HomeMy WebLinkAbout7/25/2018 Item 1, Riehl (2)
Goodwin, Heather
From:Cohen, Rachel
Sent:Wednesday, July 25, 2018 5:18 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 5:02 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 in receipt of a letter from Wittwer Parkin (the “Letter”) written on behalf of Foothill Blvd Civic
Defense regarding our development project at 790 Foothill (the “Project”). We are responding to that letter
because we are concerned that certain misstatements of law and fact within the Letter are likely to cause
confusion at our upcoming Planning Commission hearing. Contrary to the assertions of the Letter, we
would like to concur with the Staff Report’s determination that the project is categorically exempt from the
provisions of CEQA under Section 15332 of the CEQA Guidelines.
The Letter’s primary objective appears to be to dispute application of the aforementioned
exemption. Section 15332 of the CEQA Guidelines provides that projects shall be exempt from the
provisions of CEQA if they are characterized as in-fill development meeting certain conditions. Specifically,
the Letter focuses on trying to undermine (to no avail) the application of CEQA Guideline Section 15332(a),
which states:
(a) The project is consistent with the applicable general plan designation and all applicable general plan
policies as well as with applicable zoning designation and regulations.
As discussed at length in the Staff Report, the Project conforms to the requirement of CEQA Guideline
Section 15332(a) and the exemption therefore applies. The Letter’s analysis to the contrary must be
rejected for several reasons, including, without limitation, the following:
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1. The letter incorrectly states that environmental review is required because “the Project violates
General Plan policies under the City’s Conservation and Open Space element rendering the claimed
exemptions inapplicable.” However, this statement appears to be based on a material
misunderstanding of the way in which General Plan Elements interact with one another, as such
elements must be read together and assumed to be consistent with one another. The Land Use
Element (or “LUE”) is considered the “core” of the General Plan. It is driven in part by the other
elements and is intended to be consistent with such other elements. With respect to the Project, the
Land Use Element specifically prescribes a high density, mixed-use Project on the property and
contemplates height exceptions (with or without application of the State’s Density Bonus Law also
referred to as CA Government Code Section 65915 or “DBL”). This project is consistent with that
express policy, and is not in conflict with any other policies (the Letter does not cite to any express
policy directly applicable to the project, rather relies on subjective opinions and interpretations of
general provisions in the Conservation and Open Space Element or “COSE”).
a. Notably, per the LUE: “The Land Use Element represents a generalized blueprint for the future
of the City of San Luis Obispo. Required by State law, it is the core of the General Plan. Starting
with conditions at the time of adoption, the Land Use Element sets forth a pattern for the orderly
development of land within the City’s planning area.” As it relates to the Project, the LUE
expressly indicates the desire for development of this Special Planning Area.
b. The LUE goes on to explain that the COSE has the “following key implications for the Land Use
Element”…. “The Land Use Element works with this element and incorporates concepts such as
clustering and buffering open space areas in order to enhance their protection.” Importantly,
the Land Use Element then states “Policies in the Land Use Element and the General Plan Land
Use Diagram are designed to be consistent and complementary with all other General Plan
Elements.”
i. Please also see California Government Code Section 65300.5, which provides that “the
Legislature intends that the general plan and elements and parts thereof comprise an
integrated, internally consistent and compatible statement of policies for the adopting
agency.”
c. It is critical to note that state and local regulations mandate that the Land Use Element
works in conjunction with the other elements of the General Plan. With respect to the
Project, its location has been included within a Special Planning Area designated
specifically for the purpose of high density, mixed use development with consideration of
building height adjustments (see LUE Section 8.2.1). This Project is based upon the
express language of the LUE intended to direct future development of the Project site
itself. The Letter advocates for an interpretation that would imply that the express
language of the LUE is inconsistent with the COSE, which is not a possible legal or logical
interpretation.
i. Consistency with the Land Use Element, and specifically Section 8.2.1, is not, and cannot,
be in question. In this particular instance, the City desired so strongly to have this
particular lot developed for the submitted purpose, that it took the unusual step of
designated the site for the exact purpose.
ii. Since the Land Use Element must be considered consistent with the other elements of the
General Plan, we believe it would be impossible to conclude that the site is inappropriate
for the proposed project based on inconsistency with alternate General Plan
provisions. In other words, if a high density, mixed-use project is expressly descibed by
the LUE then it cannot also be inconsistent with an alternate element, as this would
undermine the interpretation rules provided by the City and the State. Instead, the only
possible conclusion is that the project is consistent with the General Plan and the relied
upon policies in the LUE are consistent with the policies of the COSE.
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1. It should be noted that the LUE and COSE are consistent with one another. The
City has explained that the high density development in this limited Special
Planning Area was included in the LUE as a way of preserving open space and view
policies contained within the COSE by limiting high development projects to a
particular area. So while such an explanation is not required to find the elements
consistent, it is helpful to understanding the issue and how these two policies co-
exist consistently with one another.
d. The proposed interpretation would also conflict with the precedence set by numerous other
infill projects throughout the city, including, within the Special Planning Area.
