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01-15-2019 Item 9 - Review Appeal 790 Foothill
Department Name: Community Development Cost Center: 4003 For Agenda of: January 16, 2018 Placement: Public Hearing Estimated Time: 180 minutes FROM: Michael Codron, Community Development Director Prepared By: Rachel Cohen, Associate Planner Jake Hudson, Transportation Manager SUBJECT: REVIEW OF AN APPEAL (FILED BY FOOTHILL BLVD. CIVIL DEFENSE) OF THE PLANNING COMMISSION’S DECISION TO APPROVE A USE PERMIT FOR A NEW FOUR-STORY MIXED-USE PROJECT WITH 6,800 SQUARE FEET OF GROUND FLOOR COMMERCIAL/RETAIL SPACE, 78 RESIDENTIAL UNITS, AND 155 PARKING SPACES WITH A REQUEST FOR MECHANICAL PARKING LIFTS AND EXPANDED HOURS OF OPERATION FOR THE COMMERCIAL SPACES. TWELVE OF THE UNITS IN THE PROJECT WILL BE AFFORDABLE FOR VERY-LOW INCOME HOUSEHOLDS, ALLOWING A 35% DENSITY BONUS AND AFFORDABLE HOUSING INCENTIVES AND WAIVERS ARE REQUESTED INCLUDING THE CONSTRUCTION OF A 43-FOOT TALL STRUCTURE WHERE 35 FEET IS NORMALLY ALLOWED AND AN INCREASE IN ALLOWABLE LOT COVERAGE FROM 75% TO 90% (790 FOOTHILL). RECOMMENDATION Adopt a resolution (Attachment A): 1. Denying the appeal and upholding the Planning Commission’s approval of a new four-story mixed-use project with 6,800 square feet of ground floor commercial/retail space, 78 residential units, and 155 parking spaces with a request for mechanical parking lifts and expanded hours of operation for the commercial spaces; and 2. Approving a density bonus per Government Code sections 65915 (b), (f)(2) and waiver of development standards per Government Code 65915(e)(1).1 1 Copy of Gov. Code 65915 provided as Attachment F. All relevant references are highlighted. Packet Pg. 141 Item 9 SITE DATA Applicant LR Real Estate Investment Group, LLC. Representative Thom Jess, Arris Studio Architects Zoning C-C-SF General Plan Commercial Site Area 1.33 acres (58,076 s.f.) Environmental Status Categorically exempt under Class 32, In-Fill Development Projects, Section 15332 of the CEQA Guidelines REPORT-IN-BRIEF The applicant submitted an application for a new four-story mixed-use project with 6,800 square feet of ground floor commercial/retail space and 78 residential units. The project includes a 35% density bonus as allowed per State law, because 12 of the units are proposed to be deed restricted for very-low income households (less than 31-50% of area median income). The applicant is requesting two affordable housing incentives under Government Code section 65915(d) et seq: a 43-foot maximum height for the structure where 35 feet is allowed and an expansion of the allowable coverage for the site from 75% to 90%. Alternatively, the applicant has also requested these incentives as waivers of development standards per Gov. Code § 65915(e)(1). The project required use permit approval for the use of mechanical parking lifts and expansion of the hours of operation for retail/commercial spaces within a mixed-use project. Additionally, the project is located within the Foothill Boulevard/Santa Rosa Special Planning Area and required Planning Commission (PC) review for compliance with Chapter 8 (Special Focus Areas) of the Land Use Element (Zoning Regulations, Chapter 17.53: Special Focus Area (S-F) Overlay Zone). The project was reviewed by the Architectural Review Commission (ARC) on May 7, 2018 and July 16, 2018. The ARC approved the applicant’s revised plans with the addition of four new conditions (Attachment B, ARC Resolution). On July 25, 2018 the Planning Commission (PC) reviewed and approved the use permit for a mixed-use project, expanded hours of operation, and the use of mechanical parking lifts (Attachment C, PC Resolution). The ARC’s actions were not appealed. The scope of this report is to provide an evaluation of the project in terms of its consistency with the City’s General Plan, Zoning Regulations and Design Guidelines and other applicable City policies and standards. Consistency with State codes is also evaluated due to protections provided by the Density Bonus Law and Housing Accountability Act. The Council is being asked to review the proposed project in consideration of the appeal, however, the review is considered de novo2 and Council is not limited to acting on the items brought up in the appeal. 2 17.126.050(A) Hearings and notice: Action on appeals shall be “de novo” review and shall be considered at the same type of hearing and after the same notice that is required for the original decision. Packet Pg. 142 Item 9 Based on the analysis set forth below, staff is recommending the City Council deny the appeal, thereby upholding the Planning Commission’s approval of the project, and approve the waiver of development standards to allow increased height and lot coverage, as requested by the Applicant (Attachment A). If the Council denies the appeal, the project will have all necessary entitlements needed to move forward for building permits. While the staff recommendation is to deny the appeal and approve the project, the City Council may choose to uphold the appeal. If the City Council chooses to uphold the appeal and deny the project, special findings are needed as required by State law to form an adequate basis for the denial. Staff’s recommendation, should Council want to pursue this option, would be to provide specific direction to Staff and have Staff return with the necessary findings to uphold the appeal. Similarly, if the City Council reduces the project’s density or adds conditions to the project that have the effect of reducing the project’s density, then special findings are required by State law. The following discussion provides additional background and analysis of the proposed project, the requested development standards waivers, and the appeal. DISCUSSION Site Information/Setting Table 1: Site Information Zoning C-C-SF (Community Commercial with a Special Focus Overlay) Site Size 1.33 acres (58,076 s.f.) Present Use & Development Vacant building, Black Horse Coffee Shop, two residential structures Topography Slightly sloped Access Chorro Street and Foothill Blvd Surrounding Use/Zoning East: C-R-SF (University Square Shopping Center) South: C-C-SF (Restaurants, Foothill Shopping Center) North: R-4 (Multi-family residential developments) West: C-C-SF (Liquor store) Project Description The project (Attachment D, Project Plans) proposes to construct a new four-story mixed-use project with: • 6,800 square feet of ground floor commercial/retail space; • 78 residential units (21 one-bedroom, 45 two-bedrooms and 12 studios restricted for very- low income households); • 155 parking spaces; and • 181 bicycle parking spaces (161 long-term and 20 short-term). Packet Pg. 143 Item 9 Project Statistics Table 2: Project Statistics Item Proposed 1 Standard 2 Setback Front Yard adjacent to C-C zone 0 feet 0 feet Other Yard adjacent to R-4 zone 5 – 15 feet 5 – 10 feet Max. Height of Structure(s) 43 feet3 35 feet3 Max. Building Coverage (footprint) 90%3 75%3 Density Units (DU) 64.86 DU 65 DU (with 35% density bonus) Parking Spaces Total Vehicle 155 146 Total Bicycle 187 178 Bicycle (long-term) 167 167 Bicycle (short-term) 20 11 Notes: 1. Applicant’s project plans 2. Zoning Regulations (prior to October 19, 2018) 3. Development standard requested to be waived per Gov. Code § 65915(e)(1). Background The applicant initially submitted the project for City review on November 6, 2017. The entitlements for this project are threefold: (1) design review; (2) a use permit for mechanical parking lifts, the expansion of the hours of operation for commercial uses within a mixed -use project, and location within the Foothill Boulevard/Santa Rosa Special Planning Area; and (3) consideration of affordable housing incentives and waiver of development standards. Previous Council or Advisory Body Action • On July 25, 2018 the Planning Commission (PC) reviewed the use permit for a mixed-use project in the Foothill Boulevard/Santa Rosa Special Planning Area, expanded commercial/retail hours of operation, and the use of mechanical parking lifts. The Planning Commission approved the use permit with a vote of 5:1 (Attachment C, PC Resolution). • On July 16, 2018, the ARC reviewed architectural plans for the project that had been revised based on the ARC’s directional items. The ARC determined that the applicant’s revised plans addressed the directional items, with the addition of four new conditions, and approved the project with a vote of 3:2 (Attachment B, ARC Resolution). • On May 7, 2018 the Architectural Review Commission (ARC) reviewed the architectural aspects of the project. The ARC continued the project and provided the applicant with eleven (11) directional items to incorporate within the revised project. Policy Context Land Use Element, Chapter 8: Special Focus Area In December 2014, the City Council adopted the new Land Use and Circulation Elements (LUCE) of the General Plan. As a part of the update, a new section was added to the Land Use Element (LUE) that identified Special Planning Areas. The proposed project is located in the Foothill Boulevard/Santa Rosa Special Planning Area3 (see Figure 1 below), which includes 3 Land Use Element Section 8.2.1. Foothill Boulevard / Santa Rosa Area and Figure 10. Packet Pg. 144 Item 9 Figure 1: Foothill Blvd/Santa Rosa Special Planning Area property on both sides of Foothill Boulevard, approximately between Broad Street and Santa Rosa Street, currently developed as commercial centers that include highway and neighborhood serving commercial uses. The Foothill Boulevard/Santa Rosa Special Planning Area encourages the development of mixed-use projects, adjustments in parking and height requirements and improving intersections along Foothill Boulevard. The text from Policy 8.2.1 of the LUE is reprinted below: 8.2.1. Foothill Boulevard / Santa Rosa Area This area, which includes land on both sides of Foothill Boulevard between Chorro and Santa Rosa, is currently developed as commercial centers that include highway and neighborhood serving commercial uses. At the affected property owners’ request, the boundary of this area on the north side of Foothill may be extended to include one or more of the existing commercial properties west of Chorro Street. The City shall work with property owners / developers to redevelop the area as mixed use (either horizontal or vertical mixed use) to include a mix of uses as described under the Neighborhood Commercial, Community Commercial and Medium High to High Density Residential designations. The non-residential component of the project should include elements that serve the nearby neighborhoods. Examples include: • specialty stores and services • food service • entertainment, and • recreational facilities (except that movie theaters, nightclubs, bars/taverns and restaurants serving alcohol after 11 pm shall be prohibited) As part of this project, the City will evaluate adjustments to parking requirements to account for predominant pedestrian and bike access. Building height adjustments in this area can also be considered with mixed use development. Redevelopment plans shall include consideration of improving the existing complex intersections of Foothill/Chorro/Broad, the desirability of modifying Boysen at and through the property on the northeast corner of the area, and enhancement of pedestrian, bicycle and transit connections across Foothill and Santa Rosa/Highway 1 and to the campus. Among other possible incentives, building height adjustments on the North side of Foothill may be considered with mixed use development. The Fire Station will be maintained or relocated within the area. Packet Pg. 145 Item 9 Housing Element The Housing Element (HE) outlines a series of goals and policies to encourage the development of housing production for all financial strata of the City's population. HE Goal 24 outlines that housing should be in line with the Regional Housing Needs Allocation (RHNA), for the 2014 - 2019 planning period. Table 3 provides the remaining RHNA need based on dwelling units approved, under construction or built through December 31, 2017. The proposed project will contribute twelve (12) very-low income units towards the City’s RHNA total. The HE further states that affordable housing units should be intermixed and not segregated by economic status and encourages housing development that meets a variety of special needs, including large families, single parents, disabled persons, the elderly, students, veterans, the homeless, or those seeking congregate care, group housing, single-room occupancy or co-housing accommodations utilizing universal design (HE Policy 8.1). The Housing Element also states that preference for residential use be given over commercial uses (Policy 11.15). In addition, the Housing Element further states: • That the City should continue to consider increasing residential densities above state density bonus allowances for projects that provide housing for low, very low and extremely low- income households (Policy 2.17); and • That the City should continue to incentivize affordable housing development with density bonuses, parking reductions and other development incentives, including City financial assistance (Program 6.19). Table 3: Housing Element Table 6: Remaining RHNA need based on dwelling units approved, under construction or built (January 1, 2014 to December 31, 2017) Income Category A B A-B New Construction Need (RHNA) Dwelling Units Approved, Under Construction or Built Remaining RHNA Need, Dwelling Units Very Low and Extremely-Low (<31-50% of AMI) 285 96 189 Low (51-80% of AMI) 179 27 152 Moderate (81-120% of AMI) 202 10 192 Above Moderate (>120% of AMI) 478 5901 -112 TOTAL RHNA UNITS 1,144 7231 421 1No credit allowed for the number of above moderate units built that exceed RHNA. 4 Housing Element Goal 2: Accommodate affordable housing production that helps meet the City’s quantified objectives. 5 Housing Element Policy 11.1: Where property is equally suited for commercial or residential uses, give p reference to residential use. Changes in land use designation from residential to non-residential should be discouraged. Packet Pg. 146 Item 9 Major City Goal Housing was determined to be one of the most important, highest priority goals for the City to accomplish over 2015-17 and 2017-19 financial years. This is an ongoing goal to: Implement the Housing Element, facilitating workforce, affordable, supportive and transitional housing options, including support for needed infrastructure within the City’s fair share. State Housing Accountability Act and Density Bonus Law The Housing Accountability Act (“HAA”), codified in Government Code § 65589.5, applies to any “housing development project”, and was amended last year to include “[m]ixed-use developments consisting of residential and nonresidential uses with at lea st two-thirds of the square footage designated for residential use.” Government Code § 65589.5(h)(2)(B6). The proposed project is a mixed-use project where more than two thirds of the project’s square footage is devoted to residential use. As such, if the project complies with all applicable objective standards, then certain findings are required in order for the agency to lawfully (1) deny the project; or (2) reduce or impose conditions which have the effect of reducing the project’s density. In 2017, the State legislature amended the HAA to require that the findings be supported by a preponderance of the evidence in the record and the agency bears the burden of proof. By design, the legislature has crafted the findings to be difficult for agencies to make findings to deny a project. Specifically, in order to deny a HAA project or reduce density, the agency must find that: “[t]he housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density...