirements under CA Government Code Section 65915(d). Notably, the Naficy Letter
draws a conclusion that the statute referenced within the Naficy Letter expressly rebuts. According to the Naficy Letter, the
City failed to consider that “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…” However, the language included in the Naficy
Letter from CA Government Code Section 65915(d) states that a city “shall grant the incentive or concession requested by the
applicant unless the city … makes a written finding…” (emphasis added). In other words a city must approve the concession
unless it makes certain findings. Under CA Government Code Section 65915(d)(4), the city bears the burden of proof. This
means that, contrary to the Naficy Letter, the city is not required to make an affirmative finding that the exceptions don’t
apply, but rather, the city would be required to make an affirmative finding if such exceptions did apply. No exceptions exist,
so no further analysis is required.
3. Additionally, the Naficy Letter highlights the following language from CA Government Code Section 65915(d)(1)(A): “The
concession or incentive does not result in identifiable and actual cost reductions, consistent with subdivision
(k)”. Unfortunately, the Naficy Letter then fails to analyze subdivision (k), which provides that “a reduction in site
development standards or a modification of zoning requirements” is a valid concession. Subdivision (o)(1) goes on to state
that development standard includes a “height limitation” or other similar condition. When read together, this means that a
height and lot coverage exception are necessarily within subdivision (k), and the exception under CA Government Code
Section 65915(d)(1)(A) cannot apply.
Please let me know if you have any questions or comments.
Thanks.
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