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2. The Letter ignores the holding in Wollmer v. City of Berkeley (193 Cal.App.4 1329) despite
reference to such case in the Staff Report and proposed Resolution, and the fact that the case is
directly applicable to the Project and definitively rejects the arguments contained in the Letter.
a. Wollmer held that development standards relaxed under the density bonus law are not
considered “applicable” with respect to review of consistency with the General Plan. This means
that application of a height concession by definition can’t cause a project to be deemed
inconsistent with the General Plan for purposes of application of a CEQA exemption.
b. With respect to the Project, this means that any analysis is invalid claiming that an exemption
can’t apply because “the proposed project exceeds the height standard… and the coverage…”
and therefore “the City’s claim of exemption from environmental review is wholly improper”
(see Section I.b. of the Letter). Such conclusion was expressly rejected by the court in Wollmer.
3. The Letter states that the “City Cannot Bifurcate Approval of the Housing Incentives Which Result in
Reduction of Site Development Standards from the Rest of the Project.”
a. The Letter states that the procedure places “the City in an untenable situation wherein the City
would possibly bind themselves to a decision regarding the approval of reduction of site
development standards before considering the legitimacy of the rest of the Project” and under
this process the letter posits that “the City would have committed itself to a project without first
considering the environmental impacts in violation of CEQA.”
i. This position seems to misunderstand the process. Planning Commission has been
charged with passing a resolution including environmental review, or in this case, an
exemption from environmental review. As the Planning Commissioners are aware, the
Planning Commission is reviewing this project before the City Council grants the
approval of the concessions. Thus the Letter’s concern is being addressed through the
current process.
ii. Additionally, the manner of proceeding is expressly consistent with local regulations,
including:
1. SLO Municipal Code Section 17.53.020 requires Planning Commission approval of
projects located within the Foothill Boulevard/Santa Rosa Special Planning Area.
2. Section 17.90.040(A) states that the City Council shall approve any requested
concessions.
4. The Letter’s DBL analysis must be completely disregarded, as it appears to be citing an outdated
version of the DBL, and accordingly, the requirements highlighted no longer apply. In fact, there
have been several updates to the law since the burden of proof fell on the applicant as insinuated in
the Letter.
a. Section 65915(d)(4) states that “The city… shall bear the burden of proof for the denial of a
requested concession or incentive.”
b. Additionally, the DBL Section 65915(d)(1) states that the City “shall grant the concession or
incentive requested by the applicant unless the city … makes a written finding…” (emphasis
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added). The burden is on the city to justify denying the concession and not on the applicant to
justify granting the concession.
c. It should also be noted that the DBL expressly states that relaxation of development standards
is “an identifiable and actual cost reduction, consistent with subdivision (k)”, as subdivision (k)
establishes “reduction of site development standards” as a valid concession. This means that by
law the concession is consistent with subdivision (k) and a claim of the concession not resulting
in “identifiable and actual cost reductions” must be rejected.
d. Under the DBL, a city can’t shift the burden to an applicant to demonstrate the necessity of the
concessions, as demanded in the Letter.
5. The Letter incorrectly states “the applicant has made no indication whether the purported very low-
income studios will be offered for sale or rent or the proposed factors which will make the twelve
studios affordable to very-low income households.”
a. The Project Description within the submitted plan set states expressly that the units are “rent-
restricted for Very Low Income Households… in accordance with California Government Code
Section 65915.” Furthermore, this project is not a condo project (and no subdivision is sought),
so by definition the units are not available individually for sale.
b. Contrary to the Letter’s assertions, the DBL provides extensive detail regarding the factors
applicable to determining affordability to Very Low Income households. See e.g. California
Government Code Section 65915(c)(1).
c. To the extent there is concern regarding the lack of a condition of approval to restrict the
affordable units, we do not object to inclusion of any such condition, as such condition already
applies by virtue of reference to the DBL.
6. The Letter also ignores the following critical information applicable to the Project contained within
the submitted plan set under Project Description: “Furthermore, both of the foregoing concessions
are required under CA Government Code Section 65915(e)(1), which requires that a city may not
apply any development standard that will have the effect of physically precluding the construction
of a development. It would be physically impossible to construct the project with the density bonus
as required by state law.”
a. While such an analysis is not required, it should be noted that even if the concessions were not
granted, they would additionally be required under CA Government Code Section 65915(e)(1),
as it would be physically impossible to build the project with the density bonus without such
waiver of development standards.
i. Given the substantial site constraints, such analysis is straightforward and
simple. Approximately 1/3 of the units are located on the added floor of the
building. The density bonus is approximately 1/3 of the units. If the height concession
was not provided, the density bonus could not be accommodated. The lot coverage
exception works in a similar way, as without that concession, fewer units would fit per
floor.
7. In reviewing this process, we believe that the Commission should also consider SLO Municipal Code
Section 17.90.070(A), which states that Projects subject to the density bonus provisions “shall
receive high priority processing, to the extent allowed by law.”
Please let me know if you have any questions or comments.
Thanks.
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