[and] [t]here is no feasible method to satisfactorily mitigate or avoid the adverse impact…other than disapproval…or the approval…at a lower density” Gov. Code § 65589.5(j)(1)(A)&(B) A “specific, adverse impact” is defined to mean a “significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.” Government Code § 65589.5(j)(1). Accordingly, the City Council may only lawfully deny the project or reduce its density if it determines the project or the additional density causes a specific adverse health or safety impact. Standards such as “compatibility” can be lawfully used to impose design conditions, but cannot be used to deny a housing project or reduce density. The reason is because the standard of compatibility is subjective in nature and not necessarily related to public health and safety and the HAA requires the specific adverse impact be based on objective health and safety standards. Also, even if the City identifies a specific adverse impact, the City has the obligation to prove that “there is no feasible method to satisfactorily mitigate or avoid the adverse impact…other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density.” Government Code § 65589.5(j)(1)(B). It should be noted that the protections in the HAA and the density bonus provisions in the 6 65589.5 (h) (2)(B) Mixed-use developments consisting of residential and nonresidential uses with at least two- thirds of the square footage designated for residential use. Packet Pg. 147 Item 9 Density Bonus Law (“DBL”), discussed below, work in concert with one another. Specifically, Government Code § 65589.5(j)(3) states that: “…the receipt of a density bonus pursuant to Section 65915 shall not constitute a valid basis on which to find a proposed housing development project is inconsistent, not in compliance, or not in conformity, with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision specified in this subdivision.” In other words, the legislature has determined that the benefits afforded by the DBL do not render the protections in the HAA inapplicable. The DBL, codified in Government Code § 65915, mandates that public agencies provide a density bonus and relax development standards through incentives, concessions or waivers if a proposed project includes a prescribed percentage of affordable housing. The level of the density bonus and the number of incentives or concessions is dependent on the amount of affordable housing provided and the level of affordability. A city cannot require a developer to provide a greater percentage of units or deeper level of affordability than prescribed by the statute in order to qualify for the density bonus. See Latinos Unidos del Valle de Napa y Solano v. County of Napa, 217 Cal. App. 4th 1160 (2013). For this project, the base density of the project without a density bonus is 48 density units. The developer is proposing twelve (12) units (12.5% of the base density) to be deed restricted for very low-income households which entitles the developer to a thirty five percent (35%) density bonus (Gov. Code § 69515(f)(2)) and up to three (3) incentives or concessions (Gov. Code § 65915(d)(2)(C). The City must also ensure that the affordable units will remain affordable for 55 years and that the rents will not exceed those permitted by State law (Gov. Code § 65915(c)(1); Condition No. 10 requires that the developer deed restrict these units to very low-income households. On top of this requirement, Gov. Code § 65915(e)(1) mandates that “[i]n no case may a city…apply any development standard that will have the effect of physically precluding the construction of a development meeting the criteria of subdivision (b) at the densities or with the concessions or incentives permitted by this [the DBL].” In other words, the DBL law requires a city to relax its development standards in order for the project to physically incorporate the additional units permitted under the law. Similar to the HAA, there are protections for projects using the DBL. No grounds are provided that would allow a city to deny a density bonus; rather, "a city …shall grant one density bonus…." (Gov. Code § 65925(b)(1); see also Wollmer v. City of Berkeley, 193 Cal. App. 4th 1329, 1330 (2011) ("Wollmer") ("Section 65915 mandates that local governments provide a density bonus…" (emphasis added). Developers can also request modifications of development standards by requesting either incentives/concessions (they are the same) or waivers. Incentives or concessions refer to “regulatory incentives” that provide “identifiable and actual cost reductions” to provide for the affordable housing (Gov. Code § 65915(k)); in other words, they are provided to allow for modifications that result in an actual reduction of costs to the project so the affordable housing is economically feasible. Waivers of development standards are provided under Government Code §§ 65915(e) if the usual development standards would “physically preclude” a development from being constructed with the density bonus requested; a project with a 35% greater density may require modifications of development standards to fit on a site. Necessary waivers may only be Packet Pg. 148 Item 9 denied if the agency can make a finding based on substantial evidence that the waiver is contrary to state or federal law, would have an adverse impact on property listed on the California Historical Register, or would cause a “specific, adverse impact” upon the public health, safety, or the physical environment, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. The definition of “specific, adverse impact” is the same as that in the HAA – i.e. a “significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.” This project includes two waivers of otherwise applicable property development standards – an eight foot (8’) maximum height increase for a portion of the building (the “Height Exception”) and increase in the allowable lot coverage for the site from seventy five percent (75%) to ninety percent (90%) (the “Lot Coverage Exception”). The stated purpose of these modifications is to allow for the physical construction of the additional density units. Under density bonus law, these modifications are properly analyzed as waivers, not incentives. In order to deny these waivers, the City would be required to make the statutory findings based on the standards as discussed and defined above. Again, to use the example noted above, the City cannot simply deny the waivers based on findings that the increase in lot coverage or the height increase is not “compatible” with the neighborhood. Under State law, the City must identify either a violation of state or federal law, an impact on a historic property, or a specific adverse impact on the public health, safety, or the physical environment that is directly caused by the waiver, and determine that there is no feasible way to satisfactorily mitigate it or find an alternative. Analysis of Requested Affordable Housing Waivers of Development Standards As previously indicated, the applicant has requested the Height Exception and the Lot Coverage Exception as both an affordable housing concession (Gov. Code § 65915(d)) and a waiver of development standards (Gov. Code § 65915(e)(1)). No evidence regarding cost reduction or its relation to providing affordable housing has been provided to justify an incentive or concession; rather the modifications are being requested to allow the units with the density bonus to physically fit on the site. Therefore, the more relevant and appropriate application and analysis regarding the Height and the Lot Coverage Exceptions is as a waiver of development standards. In this case, the project is entitled to receive a 35% density bonus, which is approximately one third more units. The ground floor is comprised of parking and retail and the above three floors are residential. Logically, there is a nexus between the need for an additional floor area in order to physically accommodate the approximately one third more residential units. Staff looked at whether a reasonable reduction in each units’ square footage could result in a significant enough reduction to obviate the need for the additional floor area. Table 4 below reflects the level of reduction needed to each unit in order to capture the square footage of the top floor, which is significant. More importantly, architecturally, it would be extremely difficult, if not impossible, to physically layout the additional units in a reasonably useful manner between floors two and three and still maintain all building code requirements. Packet Pg. 149 Item 9 Table 4: Reduction of the two-bedroom units from the proposed 1200 square feet (s.f.) to 700 s.f. Proposed 1200 s.f. 1150 s.f. 1000 s.f. 950 s.f. 900 s.f. 800 s.f. 700 s.f. 2nd Floor1 24,500 23,750 21,500 20,750 20,000 18,500 17,000 3rd Floor1 24,500 23,750 21,500 20,750 20,000 18,500 17,000 4th Floor1 24,500 23,750 21,500 20,750 20,000 18,500 17,000 Total s.f. for the units in the building1 73,500 71,250 64,500 62,250 60,000 55,500 51,000 Difference 2,250 9,000 11,250 13,500 18,000 20,250 1. Calculations assumed each studio is 400 s.f. and each one-bedroom is 700 s.f. Even assuming that the reductions in the units’ square footage could eliminate the need for the top story, under current case law, it is unclear if the City has the discretion to require those reductions or to eliminate project amenities. In the case of Wollmer v. City of Berkeley, 193 Cal. App. 4th 1329 (2011), the Court stated, in pertinent part: Here, the City waived the standards for height, number of stories and setbacks, granting variances to allow an additional story and a higher building height, and to forego setbacks on two corners. What bothers Wollmer is the fact that the waiver of standards for height and setbacks were granted to accommodate certain project “amenities,” namely an interior courtyard, a community plaza and 15– foot ceilings in the commercial space and nine-foot ceilings in the residential units. He contends that the City cannot waive development standards in order to approve a density bonus project unless it specifically finds that the waived standards physically preclude construction of the density-bonus qualifying project, and waivers to accommodate project amenities do not meet this test. …Wollmer's argument goes nowhere. Had the City failed to grant the waiver and variances, such action would have had “the effect of physically precluding the construction of a development” meeting the criteria of the density bonus law. If the project were not built, it goes without saying that housing units for lower- income households would not be built and the purpose of the density bonus law to encourage such development would not be achieved. The trial court properly interpreted the statute, and the City proceeded in the manner required by law in granting the waivers. Based on the physical realities of this project and the potential impacts that have been evaluated, the combination of additional height and lot coverage is the most appropriate method of achieving the project’s density at the amounts allowed by law. If the applicant reduced the lot Packet Pg. 150 Item 9 coverage to the City’s standard, then additional height would likely be needed in order to accommodate the units on floors two, three and four which utilized the additional lot coverage area. Similarly, the parking could be eliminated in order to potentially reduce the overall height, however, then there would certainly be neighborhood concerns associated with that type of concession. Moreover, the Wollmer analysis regarding the City’s ability to compel the elimination of project amenities would also be implicated. It should be noted that the applicant did include certain design features to reduce the total height of the project – for example, multi- story residential projects typically have a “plate-height” of 12 feet; the plate height for this project is 10 feet, thus reducing the project’s total height by 8 feet. Appeal On August 6, 2018, the Foothill Blvd Civic Defense filed an appeal of the Planning Commission’s decision to approve the use permit (Attachment E, Appeal Application & Letter). The ARC’s decision on July 16, 2018 approving the design of the project was not appealed, but the final design approval was contingent on the approval of the use permit and development standard waivers that are the subject of the appeal. All that was appealed is the use approval. The appeal generally argues that: 1. The claimed CEQA exemptions from environmental review do not apply because the Project does not meet the threshold criteria required for the exemptions, and environmental review is required. 2. The project is inconsistent with the Circulation Element and the Conservation and Open Space Element of the General Plan (COSE). 3. The project is also inconsistent with the zoning of the property, which is the C-C-SF (Community Commercial with a Special Focus Overlay) zone. 4. The City cannot bifurcate or divide approval of the housing incentives which result in reduction of site development standards from the rest of the project review. 5. There is no indication that the project requires a density bonus and two housing concessions to provide twelve affordable studios. 6. A new Multi modal Transportation Impact Study is necessary to determine if health and safety would be adversely impacted by the proposed project. 7. The extent of parking demand, occupancy in the mechanical lift system, and potential for traffic and on-street parking demand were not quantitatively analyzed. 8. Affordable Housing Units. The proportion and one type of low-income affordable units in the project does not meet the intent of Housing Element Policy 4.2. A supplement was filed on December 28, 2018 to the appeal which generally argues that: 1. CEQA requires that an exemption cannot be granted if the project violates any general plan policy. We claim that the project violates the COSE and Circulation element policies on views, and therefore it cannot be exempt from environmental review. Packet Pg. 151 Item 9 Staff Analysis Staff has provided an analysis below of the points outlined in the Appeal Letter. 1. The claimed CEQA exemptions from environmental review do not apply because the Project does not meet the threshold criteria required for the exemptions, and environmental review is required. An infill project is exempt from CEQA when it (a) is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations; (b) occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses; (c) has no value as habitat for endangered, rare or threatened species; (d) does not result in any significant effects relating to traffic, noise, air quality, or water quality; and (e) The site can be adequately served by all required utilities and public services. The appellants’ primary contention is that the project is inconsistent with various viewshed protection policies in the City’s General Plan Conservation and Open Space Element (“COSE”). Some of the relevant viewshed policies are contained in Section 9 of the COSE, starting on page 6-58 and include the following: 9.1.5. View protection in new development. The City will include in all environmental review and carefully consider effects of new development, streets and road construction on views and visual quality by applying the Community Design Guidelines, height restrictions, hillside standards, Historical Preservation Program Guidelines and the California Environmental Quality Act and Guidelines. 9.2.1. Views to and from public places, including scenic roadways. The City will preserve and improve views of important scenic resources from public places, and encourage other agencies with jurisdiction to do so. Public places include parks, plazas, the grounds of civic buildings, streets and roads, and publicly accessible open space. In particular, the route segments shown in Figure 11 are designated as scenic roadways. A. Development projects shall not wall off scenic roadways and block views. *** D. Development projects, including signs, in the viewshed of a scenic roadway shall be considered “sensitive” and require architectural review. A project is consistent with the general plan if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment. Perfect conformity is not required, but the project must be compatible with the General Plan’s objectives and policies. As a general matter of statutory construction, more specific policies or zoning provisions will prevail over more general provisions and the General Plan must be read and its provisions harmonized in that context. Packet Pg. 152 Item 9 As previously mentioned, the City’s Housing Element (“HE”) and Land Use Element (“LUE”) contain other policies relating to the production of housing. In particular, the updated LUE includes specific policies for the “Foothill Boulevard/ Santa Rosa Area” Special Focus Area which specifically states: “Among other possible incentives, building height adjustments on the North side of Foothill may be considered with mixed use development.” From a General Plan consistency analysis, California Government Code Section 65300.5 states that “…the general plan and elements and parts thereof comprise an integrated, internally consistent and compatible statement of policies for the adopting agency.” Accordingly, these policies reflect how view protection along streets and infill housing can be consistent with one another as required by the Government Code. In other words, the LUE specifically identifies certain areas which are appropriate for more intensive infill development. The precise location of these areas was developed based on a variety of factors and policies which are reflected in the General Plan, which must be read to be consistent with one another. It would be inconsistent with Land Use and Planning Law to identify a site as appropriate for increased height, if the determination that increased height on the site was inconsistent with other policies. In fact, the underlying EIR for the LUE update in 2014 stated that development under the new LUE policies had the potential to impact the existing visual character, but stated that such impacts were considered Class III, less than significant: By definition, the special focus areas were considered in greater detail than more general land use designation areas. That analysis was conducted in the broader context of broader general plan policies and programs; the area at issue here was specifically determined to be appropriate for increased density and height to accommodate housing. Even if that were not the case, legislation enacted in 2017 (AB 678, SB 167 and AB 1515) amended certain provisions of the HAA, which now provides little deference to local government findings that a project is inconsistent with the General Plan. Specifically, Gov. Code § 65589.5(f)(4) states that “…a housing development project…shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project…is consistent, compliant, or in conformity.” As a consequence of this change, to support a finding of inconsistency with the general plan, there would need to be an absence of credible evidence in the record (whether provided by the City or the developer) that the project is consistent with the plan. In this case, the Planning Commission’s findings of consistency, the analysis of the special focus area and the specific housing policies applicable to the area all provide substantial evidence that the project is consistent with the general plan when read as an integrated whole and harmonized in the context of the most specifically applicable provisions. Packet Pg. 153 Item 9 2. The project is inconsistent with the Circulation Element and the Conservation and Open Space Element of the General Plan (COSE). See analysis under section 1 above. 3. The project is also inconsistent with the zoning of the property, which is the C-C-SF (Community Commercial with a Special Focus Overlay) zone. The Zoning Regulations (2015) provide a matrix (Table 9) of the allowed uses within each of the zones that cover the City. Table 9 identifies that “Mixed-Use” projects are allowed by right in the Community Commercial (C-C) zone. Section 17.08.072.B states that “a mixed use project requires a combination of residential units with any other use, or combination of uses allowed in the applicable zoning district…” Additionally the General Plan’s description of the Foothill Boulevard/Santa Rosa Special Planning Area states the “the City shall work with property owners/developers to redevelop the area as mixed use (either horizontal or vertical mixed use) to include a mix of uses as described under the Neighborhood Commercial, Community Commercial and Medium High to High Density Residential designations.” The project located at 790 Foothill is consistent with the zoning of the property because it provides residential units and 6,800 square feet of ground floor commercial/retail space. The appellants also assert that the project is inconsistent with the zoning, and hence not eligible for the Class 32 categorical exemption provided under CEQA, because the density bonus and waivers are not consistent with the zoning. This exact issue was considered in Wollmer, and the Court of Appeal concluded that, to harmonize density bonus law and CEQA, projects receiving density bonuses and waivers consistent with State density bonus law were consistent with zoning and hence qualified for the categorical exemption. (193 Cal. App. 4th at 1347-50.) 4. The City cannot bifurcate or divide approval of the housing incentives which result in reduction of site development standards from the rest of the project review. Because the project was deemed complete prior to the City’s Zoning Code update, the City’s prior Zoning Code establishes the applicable rules and regulations for the project. Former Chapter 17.90 established the City’s Affordable Housing Incentive regulations in response to the State’s enactment of the DBL. Since 1995, the DBL has been amended on numerous occasions. Some provisions in former Chapter 17.907 are valid and some have been superseded by amendments to the Government Code. Section 17.90.060 of the prior code establishes the procedure for the City to review incentives or concessions. Subsection A requires City Council approval of concessions and incentives which is the process the City is using for this project, including approval of waivers, which were not mentioned in the prior ordinance. Subsection B requires the applicant to provide “…an estimate of the incentive’s financial value in comparison with the financial value of the density bonus allowed in Section 17.90.030, as well as the basis for the comparison estimate.” Appellants suggest that the City should have required the applicant to provide a pro forma and that information should have been provided to the ARC and the PC for their consideration. This contention is incorrect for several reasons. First, no economic analysis is required to justify a density bonus, as discussed above. Second, the modifications 7 See Attachment G for the 2015 Zoning Code requirements for Affordable Housing Incentives. Packet Pg. 154 Item 9 were requested by the applicant as either incentives/concession or a waiver and are most appropriately analyzed as a waiver of development standards as outlined above. The analysis regarding a waiver of development standards has no financial component to it and there is no such requirement under prior zoning or under state law. 5. There is no indication that the project requires a density bonus and two housing concessions to provide twelve affordable studios. As discussed above, the DBL requires cities to provide a density bonus and grant waivers if a housing project provides a certain level of deed restricted affordable housing and requires waivers to construct the project with the density bonus. The statute mandates that the City provide the density bonus. Careful evaluation of the project has found that the project requires the requested waivers and has not identified any violations of state or federal law, any adverse impacts on properties listed on the California Register, or any specific adverse impacts with respect to the waiver of development standards that would justify denial of the waiver. There is no economic requirement to the request for either the density bonus or the waiver. It should be noted that subsection (r) of the DBL states that the provisions of the DBL “…shall be interpreted liberally in favor of producing the maximum number of total housing units.” Section 5 of the appeal further contends that staff incorrectly guided the ARC and the PC by insisting that the proposed density of the project cannot be lowered. The staff reports, memos and advice at each of the hearings clearly articulate the protections imposed by the HAA and the DBL and the findings which are needed in order to reduce the project’s density or impose conditions which have the effect of reducing the project’s density. No “specific adverse impact” on public health and safety, as defined in the statutes, has been identified. Packet Pg. 155 Item 9 6. A new Multi Modal Transportation Impact Study is necessary to determine if health and safety would be adversely impacted by the proposed project. a) The appellant claims that the 2016 volumes used in the traffic impact study are too old and that 2018 volumes should be significantly higher due to a variety of factors. This is not valid for the following reasons. 2018 data was not available at the time of the traffic study, but has since been collected. As shown in Figure 2 below, volumes on Foothill have not changed dramatically since 2010. Rather, Foothill traffic volumes recorded in 2018 are approximately 2% lower than 2016. Traffic counts are taken every two years on a fair-weather weekday, during regular CalPoly, Cuesta, and San Luis Unified School District session. The claim that the traffic study did not take the 22 Chorro project into consideration is also not valid. The conclusions and recommendations of the traffic study were based on “worst-case” forecasted future buildout of the City assuming full occupancy of all land uses contemplated in the City’s General Plan (including 22 Chorro and the Foothill Plaza Shopping Center), as well as CalPoly’s Current Master Plan. b) The appeal states that the combined trip generation of this project with the 22 Chorro and 71 Palomar projects are enough to trigger a traffic impact study. This claim is moot as two traffic impact studies were indeed conducted, one specific to the 790 Foothill Project and one for the General Plan EIR which contemplated 275 new, high-density residential units in the Special Planning Area. If approved, the total unit count of 790 Foothill and 22 Chorro would be 105 units. Figure 2: Foothill daily traffic volumes from 2010 to 2018 Packet Pg. 156 Item 9 c) The appeal letter states that the trip generation rate used in the traffic study, General Multifamily, is not accurate and is lower than trip generation rates for student housing. This is not valid for the following reasons. As shown Figure 3 below the General Multifamily trip rate used in the traffic study yields the same estimated trips as the Institute of Traffic Engineers “Off-Campus University Housing” trip rates and is more conservative (i.e., assumes more trips) than actual rates recorded from 22 Chorro, Mustang Village, and SLO LIFE apartments based on the number of bedrooms occupied at the time counts were taken. Because the project is not restricted to student housing the traffic study used the more conservative trip rate. d) Foothill has been identified as a high collision rate location and the appeal states that therefore a Transportation Impact Study is warranted. Two traffic impact studies were conducted, one specific to the 790 Foothill Project and one for the General Plan EIR. Study of the project identified geometric issues associated with earlier versions of the project and how the project interfaces with the Foothill Chorro/Broad Traffic Signal. As a result of these studies, the project’s access points were redesigned, the project was conditioned to upgrade the signal configuration at Foothill Chorro/Broad, and the project was conditioned to upgrade pedestrian crossing to include high visibility treatments to mitigate the range of potential safety issues that have been identified. Public improvement plans will need to be developed to the satisfaction of the Public Works Director to address the need to make high visibility treatments to address the range of potential safety issues, consistent with applicable traffic safety requirements. The Council has recently adopted the Bishop Peak & Pacheco Elementary School Safe Routes to school plan which includes the installation of bike lane extensions and green lanes under project #4 of that plan. This improvement was subsequently adopted into the City AB1600 Transportation Impact Fee Program under Projects #36 & #37. Therefore, staff is recommending that the project be conditioned (Condition No. 13) to implement these planned improvements along their project frontage, which are eligible for impact Figure 3: Comparison of PM Peak Trip Rates for the proposed project at 790 Foothill and similar type residential units. Rates account for occupancy level. Packet Pg. 157 Item 9 fee credits up to the amount collected through the fee program. The appeal also discusses that the project is not fulfilling the General Plan requirement for Redevelopment of University Square to conduct a circulation assessment for Boysen & Santa Rosa, Foothill & Chorro, and Foothill & Broad. The proposed project is not located on the property that includes University Square shopping center and, therefore, is not required to fulfill the requirements for redevelopment of that separate property. e) The appeal states that the LOS score implausibly remains the same for both Cumulative & the Cumulative Plus project for the Foothill & Chorro Intersection. This claim is unsubstantiated, the level of service score is an industry standard mathematical calculation established in the Transportation Research Board’s Highway Capacity Manual. The calculation is provided in the body of the Traffic Impact Study Report and was checked for accuracy. f) The planned extent of cumulative building in the Foothill Special Focus Area is provided for in the City’s General Plan and is assumed in the Transportation Impact Study for this Project. The combination of 22 Chorro & 790 Foothill represents approximately 40% of the planned residential buildout for this special planning area. Its anticipated that most of the remaining residential growth anticipated will occur with future redevelopment of University Square. g) The collision patterns identified by the Traffic Impact Study & Citywide Traffic Safety Report are consistent with comments received by residents. To address these safety issues, the project’s access points were redesigned, the project was conditioned to upgrade the signal configuration at Foothill Chorro/Broad, and the project was conditioned to upgrade pedestrian crossing to include high visibility treatments to mitigate the range of potential safety issues that have been identified, consistent with applicable traffic safety standards. 7. The extent of parking demand, occupancy in the mechanical lift system, and potential for traffic and on-street parking demand were not quantitatively analyzed. a – h) The project provides more parking on-site than is required under City code with standards designed to address parking impacts, although the project is eligible for parking reductions, none are being requested. Also, the project has been conditioned to not charge residents separately for parking so that there is not a monetary benefit to residents and visitors for parking free on the street as opposed to parking on-site at an additional cost. i) The mechanical parking lifts are required to comply with all building and safety code requirements. Some oversized vehicles may not fit within the parking lift, however there are many parking spaces that are not part of a lift system that can accommodate those vehicles as well as required ADA accessible parking spaces. The project has incorporated a loading zone pullout along the Foothill frontage to accommodate trash collection, landscapers, maintenance & cleaning personnel, and commercial deliveries. Packet Pg. 158 Item 9 8. Affordable Housing Units. The proportion and one type of low-income affordable units in the project does not meet the intent of Housing Element Policy 4.2. As identified in the appeal letter, Housing Element (HE) Policy 4.2 states, “Include both market- rate and affordable units in apartment and residential condominium projects and intermix the types of units. Affordable units should be comparable in size, appearance and basic quality to market-rate units.” The HE further states that affordable housing units should be intermixed and not segregated by economic status and “encourages housing development that meets a variety of special needs, including large families, single parents, disabled persons, the elderly, students, veterans, the homeless, or those seeking congregate care, group housing, single-room occupancy or co-housing accommodations, utilizing universal design” (HE Policy 8.1). The project is proposing to construct 78 residential rental units composed of studios, one- bedrooms and two-bedrooms. Twelve of the studio units will be deed restricted for very-low income households, which are some of the more challenging units to be provided within a private development. As designed, the project provides a range of unit sizes and affordability that are intermixed with one another throughout the project and the affordable units will similar amenities to the market rate units. Additionally, the twelve, deed restricted, affordable studio units help fulfill the remaining 189 very low or extremely low affordable units still needed to meet the City’s RHNA goals for the 2014-2019 period, consistent with HE Policies 2.3 and 2.4.8 These extremely low and very low units are some of the hardest units to include in residential projects and provide housing for similar households as would be found in the overall project. As proposed, the inclusion of twelve affordable studio units is consistent with the Housing Element. Public Engagement Consistent with the City’s Public Engagement and Noticing (PEN) Manual and the City’s Municipal Code, the project was noticed per the City’s notification requirements for Development Projects. Newspaper legal advertisements were posted in the Tribune 10 days prior to each advisory body meeting (Architectural Review, Planning Commission, and City Council). Additionally, postcards were sent to both tenants and owners of properties located within 300 feet of the project site 10 days before each advisory body hearing. Public comment was provided to the advisory bodies through written correspondence and through public testimony at each of the hearings. CONCURRENCE Staff comments provided during review of the proposed project and appeal are incorporated into the presented evaluation and conditions of approval. 8 Housing Element Policy 2.3: For housing to qualify as “affordable” under the provisions of this Element, guarantees must be presented that ownership or rental housing units will remain affordable for the longest period allowed by State law, or for a shorter period under an equity-sharing or housing rehabilitation agreement with the City. Housing Element Policy 2.4: Encourage housing production for all financial strata of the City's population, in the proportions shown in the Regional Housing Needs Allocation, for the 2014 - 2019 planning period. These proportions are: extremely low income, 12 percent, very low income, 12 percent; low income, 16 percent; moderate income, 18 percent; and above moderate income, 42 percent. Packet Pg. 159 Item 9 ENVIRONMENTAL REVIEW The project categorically exempt under Class 32, In-Fill Development Projects, Section 15332 of the CEQA Guidelines, because the project is consistent with General Plan policies for the land use designation and is consistent with the applicable zoning designation and regulations. It should be noted that modifications to zoning regulations as required by State Density Bonus law, do not disqualify a project from claiming this exemption. See Wollmer v. City of Berkeley, 193 Cal. App. 4th 1329, 1338 (2011). The project site occurs on a property of no more than five acres substantially surrounded by urban uses that has no value as habitat for endangered, rare or threatened species as the site is located on an existing developed property and is served by required utilities and public services. FISCAL IMPACT Budgeted: Yes Budget Year: N/A Funding Identified: No Fiscal Analysis: Funding Sources Current FY Cost Annualized On-going Cost Total Project Cost General Fund N/A State Federal Fees Other: Total Per policy, Development Services fees are based on 100% cost recovery. However, during the 2016 Fee Study the Council approved a 25% cost recovery for Appeals. The average estimated labor cost for a Tier 1 Appeal is $3,116, and the current fee for non-applicants is $640. When the General Plan was prepared, it was accompanied by a fiscal impact analysis, which found that overall the General Plan was fiscally balanced. Accordingly, since the proposed project is consistent with the General Plan, it has a neutral fiscal impact. There is no fiscal impact associated with the approval of this project. Packet Pg. 160 Item 9 ALTERNATIVES 1. Uphold the appeal, thereby denying the project. The Council can deny the project based on findings of inconsistency with California State Law, the City’s General Plan, Zoning Regulations, and other applicable City regulations. Should Council want to pursue this alternative, Staff recommends that specific information be provided in order for Staff to return with findings to support Council direction. 2. Continue consideration of the appeal to a future date. The Council can continue review of the appeal to a future meeting. If this alternative if taken, the Council should provide direction to staff regarding additional information needed to make a decision. Attachments: a - Draft Resolution b - ARC Resolution (ARC-1013-2018) c - PC Resolution (PC-1013-18) d - Project Plans e - Appeal Application & Letter f - Gov. Code Section 65915 g - 2015 Zoning Regulations Chapter 17.90 Packet Pg. 161 Item 9 R ______ RESOLUTION NO. __________ (2019 SERIES) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA, DENYING AN APPEAL (FILED BY FOOTHILL BLVD CIVIL DEFENSE) APPROVING A DENSITY BONUS AND WAIVERS OF DEVELOPMENT STANDARDS, AND THE USE PERMIT APPROVAL FOR A NEW FOUR-STORY MIXED-USE PROJECT WITH 6,800 SQUARE FEET OF GROUND FLOOR COMMERCIAL/RETAIL SPACE, 78 RESIDENTIAL UNITS, AND 155 PARKING SPACES WITH A REQUEST FOR MECHANICAL PARKING LIFTS AND EXPANDED HOURS OF OPERATION FOR THE COMMERCIAL SPACES WITH A CATEGORICAL EXEMPTION FROM ENVIRONMENTAL REVIEW, AS REPRESENTED IN THE CITY COUNCIL AGENDA REPORT AND ATTACHMENTS DATED JANUARY 15, 2019 (790 FOOTHILL BLVD., APPL-1971-2018) WHEREAS, the Architectural Review Commission of the City of San Luis Obispo conducted a public hearing in the Council Hearing Room of City Hall, 990 Palm Street, San Luis Obispo, California, on July 16, 2018, with a three-two vote approving the design of the project, subject to the findings and conditions of ARC Resolution No. ARC-1013-2018 pursuant to a proceeding instituted under ARCH-1186-2017, LR Development Group, applicant; and WHEREAS, the Planning Commission of the City of San Luis Obispo conducted a public hearing in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo, California, on July 25, 2018, with a five-one vote approving the use permit for the project for a mixed-use project in the Foothill Boulevard I Santa Rosa Special Planning Area, an extension of the commercial/retail hours and the use of mechanical parking lifts, subject to the findings and conditions of PC Resolution No. PC-1013-18 pursuant to a proceeding instituted under USE- 1187-2017, LR Development Group, applicant; and WHEREAS, on August 6, 2018, Foothill Blvd Civic Defense, the appellants, filed an appeal of the Planning Commission’s action on July 25, 2018; and WHEREAS, the City Council of the City of San Luis Obispo conducted a public hearing in the Council Chambers of City Hall, 990 Palm Street, San Luis Obispo, California, on January 15, 2019, pursuant to a proceeding instituted under APPL-1971-2018, Foothill Blvd Civic Defense, the appellants; and WHEREAS, notices of said public hearing were made at the time and in the manner required by law; and WHEREAS, the City Council has duly considered all evidence, including the testimony of the applicant, interested parties, and the evaluation and recommendations by staff, presented at said hearing, and Packet Pg. 162 Item 9 Resolution No. ______________ (2019 Series) Page 2 R ______ NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San Luis Obispo as follows: SECTION 1. Findings. Based upon all the evidence, the City Council makes the following findings to deny the appeal (APPL-1971-2018) of the Planning Commission decision and approving a density bonus per Government Code sections 65915(b), (f)(2) and a waiving modifications of development standards per Government Code section 65915(e)(1), thereby granting final approval to the project (USE-1187-2017): 1. That the project will not be detrimental to the health, safety, and welfare of persons living or working at the site or in the vicinity. 2. As proposed, the project is consistent with the Foothill Boulevard / Santa Rosa Special Planning Area of the Land Use Element (Policy 8.2.1) and Zoning Regulations because the project includes a vertical mixed-use project with commercial space of the first floor and high density residential on the upper floors. 3. That per Government Code § 65300.5, the General Plan and elements thereof comprise an integrated, internally consistent and compatible statement of policies and that this project is consistent with those policies, including Conservation and Open Space Policies 9.1.5 and 9.2.1 regarding view protection and Housing Element Policy 8.2.1 establishing the Foothill Boulevard/Santa Rosa Area Special Focus Area in that, overall view protection through the Foothill corridor is achieved through denser development in certain infill sites. 4. As proposed the project is consistent with Housing Element Polices 8.1 and 11.1 because the project encourages the development of housing production for all financial strata of the City's population, intermixes and does not segregate by economic status and encourages housing development that meets a variety of housing needs. 5. The project is consistent with Land Use Element Policy 2.3.6 “Housing and Businesses” and 3.8.5 (Mixed Uses) because the project provides residential dwellings within a commercial district near neighborhood commercial centers, major activity nodes and transit opportunities. Housing at this location is compatible with proposed and existing commercial and residential uses on adjacent properties. 6. The project is consistent with Zoning Regulations Section 17.08.072.F(2) and Table 9 because: i. Community Commercial (C-C) zone allows mixed-use projects; ii. The project’s design protects public health, safety, and welfare; and iii. The mixed-use project provides greater public benefits than a single-use development of the site because it provides needed housing, it is located along a major transit, bike, and pedestrian corridor, and is in close proximity of workplaces, schools, health facilities, and services. Packet Pg. 163 Item 9 Resolution No. ______________ (2019 Series) Page 3 R ______ 7. As conditioned, the proposed mechanical parking lifts are consistent with Zoning regulations Section 17.16.060(D) because: i. The use of mechanical lift parking results in a superior design and implements City goals and policies for infill development by providing the required parking; ii. The lifts are adequately screened; iii. Mechanical lift parking systems complies with all development standards including but not limited to height and setback requirements, and Parking and Driveway Standards and provides spaces for vehicles that do not fit in the lifts; iv. As conditioned, the mechanical parking systems will be safely operated and maintained in continual operation with the exception of limited periods of maintenance; and v. There are no circumstances of the development or model of mechanical lift system which could result in significant impacts to those living or working on the site or in the vicinity. 8. The project is consistent with the Conservation and Open Space Element policy 4.4.3 because the project promotes higher-density, compact housing in limited areas to achieve more efficient use of public facilities and services and to improve the jobs/housing balance. 9. Commercial and retail uses on site will not negatively impact the residential uses in the development because the proposed commercial activity is consistent with adjacent businesses that have similar hours of operation, consistent with the Land Use Element Policy 8.2.1, and the businesses must adhere to the City’s Noise Ordinance. 10. The proposed extended hours of operation are consistent with Land Use Element Policy 8.2.1 because the project will provide services that serve the residences of the project and the nearby neighborhoods. 11. As conditioned, the proposed uses on site will not negatively impact the residential uses in the development because the proposed commercial activity will be limited to hours of operation consistent with specific thresholds established within the Noise Ordinance for noise-sensitive uses, noise levels created by the uses during business hours will be within allowable limits as described in the Municipal Code. 12. The waiver of development standards, namely, a 43-foot tall structure where 35 feet is normally allowed and an increase in allowable lot coverage from 75% to 90% are required in order to physically allow the construction of the project at the density allowed for this project under the Density Bonus Law. SECTION 2. Environmental Review. The City Council hereby determines that the project is categorically exempt under Class 32, In-Fill Development Projects, Section 15332 of the CEQA Guidelines, because the project is consistent with General Plan policies for the land use designation and is consistent with the applicable zoning designation and regulations. Specifically, the project site is located in the Foothill Boulevard/Santa Rosa Special Planning Area, as described in Section 8.2.1 of the City’s General Plan Land Use and Circulation Element (“LUCE”), and complies with the guidelines and objectives applicable to the project site as a result of its inclusion within the Packet Pg. 164 Item 9 Resolution No. ______________ (2019 Series) Page 4 R ______ Special Planning Area. Furthermore, the project-site is zoned C-C-SF (Community Commercial), a designation that permits high-density, mixed-use residential and commercial development, such as the project. After applying the density bonus provided for under California Government Code Section 65915 (discussed below), the project complies with all density limitations in the C-C-SF zone. Pursuant to California Government Code Section 65915, the project proponent has requested waivers of certain development standards, i.e. to exceed the height limit in the C-C-SF zone by 8 feet, and to exceed the maximum lot coverage by 15%. California Government Code Section 65915(e)(1) prohibits an agency from applying any development standard that will have the effect of physically precluding the construction of the residential units at the densities authorized by California Government Code Section 65915, and Section 8.2.1 of the Land Use Element specifically refers to such waivers as being a desirable mechanism for facilitating redevelopment of the area. Pursuant to Wollmer v. City of Berkeley, 193 Cal. App. 4th 1329, 1338 (2011), inclusion of the waivers to height and lot coverage requirements does not make the project inconsistent with applicable general plan policies and zoning regulations. The project site occurs on a property of no more than five acres. In fact, the project site is approximately 1.34 acres large and the site is surrounded on all sides by urban uses, including high density residential and commercial uses. The site is substantially surrounded by urban uses that has no value as habitat for endangered, rare or threatened species as the site is located on an existing developed property and is served by required utilities and public services. Approval of the project would not result in any significant impacts relating to traffic, noise, air quality or water quality. With respect to traffic, a study was conducted confirming that the project will have no significant effects. A copy of that study is available for review at the City of San Luis Obispo via the Lead Agency Contact Person. The project will be compatible with the existing urban environment and high-density residential and commercial surrounding uses and thus will not present any noise issues. The project will follow all applicable air and water quality regulations. Accordingly, there is no evidence that the project will result in any significant effects r elated to noise, air quality, or water quality. In accordance with the Berkeley Hillside Preservation v. the City of Berkeley, 60 Cal.4th 1086 (2015) case, there are no unusual circumstances surrounding the project which would otherwise except the project from the infill exemption. The project site is surrounded on all sides by urban uses, including high density residential and commercial uses. SECTION 3. Action. Based on the foregoing findings and evidence in the record, the City Council does hereby deny the appeal of the Planning Commission’s action to approve the design of the proposed project and hereby approves the density bonus per Government Code sections 65915(b), (f)(2) and the waivers of development standards per Government Code 65915(e)(1), thereby granting final approval of the application APPL-1971-2018 for a mixed-use project in the Foothill Boulevard / Santa Rosa Special Planning Area, an extension of the commercial/retail hours of operation and the use of mechanical parking lifts for the proposed project at 790 Foothill Blvd subject to the following conditions: Packet Pg. 165 Item 9 Resolution No. ______________ (2019 Series) Page 5 R ______ 1. The proposed use shall operate consistent with the project description, approved plans, and other supporting documentation submitted with this application unless otherwise conditioned herein. 2. Hours of operation for the commercial component of the project shall be limited to 7:00 AM to 10:00 PM, unless otherwise approved by the Community Development Director through a separate application for extended hours for specific businesses. 3. Prior to building plan approval, the applicant shall record an agreement in a form subject to the approval of the City Attorney that runs with the land that mechanical parking systems will be safely operated and maintained in continual operation with the exception of limited periods of maintenance. 4. All regular (non-mechanical lift) parking spaces shall be available for residential tenants, employees and customers free from restrictions. No regular parking spaces shall be individually labeled or allocated. 5. All mechanical lift parking spaces shall be available for all residential tenants, included in each tenant’s lease agreement without additional rent or consideration, and free from restrictions, unless otherwise specified in a trip reduction plan. 6. The property owner shall prepare a trip reduction plan, prior to building permit approval, to include a monitoring program to evaluate the use of parking by the commercial tenants, car ownership by residents, overall project parking demand, and the use of lifts as approved to the satisfaction of the Community Development Director and Public Works Director. 7. The proposed structure shall not exceed 43 feet in height and 90% lot coverage (AFFH-1518- 2018). 8. Prior to issuance of a building permit, the applicant shall pay 100% of the total estimated cost of a new 60-foot radio tower located at Fire Station No. 2 or other designated site and, if needed, replacement of any antenna and appurtenances (the “tower project”). The applicant shall be responsible if the actual costs of construction of the tower project is greater than any estimate. Building permits and/or certificates of occupancy may be withheld for lack of timely payment. 9. Prior to excavation, grading operators will be informed of the previous gas station remediation work completed. During excavation, should operators encounter any hazardous spills or 'stains' not previously remediated, work will stop in the immediate area. The following agencies shall be contacted immediately to determine the appropriate course of action: City of San Luis Obispo, County Environmental Health Division (CUPA contact). Work may resume only upon the written approval of the appropriate regulatory agencies. 10. Prior to issuance of a building permit, the applicant shall record a deed restriction, in a form subject to the approval of the City Attorney, ensuring that 12 studios in the project are only rented to very-low income households for a period of 55 years. Packet Pg. 166 Item 9 Resolution No. ______________ (2019 Series) Page 6 R ______ 11. The project shall substantially comply with conditions established under Architectural Review Commission Resolution No. ARC-1013-2018 (Application No. ARCH-1186-2017). 12. The project shall limit the maximum number of occupants to 2 people in a studio and in a one bedroom and no more than 4 people in a 2-bedroom unit. 13. The proposed project shall implement Project #4 of the Bishop Peak & Pacheco Elementary Safe Routes to School Plan at the intersection Foothill & Broad/Chorro, Installing Bike Lane Extensions and green bike lane/turn box treatments thru the Foothill & Broad/Chorro Intersection approaches/departures. This project is included in the Citywide Transportation Impact Fee Program under Projects #38 & #39 and is there for eligible for Transportation Impact Fee crediting up to the amount being collected through the fee program. 14. The applicant shall defend, indemnify, and hold harmless the City and/or its agents, officers, and employees from any claim, action, or proceeding against the City and/or its agents, officers, or employees to attack, set aside, void, or annul the approval by the City of this project, and all actions relating thereto, including but not limited to environmental review (“Indemnified Claims”). The City shall promptly notify the applicant of any Indemnified Claim upon being presented with the Indemnified Claim, and City shall fully cooperate in the defense against an Indemnified Claim. Upon Motion of ___________, seconded by _____________, and on the following roll call vote: AYES: NOES: ABSENT: The foregoing resolution was passed and adopted this 15th day of January 2019. ______________________________ Mayor Heidi Harmon ATTEST: ______________________________________ Teresa Purrington City Clerk Packet Pg. 167 Item 9 Resolution No. ______________ (2019 Series) Page 7 R ______ APPROVED AS TO FORM ________________________________________ J. Christine Dietrick City Attorney IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Luis Obispo, California, this _______day or ______________, _________. ______________________________ Teresa Purrington City Clerk Packet Pg. 168 Item 9 RESOLUTION NO. ARC-1013-2018 A RESOLUTION OF THE SAN LUIS OBISPO ARCHITECTURAL REVIEW COMMISSION APPROVING A NEW FOUR-STORY MIXED- USE PROJECT WITH 6,800 SQUARE FEET OF GROUND FLOOR COMMERCIAL/RETAIL SPACE, 78 RESIDENTIAL UNITS, AND 155 PARKING SPACES. THE PROJECT IS CATEGORICALLY EXEMPT UNDER CLASS 32, IN-FILL DEVELOPMENT PROJECTS, SECTION 15332 OF THE CEQA GUIDELINES., AS REPRESENTED IN THE STAFF REPORT AND ATTACHMENTS DATED JULY 16, 2018, 790 FOOTHILL BLVD (ARCH-1186-2017) WHEREAS, the Architectural Review Commission of the City of San Luis Obispo conducted a public hearing in the Council Chambers of City Hall, 990 Palm Street, San Luis Obispo, California, on July 16, 2018, pursuant to a proceeding instituted under ARCH-1186-2017, LR Development Group, applicant; and WHEREAS, the Architectural Review Commission of the City of San Luis Obispo has duly considered all evidence, including the testimony of the applicant, interested parties, and evaluation and recommendations by staff, presented at said hearing. WHEREAS, notices of said public hearing were made at the time and in the manner required by law; and NOW, THEREFORE, BE IT RESOLVED by the Architectural Review Commission of the City of San Luis Obispo as follows: SECTION 1. Findings. The Architectural Review Commission hereby approves the project design (ARCH-1186-2017), based on the following findings: 1. The project design maintains consistency with the City's Community Design Guidelines by providing architectural design that complements the architectural character of the surrounding neighborhood and is consistent with Land Use Element Policy 8.6 the Foothill Boulevard/Santa Rosa Special Focus Area of the Land Use Element. 2. The project is consistent with the City's Community Design Guidelines because the proposed project incorporates similar materials and architectural features to the surrounding neighborhood and provides a complementary color scheme. 3. The mechanical lift parking is consistent with the Community Design Guidelines because the lifts are adequately screened and compatible with the building and site design of the proposed project. SECTION 2. Environmental Review . The Architectural Review Commission hereby determines that approval of the design of the project is categorically exempt from environmental review under the California Environmental Quality Act because the project is a Class 32 "In-Fill Packet Pg. 169 Item 9 Resolution No . ARC-1013-2018 790 Foothill Blvd., ARCH-1186 -2017 Page 2 Development Project" within the meaning of Section 15332 of the CEQA Guidelines. The design of the project is consistent with General Plan policies for the land use designation and is consistent with the applicable zoning designation and regulations. The project site occurs on a property of no more than five acres substantially surrounded by urban uses that has no value as habitat for endangered, rare or threatened species as the site is located on an existing developed property and is served by required utilities and public services. SECTION 3. Action. The Architectural Review Commission (ARC) hereby approves the project design subject to the following conditions of approval: Planning-Community Development Department 1. Final project design and construction drawings submitted for a building permit shall be in substantial compliance with the project plans approved by the ARC. A separate, full-size sheet shall be included in working drawings submitted for a building permit that lists all conditions of project approvals listed as sheet number 2. 2. Reference shall be made in the margin oflisted items as to where in plans requirements are addressed. Any change to approved design, colors, materials, landscaping, or other conditions of approval must be approved by the Director or Architectural Review Commission, as deemed appropriate. 3. Plans submitted for a building permit shall call out the colors and materials of all proposed building surfaces and other improvements. Colors and materials shall be consistent with the color and material board submitted with Architectural Review application. 4. The locations of all lighting, including bollard style landscaping or path/parking lighting, shall be included ·in plans submitted for a building permit. All wall-mounted lighting fixtures shall be clearly called out on building elevations included as part of working drawings. Any wall mounted lighting installed above the first floor on the exterior elevations shall be minimal and consider its impact on the surrounding neighborhood. All wall-mounted lighting shall complement building architecture, subject to the approval of the Community Development Director. The lighting schedule for the building shall include a graphic representation of the proposed lighting fixtures and cut-sheets on the submitted building plans . The selected fixture(s) shall be shielded to ensure that light is directed downward consistent with the requirements of the City's Night Sky Preservation standards contained in Chapter 17.23 of the Zoning Regulations. 5. Plans submitted for a building permit shall clearly depict the type of bicycle rack proposed, location and dimensions of all short and long-term bicycle parking. Sufficient detail shall be provided about the placement and design of bike racks and lockers to demonstrate compliance with relevant Engineering Standards and Community Design Guidelines, to the satisfaction of the Public Works and Community Development Directors. Packet Pg. 170 Item 9 Resolution No . ARC-1013-2018 790 Foothill Blvd., ARCH-1186-2017 Page 3 6. Plans submitted for a building permit shall include window details indicating the type of materials for the window frames and mullions, their dimensions, and colors. Plans shall include the materials and dimensions of all lintels, sills, surrounds recesses and other related window features. Plans shall demonstrate the use of high quality materials for the windows that reflect the architectural style of the project and are compatible with the neighborhood character, to the approval of the Community Development Director. 7. Plans submitted for a building permit shall include balcony railing details indicating the type of materials, picket details, dimensions and colors. Plans shall demonstrate the use of high quality materials for the railings that reflect the architectural style of the project and are compatible with the neighborhood character, to the approval of the Community Development Director. 8. Plans submitted for a building permit shall include cornice details indicating the type of materials, dimensions and colors. Plans shall demonstrate the use of high quality materials for the cornices that reflect the architectural style of the project and are compatible with the neighborhood character, to the approval of the Community Development Director. 9. Plans submitted for a building permit shall show the inclusion of accent colors that break up the proposed earth tone colors, especially along the west and east elevations, and highlight awnings, doors and/or other architectural features to the satisfaction of the Community Development Director. 10. Mechanical and electrical equipment shall be located internally. With submittal of working drawings, the applicant shall include sectional views of the building, which clearly show the sizes of any proposed condensers and other mechanical equipment. If any condensers or other mechanical equipment is to be placed on the roof, plans submitted for a building permit shall confirm that parapets and other roof features will adequately screen them. A line-of-sight diagram may be required to confirm that proposed screening will be adequate. This condition applies to initial construction and later improvements. 11. A final landscaping plan, including irrigation details and plans, shall be submitted to the Community Development Department along with working drawings. The legend for the landscaping plan shall include the sizes and species of all groundcovers, shrubs , and trees with corresponding symbols for each plant material showing their specific locations on plans. 12. The location of any required backflow preventer and double-check assembly shall be shown on all site plans submitted for a building permit, including the landscaping plan. Construction plans shall also include a scaled diagram of the equipment proposed. Where possible, as determined by the Utilities Director, equipment shall be located inside the building within 20 feet of the front property line. Where this is not possible, as determined by the Utilities Director, the back-flow preventer and double-check assembly shall be located in the street yard and screened using a combination of paint color, landscaping and, if deemed appropriate by the Community Development Director, a low wall. The size and Packet Pg. 171 Item 9 Resolution No . ARC-1013-2018 790 Foothill Blvd., ARCH-1186-2017 Page4 configuration of such equipment shall be subject to review and approval by the Utilities and Community Development Directors. 13. The location of any required transformer shall be shown on the site plans submitted for a building permit and shall be notched into the building and I or screened to the satisfaction of the Community Development Director. 14 . The Architectural Review Commission's determination regarding the project is contingent upon the approval of the City Council in regards to the 35% density bonus that includes a request for two incentives including the construction of a 43-foot tall structure where 35 feet is normally allowed and an increase in allowable lot coverage from 75% to 90%, subject to review by the City Council under a separate application (AFFH-1518-2018). 15. Full and final approval of the proposed project is expressly contingent upon the Planning Commission's approval of a use permit (Application No. USE 1187-2017) per San Luis Obispo Municipal Code section 17.53.020 because the project site is located in the Foothill Boulevard/Santa Rosa Special Focus Area. This condition of approval acknowledges that the Planning Commission's approval or denial of a use permit is subject to appeal to the City Council. 16. Each of the building segments shall be revised to convey separate identities using cohesive color and materials to the satisfaction of the Community Development Director. Plans submitted for a building permit shall include color elevations that illustrate the revised color and material changes. 17 . The project shall include more intentional articulation in the form of awnings, window sills, etc., especially along the west elevation to the satisfaction of the Community Development Director. 18. The roof line of the fourth floor shall be revised to include varying heights and more transparency to the satisfaction of the Community Development Director. Utilities Department 19. Water service to the project's commercial space shall be master metered with submeters for individual commercial tenants. 20. Any private sewer service that crosses one proposed parcel for the benefit of another shall provide evidence that a private utility easement and maintenance agreement appropriate for those facilities has been recorded prior to final subdivision. 21. The project's frontage improvements shall include 230-feet of 8" sewer main along Chorro (sewer manhole 106-35 to 106-19). If the proposed sewer main improvements result in a reduction on inflow or infiltration flows, the project will be credited with a reduction Packet Pg. 172 Item 9 Resolution No. ARC-1013-2018 790 Foothill Blvd., ARCH-1186-2017 Page 5 against the sewer offset requirement listed below and shall be made to the satisfaction of the Utilities Director. 22. The project's residential units and retail uses are required to implement off-site sewer rehabilitation (private lateral repair/ replacement) that results in quantifiable inflow and infiltration reduction in the City's wastewater collection system to offset the project's base wastewater flow increase. The final selection of the inflow and infiltration reduction project shall be approved by the Utilities Director. 23. The proposed utility infrastructure shall comply with the latest engineering design standards effective at the time the building permit is obtained and shall have reasonable alignments needed for maintenance of public infrastructure. 24. The project's road improvements along Chorro Street and Foothill Boulevard shall include provisions, including but not limited, to adjust or replace existing water valves, water mains, fiber cables, service laterals, and pressure reducing station that are material impacts created by the project and shall be made to the satisfaction of the Utilities Director. 25. The proposed project is within an area subject to shallow ground water. Heat-fused HDPE pipe shall be used for the new private sewer lateral and public sewer collection system to prevent groundwater infiltration. 26. If commercial uses in the project include food preparation, prov1s1ons for grease interceptors and FOG (fats, oils, and grease) storage within solid waste enclosure(s) shall be provided with the design. These types of facilities shall also provide an area inside to wash floor mats, equipment, and trash cans. The wash area shall be drained to the sanitary sewer. 27. The project's commercial and residential uses shall be metered separately. All residential units are to be individually metered. The CCR's for the property/homeowner association shall require that the sub-meters be read by the association (or P/HOA contracted service) and each condominium billed according to water use. Apartment units shall be serviced with a City owned master meter and sub-metered with private meters. 28. Final grades and alignments of all public and/or private water, and sewer shall be approved to the satisfaction of the Utilities Department. The final location, configuration, and sizing of on-site service laterals and meters shall be approved by the Utilities Director in conjunction with the review of the building plans, fire sprinkler plans, and/or public improvement plans. Public sewer and water pipe infrastructure shall not be extended into private access road. 29. Projects generating more than two cubic yards of total waste shall comply with AB 1826, and local waste management ordinance to reduce greenhouse gas emissions. A trash enclosure capable of storing the required bins for waste, recycling, and organics shall be provided. Packet Pg. 173 Item 9 Resolution No. ARC-1013-2018 790 Foothill Blvd., ARCH-1186-2017 Page6 Transportation -Public Works Department 30. Development necessitates a signalized exit to the Broad and Foothill intersection. Per the Transportation Impact Study dated April 2018, the development shall "modify traffic signal to provide equipment for southbound approach including any ancillary signal hardware additions and/or upgrades." Development shall submit a set of public improvement plans, to be reviewed by the City, to include the following: • PIP shall show revised signal phasing diagrams. New vehicle phase shall operate in a split phase configuration. City will provide existing signal timing and as-built plans. • The additional required indications for the Southbound vehicle and EB/WB pedestrian signal phases to the intersection. Caltrans standard Type 17-2-100 mast arm pole shall be installed on the Southeast comer for the SB approach to provide required indications. • New signal controller, capable of required additional signal phases, is necessary. This controller shall be a City approved McCain A TC eX 2070 controller to allow for the number of required vehicle and pedestrian phases at the intersection. • Controller shall operate McCain Omni eX Intersection control software, to provide the same. • Controller shall be installed in an A TC-capable cabinet as required by the equipment and location in the field. • Vehicle detection system for added SB vehicle phase, per City Standard Specifications . . • Audible pedestrian push buttons for the full signal (required by ADA and MUTCD when improving a traffic signal) • Countdown pedestrian signal heads (required by ADA and MUTCD when improving a traffic signal) • Multi-conductor cable pulled to the intersection of Foothill and Broad, and/or to replace all existing single strand conductors with multiconductor cable for signal to maintain required functionality. • The left turning phases at Foothill and Broad Street shall be converted from a protected /permissive operation to a Flashing Yellow Arrow protected permissive operation. • Replace existing signal indications as necessary for signal to conform to standards as outlined in California MUTCD Chapter 4. • Modify intersection striping, in thermoplastic, per City Standard Specifications. Developer shall construct all improvements shown in approved PIP before occupancy of project. Packet Pg. 174 Item 9 Resolution No. ARC-1013-2018 790 Foothill Blvd., ARCH-1186-2017 Page 7 31. Per the Transportation Impact Study dated April 2018, plans shall show truck turning movements into and out of the site and adjust the driveway design if warranted. 32. Per the Transportation Impact Study dated April 2018, traffic striping shall be modified to meet City Standards and the California Manual of Uniform Traffic Control Devices. 33. The crosswalks at Broad and Foothill shall be restriped as hi-visibility crosswalks per City Standards. Additionally, clear crossing enhancements shall be included across the site driveway to the satisfaction of the Public Works and Community Development Directors. 34. Access to the long-term bike parking room shall be modified to allow a more easily accessible entrance to the satisfaction of the Public Works Director and the Community Development Director. Trees and Urban Forestry -Public Works Department 35. The project proposes to remove 50 trees. The developer shall replace two trees for every one tree that is removed (the "replacement trees"). The developer shall plant as many of the replacement trees on the site as feasible of 24" box size. For the remaining required replacement trees, the developer shall make a financial donation to the Urban Forest Tree Bank for the purchase of 15-gallon trees to be used in local tree planting projects. The final tree planting and replacement plan shall be included as part of the building plans and approved by the City Arborist. 36. The building plan submittal shall show street trees with tree wells, grates and guards to the approval of the City Arborist and in accordance with City Engineering Standards. Tree species and sizes and all associated planting requirements shall be per City Engineering Standards, and shall incorporate the use of structural soils, subject to the approval of the City Arborist and Community Development Director, as appropriate. 37. The building plans shall include a landscape plan that clearly identifies all the tree species to be planted on the site. Street tree species shall be approved by the City Arborist and the Community Development Director. The landscape plans shall show adherence to the City's Tree Planting Standards, Street Tree Planting Requirements 12.24.070 and Street Tree Planting Procedures 12.24.080. Engineering Division -Public Works/Community Development Department 38. A voluntary lot merger shall be completed prior to building permit issuance unless otherwise deferred to a specific milestone inspection or occupancy to the satisfaction of the City. 39. The building plan submittal shall show and label all existing property lines, bearings, distances, and existing survey monumentation per MS SLO 76-176. The plan shall include any detailed information regarding offset monumentation or property line offsets. Packet Pg. 175 Item 9 Resolution No. ARC-1013-2018 790 Foothill Blvd., ARCH-1186-2017 Page 8 40. The building plan submittal shall show and reference all existing and/or proposed offers of dedication. If required, offers shall be completed by the applicant, approved by the City, and recorded prior to building permit issuance unless otherwise approved for deferral. 41. An offer of dedication will be required for any section of existing or proposed public sidewalk, ADA extension at driveway approach, curb ramp/landing, and new sidewalk at the truck pull-out. 42. A temporary encroachment agreement may be required for any private improvements located within the public right-of-way. These improvements include but are not limited to landscape and site improvements, landscape irrigation, and potentially the trash truck turn- out/loading zone. A separate agreement may be required for the management of the solid waste handling to the satisfaction of the City and San Luis Garbage Company. 43. The definition of uses allowed with trash truck tum-out shall be approved to the satisfaction of the City. The curb painting, signage, and any published operational hours shall be approved prior to building permit issuance. The design shall consider drainage, dumpster containment, and water quality treatment. The truck tum-out details and design shall be approved to the satisfaction of the Public Works Department. 44. The applicant and/or engineer of record shall contact this office to coordinate on the building plan submittal and limits of use of the building plan for covering the proposed work within the public right-of-way. 45. All existing and proposed improvements located within the public right-of-way shall be shown and noted for reference. All existing signage, posts, poles, guy wires, vaults, under sidewalk drains, etc. shall be shown along with their proposed disposition. Existing signs and posts shall be upgraded to current City Engineering Standards for breakaway safety (punch posts) and sign reflectivity. 46. A separate public improvement plan submittal for any significant street improvements including traffic signal modifications shall be submitted to the Engineering Development Review Section along with the required application, checklist submittal items, engineer of record estimate of probable cost, and appropriate plan review fee/retainer. A separate encroachment permit and inspection fees will be required in conjunction with all work located within the public right-of-way. 47. The curb ramp located at the comer of N. Chorro and Foothill shall be shown to comply with the current ADA, and City/Cal Trans standards. The ramp shall be upgraded if not in compliance with the standards in effect at the time of plan submittal and/or construction. A complying landing and public pedestrian easement may be required at the top of the ramp. Packet Pg. 176 Item 9 Resolution No. ARC-1013-2018 790 Foothill Blvd., ARCH-1186-2017 Page 9 48. Any sections of damaged, displaced, or non-compliant sections of sidewalk shall be repaired or replaced to the satisfaction of the Public Works Department. The temporary .transition sidewalk sections with non-compliant cross-slopes located between 215 and 225 N. Chorro shall be removed and replaced to a competent (conforming) sidewalk section. 49. The driveway approach and ADA sidewalk extension serving the parking garage may require additional pedestrian delineation, color coating, or other approved method to define the limits of the pedestrian path of travel across the garage opening. This item shall be approved to the satisfaction of the Public Works Department. 50. A separate demolition permit will be required for each distinct building/address. The demolition plans and/or re-development plans shall clearly identify all existing utilities and utility company meters for reference and shall clarify the limits of abandonment or reuse per City standards, codes, and ordinances. The existing ABS pipe (sewer?) cleanout located in the planter and adjacent to 215 N. Chorro shall be identified and the disposition clarified. 51. The applicant shall coordinate all existing and proposed utility service alterations to the satisfaction of the several serving utility companies and the City. The applicant shall clarify whether any utility easements exist or are proposed. The existing ATT above grade cabinet appears to be located outside the N. Chorro street right-of-way. 52. The applicant shall coordinate a meeting with the pertinent wire utility service planning personnel and City staff related to the existing overhead PGE and ATT wiring located along N. Chorro. The applicant shall exhaust reasonable efforts to eliminate/relocate the PGE l 2K v terminal end pole if practical to the satisfaction of the City. The applicant shall exhaust reasonable efforts to underground the existing lone reach of A TT cable between the two poles on N. Chorro if practical to the satisfaction of the City. 53. The applicant shall install a new streetlight along the N. Chorro frontage per City Engineering Standards or on an existing wood pole if allowed in accordance with utility company standards and adequate utility clearances are available. 54. The applicant shall exhaust reasonable efforts to extend the full width sidewalk along Foothill Blvd to provide a complying ADA access around the Sycamore tree to remain, if practical to the satisfaction of the City. The scope of work would require the relocation of a section of the short planter wall located along the back of sidewalk at 77 4 Foothill. 55. The parking lot shall comply with the Parking and Driveway Standards and California Building Code for striping, bay widths, space widths, accessibility, signage, striping, motorcycle spaces, and clearances from obstructions. 56. The building plan submittal shall include a parking management plan to be approved to the satisfaction of the City. The mechanical lift system shall be approved to the satisfaction of the Planning Division in accordance with the Zoning Code. Packet Pg. 177 Item 9 Resolution No . ARC-1013-2018 790 Foothill Blvd ., ARCH-1186-2017 Page 10 57. Shoring for subterranean sections of the parking garage shall not extend into the public right-of-way unless specifically approved by the Public Works Department. Temporary shoring may be authorized if removed upon the completion of construction. 58. The wall drains and/or sub-drains for the parking garage shall outlet to an approved location. If the water table, perched water, or spring water is encountered or expected, the project plans shall clarify how this water will be managed in accordance with City Engineering Standard 1010.B. 59. The building plans shall show any proposed or City required access controls to the yard areas located between the building and adjoining fence lines. Access controls if required by the City or proposed by the applicant, shall comply with any applicable codes and standards. 60. The building plan submittal shall include a drainage report, plan details, and documentation showing compliance with the Post Construction Stormwater Regulations. An 0 & M Manuel and Private Stormwater Conveyance Agreement shall be provided and approved/recorded as a condition of development. 61. The report and plans shall consider and include the areas of sidewalk replacement, alteration, and expansion within the project limits. The sidewalk shall be included in the area calculations and the sidewalk runoff shall be treated unless otherwise meeting an exemption by draining to landscape areas. 62. The demolition, grading, and re-development plans shall clearly show and label the existing Tree of Heaven tree and any new shoots or saplings. The existing invasive tree(s) shall be eradicated to the satisfaction of the City Arborist and City Natural Resources Manager prior to permit issuance. Indemnification 63. The applicant shall defend, indemnify and hold harmless the City and/or its agents, officers and employees from any claim, action or proceeding against the City and/or its agents, officers or employees to attack, set aside, void or annul, the approval by the City of this project, and all actions relating thereto, including but not limited to environmental review ("Indemnified Claims"). The City shall promptly notify the applicant of any Indemnified Claim upon being presented with the Indemnified Claim and the City shall fully cooperate in the defense against an Indemnified Claim. Packet Pg. 178 Item 9 Resolution No. ARC-1013-2018 790 Foothill Blvd., ARCH-1186-2017 Page 11 On motion by Commissioner Rolph, seconded by Commissioner Smith, and on the following roll call vote: A YES: Commissioners Rolph, Smith and Chair Root NOES: Commissioner Soll and Vice-Chair Nemcik REFRAIN: ABSENT: Commissioners Beller and Withers The foregoing resolution was passed and adopted this 161h day of July 2018. Doug~ Architectural Review Commission Packet Pg. 179 Item 9 RESOLUTION NO. PC-1013-18 A RESOLUTION OF THE SAN LUIS OBISPO PLANNING COMMISSION APPROVING A USE PERMIT FOR A MIXED-USE PROJECT IN THE FOOTHILL BOULEVARD SPECIAL FOCUS AREA, AN EXTENSION OF COMMERCIAL/RETAIL HOURS FROM 6:00 P.M. TO 10:00 P.M. AND THE USE OF MECHANICAL PARKING LIFTS INCLUDING A CATEGORICAL EXEMPTION FROM CEQA AS REPRESENTED IN THE PLANNING COMMISSION AGENDA REPORT AND ATTACHMENTS DATED July 25, 2018 (790 FOOTHILL BLVD, USE-1187-2017) WHEREAS, the Planning Commission of the City of San Luis Obispo conducted a public hearing in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo, California, on July 25, 2018 for the purpose of considering a use permit application USE-1187-2017 for a mixed- use project in the Foothill Boulevard I Santa Rosa Special Planning Area, an extension of the commercial/retail hours and the use of mechanical parking lifts for the proposed project at 790 Foothill Blvd; and WHEREAS, notices of said public hearing were made at the time and in the manner required by law; and WHEREAS, the Planning Commission has duly considered all evidence, including the testimony of the applicant, interested parties, and the evaluation and recommendations by staff, presented at said hearing. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of San Luis Obispo as follows: Section 1. Findings. Based upon all the evidence, the Commission makes the following findings in support of the project approval that includes a use permit for a mixed-use project in the Foothill Boulevard I Santa Rosa Special Planning Area, an extension of the commercial/retail hours, and the use of mechanical parking lifts: 1. That, in light of the protections afforded by the State Housing Accountability Act and Density Bonus Law, the project will not be detrimental to the health, safety, and welfare of persons living or working at the site or in the vicinity . 2. As proposed, the project is consistent with the Foothill Boulevard I Santa Rosa Special Planning Area of the Land Use Element (Policy 8.2.1) and Zoning Regulations because the project includes a vertical mixed-use project with commercial space of the first floor and high density residential on the upper floors. 3. The project is consistent with Land Use Element Policy 2.3.6 "Housing and Businesses" and 3.8.5 (Mixed Uses) because the project provides residential dwellings within a commercial district near neighborhood commercial centers, major activity nodes and transit opportunities. Housing at this location is compatible with proposed and existing commercial and residential uses on adjacent properties. Packet Pg. 180 Item 9 Planning Commission Resolution No. PC-1013-18 USE-1187-2017 (790 Foothill Blvd.) Page2 4. The project is consistent with Zoning Regulations Section 17 .08.072.F(2) and Table 9 because: I. Community Commercial (C-C) zone allows mixed-use projects; II. The project's design protects public health, safety, and welfare; and iii. The mixed-use project provides greater public benefits than a single-use development of the site because it provides needed housing, it is located along a major transit, bike , and pedestrian corridor, and is in close proximity of workplaces , schools, health facilities, and services. 5. As conditioned, the proposed mechanical parking lifts are consistent with Zoning regulations Section 17. l 6.060(D) because: I. The use of mechanical lift parking results in a superior design and implements City goals and policies for infill development by providing the required parking; II. The lifts are adequately screened; ni. Mechanical lift parking systems complies with all development standards including but not limited to height and setback requirements, and Parking and Driveway Standards and provides spaces for vehicles that do not fit in the lifts; iv. As conditioned, the mechanical parking systems will be safely operated and maintained in continual operation with the exception of limited periods of maintenance; and v. There are no circumstances of the development or model of mechanical lift system which could result in significant impacts to those living or working on the site or in the vicinity. 6. The project is consistent with the Conservation and Open Space Element policy 4.4.3 because the project promotes higher-density, compact housing to achieve more efficient use of public facilities and services and to improve the jobs/housing balance. 7. Commercial and retail uses on site will not negatively impact the residential uses in the development because the proposed commercial activity is consistent with adjacent businesses that have similar hours of operation , consistent with the LUE Policy 8.2.1, and the businesses must adhere to the City's Noise Ordinance. 8. The proposed extended hours of operation are consistent with LUE Policy 8.2.1 because the project will provide services that serve the residences of the project and the nearby neighborhoods. 9. As conditioned, the proposed uses on site will not negatively impact the residential uses in the development because the proposed commercial activity will be limited to hours of operation consistent with specific thresholds established within the Noise Ordinance for noise-sensitive uses, noise levels created by the uses during business hours will be within allowable limits as described in the Municipal Code. Packet Pg. 181 Item 9 Planning Commission Resolution No. PC-1013-18 USE-1187-2017 (790 Foothill Blvd.) Page 3 Section 2. Environmenta l Review. The project is categorically exempt under Class 32, In-Fill Development Projects, Section 15332 of the CEQA Guidelines, because the project is consistent with General Plan policies for the land use designation and is consistent with the applicable zoning designation and regulations. Specifically, the project site is located in the Foothill Boulevard/Santa Rosa Special Planning Area, as described in Section 8.2.1 of the City's General Plan Land Use and Circulation Element ("LUCE"), and complies with the guidelines and objectives applicable to the project site as a result of its inclusion within the Special Planning Area. Furthermore, the project-site is zoned C-C-SF (Community Commercial), a designation that permits high-density, mi.xed-use residential and commercial development, such as the project. After applying the density bonus provided for under California Government Code Section 65915 (discussed below), the project complies with all density limitations in the C-C-SF zone. Pursuant to California Government Code Section 65915, the project proponent has requested two density bonus incentives -to exceed the height limit in the C-C-SF zone by 8 feet, and to exceed the maximum lot coverage by 15%. California Government Code Section 65915( e )( 1) requires the City to grant these incentives and prohibits an agency from applying any development standard that will have the effect of physically precluding the construction of the residential units at the densities authorized by California Government Code Section 65915, and Section 8.2.1 of the LUCE specifically refers to such incentives as being a desirable mechanism for facilitating redevelopment of the area. Pursuant to Wollmer v. City of Berkeley, 193 Cal. App. 4th 1329, 1338 (2011), inclusion of the height and lot coverage incentives and/or required relaxation of development standards does not make the project inconsistent with applicable general plan policies and zoning regulations. The project site occurs on a property of no more than five acres. In fact, the project site is approximately 1.34 acres large and the site is surrounded on all sides by urban uses, including high density residential and commercial uses. The site is substantially surrounded by urban uses that has no value as habitat for endangered, rare or threatened species as the site is located on an existing developed property and is served by required utilities and public services. Approval of the project would not result in any significant impacts relating to traffic, noise, air quality or water quality. With respect to traffic, a study was conducted confirming that the project will have no significant effects. A copy of that study is available for review at the City of San Luis Obispo via the Lead Agency Contact Person. The project will be compatible with the existing urban environment and high-density residential and commercial surrounding uses and thus will not present any noise issues. The project will follow all applicable air and water quality regulations. Accordingly, there is no evidence that the project will result in any significant effects related to noise, air quality, or water quality. In accordance with the Berkeley Hillside Preservation v. the City of Berkeley, 60 Cal.4th 1086 (2015) case, there are no unusual circumstances surrounding the project which would otherwise except the project from the infill exemption. The project site is surrounded on all sides by urban uses, including high density residential and commercial uses. Section 3. Action. The Planning Commission does hereby approve the use permit Packet Pg. 182 Item 9 Planning Commission Resolution No. PC-1013-18 USE-1187-2017 (790 Foothill Blvd.) Page4 application USE-1187-2017 for a mixed-use project in the Foothill Boulevard I Santa Rosa Special Planning Area, an extension of the commercial/retail hours of operation and the use of mechanical parking lifts for the proposed project at 790 Foothill Blvd subject to the following conditions: 1. The proposed use shall operate consistent with the project description, approved plans, and other supporting documentation submitted with this application unless otherwise conditioned herein. 2. Hours of operation for the commercial component of the project shall be limited to 7:00 AM to 10:00 PM, unless otherwise approved by the Community Development Director through a separate application for extended hours for specific businesses. 3. Prior to building plan approval, the applicant shall record an agreement in a form subject to the approval of the City Attorney that runs with the land that mechanical parking systems will be safely operated and maintained in continual operation with the exception oflimited periods of maintenance. 4. All regular (non-mechanical lift) parking spaces shall be available for residential tenants, employees and customers free from restrictions. No regular parking spaces shall be individually labeled or allocated. 5. All mechanical lift parking spaces shall be available for all residential tenants, included in each tenant's lease agreement without additional rent or consideration, and free from restrictions, unless otherwise specified in a trip reduction plan. 6. The property owner shall prepare a trip reduction plan, prior to building permit approval, to include a monitoring program to evaluate the use of parking by the commercial tenants, car ownership by residents, overall project parking demand, and the use oflifts as approved to the satisfaction of the Community Development Director and Public Works Director. 7. The Planning Commission's determination regarding the project is conditioned upon the City Council's approval of the 35% density bonus and two affordable housing incentives including the construction of a 43-foot tall structure where 35 feet is normally allowed and an increase in allowable lot coverage from 75% to 90%, which is subject to review by the City Council under a separate application (AFFH-1518-2018). 8. Prior to issuance of a building permit, the applicant shall pay 100% of the total estimated cost of a new 60-foot radio tower located at Fire Station No. 2 and relocation and, if needed, replacement of any antenna and appurtenances (the "tower project"). The applicant shall be responsible if the actual costs of construction of the tower project is greater than any estimate. Building permits and/or certificates of occupancy may be withheld for lack of timely payment. 9. Prior to excavation, grading operators will be informed of the previous gas station remediation work completed. During excavation, should operators encounter any Packet Pg. 183 Item 9 Planning Commission Resolution No. PC-1013-18 USE-1187-2017 (790 Foothill Blvd.) Page 5 hazardous spills or 'stains' not previously remediated, work will stop in the immediate area. The following agencies shall be contacted immediately to determine the appropriate course of action: City of San Luis Obispo, County Environmental Health Division (CUPA contact). Work may resume only upon the written approval of the appropriate regulatory agencies. 10. Prior to issuance of a building permit, the applicant shall record a deed restriction, in a form subject to the approval of the City Attorney, ensuring that 12 studios in the project are only rented to very-low income households for a period of 55 years. 11. The project shall substantially comply with conditions established under Architectural Review Commission Resolution No. ARC-1013-2018 (Application No. ARCH-1186- 2017). 12. The project shall limit the maximum number of occupants to 2 people in a studio and in a one bedroom and no more than 4 people in a 2-bedroom unit. 13. The applicant shall defend, indemnify, and hold harmless the City and/or its agents, officers, and employees from any claim, action, or proceeding against the City and/or its agents, officers, or employees to attack, set aside, void, or annul the approval by the City of this project, and all actions relating thereto, including but not limited to environmental review ("Indemnified Claims"). The City shall promptly notify the applicant of any Indemnified Claim upon being presented with the Indemnified Claim, and City shall fully cooperate in the defense against an Indemnified Claim. On motion by Commissioner Jorgenson, seconded by Commissioner McKenzie, and on the following roll call vote: AYES: Commissioner Jorgenson, McKenzie, Dandekar, Wulkan, and Chair Fowler NOES: Vice Chair Stephenson ABSENT: None The foregoing resolution was passed and adopted this day of adopted this 25th day of July, 2018. 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%(1-$0,10225(*266$0(5%/8($6 +25,=$17$//$36,',1*3$,17('+$5',3/$1.&('$50,//&2/25 %(1-$0,10225(:22'$&5(6&3 3$,17%(1-$0,10225($/0267%/$&.&3 3$,17%(1-$0,10225(&5($0)/((&(&6 /$36,',1*3$,17('+$5',3/$1.&('$50,//&2/25 %(1-$0,10225(:22'$&5(6&+2552675((7(/(9$7,216&+(0($7,/( 6&+(0(%6&+(0(&&(0(173/$67(5678&&260227+752:(/(' ),%(5&(0(176,',1* &(0(173/$67(5678&&260227+752:(/(' ),%(5&(0(176,',1* &3 3$,17%(1-$0,10225(',67$17*5$<&6 9(57,&$/%2$5'$1'%$77(13$,17('+$5',3$1(/60227+&2/25 %(1-$0,10225(67250<021'$<%6 +25,=217$/6,',1*75(63$385$1)&)/86+&2/25 520$17,&:$/1870$77(),1,6+& 35(&$67&21&5(7(3$&,),&6721('(6,*1,1&/,0(6721(*(129$35(&$67:$//3$1(/6 Packet Pg. 214Item 9 Packet Pg. 215Item 9 Packet Pg. 216Item 9 Packet Pg. 217Item 9 Packet Pg. 218Item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acket Pg. 219Item 9 Date Rccei ved Filing Fee • J2( Non-applicant $ &2300 RECEIVED D Applicant: $1,557°0 AUG 0 6 2018 D Tree Appeal: s 11300 For Office Use Received by: __ II SLO CITY CLERK APPEAL TO THE CITY COUNCIL SECTION 1. APPELLANT INFORMATION fbdh ,'U f?J(11d Civie-1xzf;K;e< Name Mailing Address and Zip Code Phone Fax Od;/e.. , . A Y.-flza t Representative's Name Mailing Address and Zip Code Cooll.dikabk 13~5' -59-:)-:Z-?;}fl/ Title Phone Fax SECTION 2. SUBJECT OF APPEAL 1. In accordance with the procedures set forth in Title 1, Chapter 1.20 of the San Luis Obispo Municipal Code (copy attached), I hereby appeal the decision of the: (Name of Offi r. Committee or Commission decision being appealed) 2. The date the decision being appealed was rendered: (7 ~~ ~~ 3. The applO:ation or project was entiUed: f/o Fo,,./ ~;-J: =: :J Yf-.2.0!J 4. I discussed the matter with the following City staff member: Rack£f fvkeu ft,th aeR Gx:/tu 2LA.. on <11,111 £,orl '-'(s=--tal<.-'ff"-"M ..... e""'"m ..... b-er'_s..._.N,....aLLm ..... e_,_.a-nd_De_p ..... artm ........... e...r.nt ....... )........,....__~........,"'""'-"'-"'----0 (f{oate) 5. Has this matter been the subject of a ·previous appeal? If so, when was it heard and by whom: SECTION 3. REASON FOR APPEAL Explain specifically what action/s you are appealing and why you believe the Council should consider your appeal. Include what evidence you have that supports your appeal. You may attach additional pages, if necessary. This form continues on the other side. 07/17 update Page 1 of3 Packet Pg. 220 Item 9 Reason for Appeal continued S(lo aJd:a ch HAR u fs SECTION 4. APPELLANT'S RESPONSIBILJTY The San Luis Obispo City Council values public participation in local government and encourages all fonns of citizen involvement. However, due to real costs associated with City Council consideration of an appeal, includ ing public notification , all appeals pertaining to a planning application or project are subject to the following filing fee, which must accompany the appeal form: Applicant=$ 1,557, Non-applicant=$ 623, Tree Appeal=$ 113. Your right to exercise an appeal comes with certain responsibilities. If you file an appeal, please understand that it must be heard within 45 days from filing this fonn, except for matters arising under Chapter 17 .66 of the zoning code which shall be governed by that Chapter. You will be notified in writing of the exact date your appeal will be heard before the Council. You or your representative will be expected to attend the public hearing, and to be prepared to make your case . Your testimony is limited to 10 minutes. A continuance may be granted under certain and unusual circumstances. If you feel you need to request a continuance, you must submit your request in writing to the City Clerk . Please be advised that if your request for continuance is received after the appeal is noticed to the public, the Council may not be able to grant the request for continuance . Submitting a request for continuance does not guarantee that it will be granted; that action is at the discretion of the City Council. I hereby agree to appear and/or send a representative to appear on my behalf when said appeal is scheduled for a public hearing before the City Council. @!; {h:a~ ~~~ -lo1Y (iQOatUreot pettant ate) This item is hereby calendared for ____________________ _ cc: City Attorney City Manager Department Head Advisory Body Chairperson Advisory Body Liaison City Clerk (original) 11/17 update Page 2 of3 Packet Pg. 221 Item 9 Foothill Blvd Civic Defense August 6, 2018 City Council City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 RE: Appeal of the Planning Commission's Approval of a Conditional Use Permit for 790 Foothill; File Number USE-1187-2017 Dear Members of the City Council: This appeal is filed with the hope that your Council will use your discretion to correct the staffs and Planning Commission's incorrect interpretations of State and City law, inattention to this organization's public testimony, and the Planning Commission's approval of the above-referenced use permit for the applicant, LR Development Group. We request that the City Council continue this appeal hearing until corrections are made to respond satisfactorily to City General Plan and Zoning policies and standards, to State law and to maintain public health and safety. This letter incorporates and expands upon the attached letter from the law firm of Wittwer/Parkin, dated July 23, 2018, which represents Foothill Blvd Civic Defense. Where that letter was addressed to the Planning Commission, please consider it to be addressed to your Council. Please refer the application and this appeal back to the Planning Commission to give you some expert opinion before you act upon this appeal. The following sections constitute the main points of this appeal: 1. The claimed CEQA exemptions from environmental review do not apply because the Project does not meet the threshold criteria required for the exemptions, and environmental review is required (Please refer to the Wittwer/Parkin letter of July 23, 2018, section 1). a. The project does not meet the qualifications for a Categorical Exemption because the project design is not consistent with several sections of the Circulation Element and the Conservation and Open Space Element of the General Plan (COSE) (Ref. CEQA Guidelines 15192(a)(l)-(2); 15195 and 15332, attached). The July 23, 2018 Wittwer/Parkin letter explains these requirements in greater detail. All of the claimed exemptions by staff and Planning Commission are only applicable where a project is consistent with the General Plan and with Zoning. b. The City instead is required by the CEQA Guidelines to conduct an "Initial Study" to determine the significance of specific impacts on the public view at and near the site. The full list of CEQA topics should be addressed in the Initial Study, as applicable. The City should have prepared an independent Initial Study and a resulting Mitigated Negative Declaration or Environmental Impact Report. (Reference Wittwer/Parkin letter of July 23, 2018) 1 Packet Pg. 222 Item 9 2. The project is inconsistent with the Circulation Element and the Conservation and Open Space Element of the General Plan (COSE). The City did not require the project to be designed to be consistent with the scenic view protection policies in the Circulation Element and the COSE (See attached policies). The staff and Planning Commission neglected to utilize these General Plan policies to reduce the project's obstruction of public views of Bishop Peak and San Luis Mountain, and to reduce these obstructions' impacts to insignificance. a. The City staff erred in claiming that the Final EIR for the Land Use and Circulation Element (LUCE) update included adequate analysis and mitigations of impacts by potential development on public views of Bishop Peak and San Luis Mountain. The staff claim is not supported by the Final EIR text. i. The LUCE Final EIR states that a visual impact is considered significant if the proposed development, "Would have a substantial adverse effect on an identified visual resource or scenic vista from a public viewing area (roadways and public parks); ... (P. 4-7, Draft EIR; June 2014). The level of significance is also set by the General Plan. The COSE states that the potential view blockage on a scenic roadway is considered a "significant impact" (COSE Program 9.3.6). The proposed project is located at a major gateway intersection, from which many public views are provided of Bishop Peak and San Luis Mountain. The proposed project rendering shows almost total view blockage by the height of part of the project. ii. The LUCE Final EIR makes particular note of the Foothill/Santa Rosa Area, "Foothill /Santa Rosa Area: This part of the city supports views of the surrounding hillsides and natural open space. This portion of the city also serves as a gateway to the city urban core for southbound travelers along Highway 1. Future development has the potential to obstruct or block scenic views." iii. A verbal staff claim was incorrect at Planning Commission, that the project is at an insignificant location along the long length of the Foothill Boulevard corridor, and therefore the blockage of views of Bishop Peak and San Luis Mountain is insignificant. This analysis and claim was made without any visual impact study, which Is required by the COSE and by CEQA to provide factual data or evidence. iv. The LUCE Final EIR states that the mitigations for reducing view blockage are those measures within the COSE and the Circulation Element, such as, "The City will preserve and improve views of import;mt scenic resources from streets and roads ... by applying the Community Design Guidelines, height restrictions .. ;and the California Environmental Quality Act and Guidelines (see Attachment 2)." b. The lack of any written or factual analysis concerning blockage of this iconic view disqualifies the project from being approved with a finding that the project is consistent with the General Plan (Reference Wittwer/Parking July 23, 2018 letter, section 1). 2 Packet Pg. 223 Item 9 3. The project is also inconsistent with the zoning of the property, which is the C-C-SF (Community Commercial with a Special Focus Overlay) zone. Within districts having a special focus overlay, the special focus zoning overlay requires that all "development within the special planning areas shall adhere to the requirements of the underlying zone district and the provisions for each of the respective special planning areas." (City Code sec . 17.53.020). a. Without a project financial analysis (pro form a), it is assumed that the project unnecessarily exceeds the underlying zoning density limitation, the 35-foot height limit and the 75 percent maximum site coverage limit. As discussed in section l.b of the letter from Wittwer/Parkin, July 23, 2018, the applicant has not provided any information to demonstrate that without the alternative concessions, the twelve (12) affordable studios cannot be built. The staff and Planning Commission did not require a proforma financial analysis to show thatthe applicant needs the requested bonus and incentives to develop 12 affordable studios. b. These exceedances are not consistent with the zoning of the property, and the project does not qua I ify forthe CEQA Categorical Exemption, or qualify for a findingfor approval. 4. The City cannot bifurcate or divide approval ofthe housing incentives which result in reduction of site development standards from the rest of the project review. The City staff erred in bifurcating the project into three decisions, and then advising each body incorrectly and in violation of State CEQA law, concerningtheir respective purview and duties. The staffincorrectly scheduled a decision by the City Council last in the project review process, to grant the full requested density bonus and housing incentives, thereby depriving the Architectural Review Commission and the Planning Commission of valuable information whether their prerogatives in their review are unnecessarily and unfairly constrained by the applicant's proposal to use the concessions . (Refer to Item II in the Wittwer/Parkin letter) a. The staff told the Architectural Review Commission (ARC), and then the Planning Commission, that they co u ld not reduce density in order to make reductions in building height and bulk, in order to preserve significant views of Bishop Peak, or to reduce the parking demand, or provide more floor area for more parking. Yet, the City is enabled to require a proforma financial analysis to determine if~ of the proposed density is necessary to provide 12 affordable studios. The Planning Commission erred in not responding to pub I ic testi many which identified the fact that such a study is enabled and warranted. b. The staff told the Planning Commission that it could not require a financial analysis which would be the City Co u ncil p urv ie w in determiningwhetherto approve the proposed density bonus and incentives, although that purview and decision would be last in the process, thereby preventing them full use of the commission's authority and discretion. c. The staff have scheduled a City Council decision to consider granting the applicant a density bonus and two zoning concessions. d. This study is necessary for the Architectural Review Commission and the Planning Commission to use their discretion accordingly to consider appropriate reductions in density 3 Packet Pg. 224 Item 9 to enable achieving consistency with the General Plan and Zoning, and compliance with the California Environmental Quality Act {CEQA}. 5. There is no indication that the project requires a density bonus and two housing concessions to provide twelve affordable studios. The City did not fulfill its obligation to obtain a pro form a financial analysis of the project's costs/revenues, to determine the need for a density bonus and housing i nee ntives, and ide ntifythe infeasibility threshold to economically construct and operate 12 affordable studios . a. The staff did not provide full, factual information about the contents and intent of the Density Bonus Law. The law allows the City to reject a request for a density bonus and reduction of site development standards, upon a finding that the "concession or incentive does not result in identifiable and actual cost reduction ... to provide for affordable housing costs." Please refer to sections Ill and IV in the July 23, 2018 Wittwer/Parkin letter. These sections of the letter also point out required information that is lacking. b. The City staff incorrectly guided the Architectural Review Commission and Planning Commission by ignoring public testimony and insisting that the proposed density of /8 units may not be lowered at all. Other cities such i:IS San La Cruz, Berkeley, San Carlos and Los Angeles require proforma information in order to respond to density/incentive proposals. 6. A new Multi modal Transportation Impact Study is necessary to determine if health and safety would be adversely impacted by the proposed project. The Staff and Planning Commission erred in not requiring a current Traffic Impact Analysis, using 2018 or very recent traffic counts, signal wait ti mes, and coll is ion incidents reports, and detailed, consistent estimates of traffic at cumulative build-out of the area. They did not require detailed and correct estimates of traffic at cumulative build-out of the area, based on Zoning and General Plan policies. A new Traffic Study should be prepared to respond to the following issues: a. The Study relied on traffic counted in a previous 2016 study. The traffic study is looking at data that is anywhere between 2-4years old when over the past 4 years Cal Poly enrollments have increased by 1,970 students (2.5% per year growth rate: Fall 2014: 20,186 to Fall 2018: 22,156}, the population has increased by 1,143 (0.82% per year growth rate: 2014: 46,573 to Fall 2018: 47, 716} and the workforce population has increased by 2,870 {3.24% per year growth rate: Fall 2014: 21,238 to Fall 2018: 24,108). This traffic study is based on traffic counts that were taken when Cal Poly may have been out of session and when the Foothill Hill and University Square shoppi ng centers were notfullyoccupied or operational. i. The exact time of traffic counts for the 2016 Traffic Study does not appear to be indicated in the report. This is very important because traffic varies tremendously when Cal Poly is in session and when it is not. ii. Staff did not take into consideration the possible impacts of22 Chorro, the new overbuilt and underparked development being presently built across the street. Its impact upon the intersection remains unclear until the building is occupied. 4 Packet Pg. 225 Item 9 b. This segment of Foothill Boulevard is currently experiencing a large volume of car ( 18, 858 daily volume), pedestrian (526 daily volume) and bicycle (642 daily volume) traffic due to proximity to California Polytechnic University. According to "Trip Generation Rates from the 8th Edition ITE Trip Generation Report" a low-rise residential development comprised of 78 units will generate 534daily trips and 46 peak hour trips (these are more than reported in the study for general residential rates). This, in combination with 22 Chorro (23) and 71 Palomar (20), should trigger a project traffic study per the Multi modal Transportation Impact Study Guidelines when a project (or projects) is/are anticipated to approach 100 or more peak hour trips. c. The traffic study incorrectly used general family apartmenttrafficgeneration information, instead of unrelated adult occupancies. This general basis fortrafficgeneration is false as it considers an apartment occupied by a family unit. Trip generation by an apartment occupied by4 or more (8 for two-bedroom units) independent individuals is likely to be considerably different. Studies atthe University of California at Davis have shown that a student housing unit of 3000 students will generate a peak hour of traffic of 700 trips. If the 78 units may have an average of 4 students each, then the same ratio applied to this project would mean at least 73 peak hour trips would be generated, not the 32 shown in the report (Table 9). The report should recognize and address the issue of trafficgeneration by student housing, at the maxi mum anticipated at worst case densities. (Source: From 2003 Long Range Development Plan Final EIR UC Davis Vol 3 Page 2-106) d. The collision rate (2. 73 APMVM) for this segment of Foothill Blvd is above average forthe State of California Cal trans District 5, and the County of San Luis Obispo. A Transportation Impact Study is called for at this intersection because it is a high crash location and has a large volume of pedestrian and bicycle traffic. This roadway is already operating be low the established MMLOS standards and any further degradation to the MMLOs score should be considered a significant Impact underCEQA. On page 3-24 the Circulation Element states "Redevelopment of University Square shall incorporate a detailed circulation, safety & access management analysis forthe intersections of Boysen & Santa Rosa (Potential Grade Separated Crossing I Restriction), Foothi II & Chorro, and Foothill & Broad as well as driveway access points along adjacent roadways; and recommend improvements, if any ." This traffic study does not fulfill this requirement. e. Accardi ng to the Central CoastTransportation Consulting re port, northbound traffic at the Foothill Blvd./Chorro Street intersection is operating at an LOS score of D both during the mid-day peak hours and PM peak hours. Yet, the northbound LOS score implausibly remains the same for both the Cumulative and the Cumulative Plus Project for these two peak hours. f. The Multi modal Transportation Impact Study did not reveal the planned extent of cumulative building in the Foothill Special Focus Area, which staff incorrectly stated as just shopping centers. The staff separately stated thatthe focus area is intended for intense, dense mixed use projects. The extent of traffic generated by large-scale mixed-use residential projects was not identified and apparently not included. The report's omission of data which estimates the potential cumulative build-out of the Special Focus Area leaves it unknown what level of traffic to anticipate. g. Staff and Planning Commission did not respond adequately to the residents who described the difficulties of this intersection, and how everyone's safety is going to be adversely impacted. In a recent Fremont case (Protect Niles v. City of Fremont, 7/16/2018), the judge 5 Packet Pg. 226 Item 9 sided with the residents when he wrote: "These fact-based comments by residents support a fair argument that the Project would have a significant adverse impact on traffic congestion on Niles Boulevard in the vicinity of the Project. Residents' personal observations of traffic conditions where they live and commute may constitute substantial evidence ifthey contradict the conclusions of a professional traffic study. (See Keep Our Mountains Quietv. County of Santa Clara (2015) 236 Cal.App.4th 714, 735-736 & fn.13.) This is especially true there, as here, residents cite specificfacts that call into question the underlying assumptions of a traffic study." (emphasis added) 7. The extent of parking demand, occupancy in the mechanical lift system, and potential for traffic and on-street parking demand were not quantitatively analyzed. a. Surveys of parking demand and associated traffic and traffic safety impacts should have been prepared, similarto the Shattuck and University Mixed Use Project Traffic and Parking study conducted in Berkeley by Abrams Associated: https ://www .city of be rkeley. info/uploaded Fil es/Planning_and_Development/Leve 1_3 _ - _Land_Use_Division/2011-06-23%20Traffic%20and%20Parking%20Study.pdf b. The Chorro /Foothill area is already bumper to bumper parking every day ofthe week when Cal Poly is in session, especially on North Chorro and Boysen (and this, before the completion of22 Chorro,) and both shopping centers have had to hire companies to help monitor parking on their lots. c. The so-called 2 bedroom apartments at 22 Chorro are now brashly advertised as4 bedrooms on several websites. Consequently, the numberof tenants is twice as important as foreseen, and required parking is significantly be tow what itshoutd have been. The same statement is valid for790 Foothill. In view of the developer's acknowledgementthatthese are truly 4 bedroom apartments, it is within the City's purview to require additional parking for 790 Foothill. d. In the worst case scenario, if all tenants have cars, there will be a shortfall of 313 on-site parking spaces. These cars will be vying with the 44 students residing atThe Academy (those who will also be lacking on site parking spaces) for on-street parking spaces in the surrounding neighborhoods. By approving this project as submitted you will be reducing public safety by increasing congestion on public streets and depleting available on-street parking. Un-accommodated tenants, guests, retail customers and service personnel will be forced to find parking in the adjacent neighborhoods and in private parking lots already impacted by spill-over pi:!rking. Several adjacent businesses already post parking guards and have aggressive towing programs . (PDF) On-street parking: Effects on traffic .... Available from: https://www.researchgate.net/publication/46212892_0n- street_parking_Effects_on_traffic_congestion [accessed Aug 03 2018]. e . It is clear that this infill project will be adversely impacted by the surrounding environment because of the potential overflow parking problem and because of the unsafe transportation patterns that presently occur nearthe Chorro/Foothill intersection. To be clear, creating an An ho Im Residential Permit Parking District and expanding the Ferrini Residential Parking Permit District will protect these neighborhoods from spill-over parking, but it is also clear that doing so will adversely impactthis infill project by further depleting on-street parking for those tenants lacking on-site parking spaces. 6 Packet Pg. 227 Item 9 f. It was incumbent on the traffic consultant to cite in its report the following passage in our Circulation Element -14.1.2. Neighborhood Protection: "The City shall facilitate strategies to protect neighborhoods from spill-over parking from adjacent high intensity uses" and to cite the following passage in our Land Use Element -2.3.9. Compatible Development: "The City shall require that new housing built within an existing neighborhood be sited and designed to be compatible with the character of the neighborhood. Compatibility for all development shall be evaluated using the following criteria: I. Parking "New Development"; (a) Outside of the Downtown in-lieu parking fee area, new development will be required to provide adequate off-street parking to match the intended use." g. This traffic study is remiss in that it ignored the vehicle maneuvers required when entering or leaving on-street parking. These should have been included in the traffic management overall evaluation. These vehicle maneuvers can contribute to the cause of congestion especially when traffic volumes are high. Two types of on-street parking behavior have been observed. These include legal and illegal on-street parking. On-street parking maneuvers often start temporary bottlenecks, potentially affecting some following vehicles, which might have to endure an extra delay. When close to signalized intersections, such delay can sometimes linger over multiple cycles, affecting vehicles that arrive much later. The shortage of on-street parking can increase traffic congestion by forcing drivers to circle blocks multiple times before an on-street parking space is freed up. Moreover, previous studies have taken into account the reduction in road width to accommodate on-street parking and its effect on reduction in road capacity. Hobbs[3] reported the influence of the physical use of road space, parking maneuvers and opening of car doors on increasing delay (see: https://www.researchgate.net/publication/46212892_0n- street_parking_Effects_on_traffic_congestion & https:// onlinelibra ry. wiley .com/ doi/fu 11/10.1002/atr.1329). h. This traffic study should have included on-street parking occupancy surveys conducted on both weekdays and weekends while Cal Poly is in session and while both shopping centers are up and running. Similar to the Shattuck and University Mixed Use Project Traffic and Parking Study conducted by Abrams Associated, over 20 block faces in the vicinity of the project site should have been surveyed. (see: https://www.cityofberkeley.info/uploaded Files/Pian ning_ a nd_Development/Level_3 _ - _Land_Use_Division/2011-06-23%20Traffic%20and%20Parking%20Study.pdf) i. This project creates an unacceptable safety risk to the residents who have vehicles that will not fit into the mechanical lift, to the residents who do not have parking privileges in the mechanical lifts, to the tenants' guests, to the commercial/retail customers, to handicapped drivers when the two handicapped spaces are filled, to staff and employees, to the landscapers, maintenance and cleaning personnel and to the commercial delivery workers. 8. Affordable Housing Units. We believe that the low proportion and of only one type of low-income affordable units in the project, and the expensive prices of remaining luxury student apartments, does not meet the intent of the City's Mixed Income Housing Policy 4.2, "Include both market-rate and affordable units in apartment and residential condominium projects and intermix the types of units. Affordable units should be comparable in size, appearance and basic quality to market-rate units." 7 Packet Pg. 228 Item 9 The area near this intersection includes Pacheco Elementary School with a large number of struggling families, two shopping centers with many minimum wage employees, and Sierra Vista Hospital with a wide range of salaries. This location is therefore perfect for real workforce housing that would include one and two bedroom low-income apartments with parking. We can only deplore that the City chose to build luxury apartments for well-to-do students instead, with very low income units unfit for working families, who even if they resigned themselves to live in a small studio, could hardly conceive living among privileged students. We do not believe that the type of development proposed for 790 Foothill was the intent of the new affordable housing law. We therefore request that the City Council continue this appeal hearing until a new unbiased traffic study, based upon student housing, not family apartments, and complete with precise dates as well as on-street occupancy survey, is done when Cal Poly is in session and 22 Chorro is up and running. We ask that all the requested corrections are made regarding General Plan and Zoning consistency, CEQA exemptions, bifurcation of approval of the Housing Incentives, proforma information to make design decisions and to respond satisfactorily to State and City law and City General Plan and Zoning policies. Thank you for your consideration of these comments. Sincerely, Odile Ayral and James Lopes For Foothill Blvd Civic Defense Attachments: 1. General Plan policies referenced in item 2 2. Municipal Requirements for project proformas referenced in Item Sb 3 . July 23, 2018 letter from Wittwer/ Parkin; by Pearl Kan 8 Packet Pg. 229 Item 9 ATTACHMENT 1 General Plan policies referenced in item 2, 790 Foothill Appeal Letter Foothill Blvd Civic Defense a. Reference: Circulation Element policies listed in the LUCE Final EIR, which apply to the project: "15.0.2 Development Along Scenic Routes. The City will preserve and improve views of important scenic resources from streets and roads. Development along scenic roadways should not block views or detract from the quality of views ... B. Development projects should not wall off scenic roadways and block views. C. As part of the City's environmental review process, blocking of views along scenic roadways should be considered a significant environmental impact." b. Reference: Conservation and Open Space Element policies listed in the LUCE Final EIR applicable to the project: i. "9.1.5 View protection in new development. The City will include all environmental review and carefully consider effects of new development, streets and road construction on views and visual quality by applying the Community Design Guidelines, height restrictions, hillside standards, Historical Preservation Program Guidelines and the California Environmental Quality Act and Guidelines." ii. "9.2.1 Views to and from public places, including scenic roadways. The City will preserve and improve views of important scenic resources from public places, and encourage other agencies with jurisdiction to do so. Public places include parks, plazas, the grounds of civic buildings, streets and roads, and publicly accessible open space. A. Development projects shall not wall off scenic roadways and block views. B. Where important vistas of distant landscape features occur along streets, street trees shall be clustered to facilitate viewing of the distant features. C. Development projects, including signs, in the viewshed of a scenic roadway shall be considered "sensitive" and require architectural review." iii. 9.2.2 Views to and from private development. Projects should incorporate as amenities views from and within private development sites. Private development designs should cause the least view blockage for neighboring property that allows project objectives to be met. iv. 9.3.4 Environmental and architectural review. Conduct environmental review and architectural review consistent with General Plan goals and policies regarding visual impacts and quality. v. 9.3.5 Visual assessments. Require evaluations (accurate visual simulations) for projects affecting important scenic resources and views from public places. vi. 9.3.6 View blockage along scenic highways. Determine that view blockage along scenic roadways is a significant impact. 9 Packet Pg. 230 Item 9 Attachment 2 References to Municipal Requirements for Project Pro Formas, Item Sb Foothill Blvd Civic Defense City of Santa Cruz 3. Tier 2 Concessions -Planning Commission Approval and Financial Pro Forma Required. The following concessions and incentives may be approved by the planning commission, unless the housing development or other concessions otherwise require approval by the city council. The applicant shall provide a proforma demonstrating to the city that the requested concession or incentive results in identifiable and actual cost reductions to the project to provide for affordable ownership costs or affordable rents. a. Greater increases in lot coverage than included in Tier 1; b. Greater reductions in front, side, or rear setbacks than included in Tier 1; c. Greater reductions in required landscape area than included in Tier 1; 4. Tier 3 Concessions -City Council Approval and Financial Pro Forma Required. The following concessions and incentives may be approved by the r.:ity council. The applicant shall provide a proforma demonstrating to the city that the requested concessio;; c~ ir...:c;-.~;·;..: ;..::;;~,::.: ::·. :~: :·.:·~::. '.: '.~ :. ··.-.:. ::.::· .:· '. cost reductions to the project to provide for affordable ownership costs or affordable rents: a. Deferring collection of impact fees on market rate units until issuance of certificate of occupancy; b. Reduction in the minimum requirements for lot area; lot width; or distance between residential structures; c. Increases in the maximum permitted building height; percentage of compact parking spaces; floor area ratio for non-residential housing development in mixed use project; fence height; or sign area or dimensions; d. Reduced parking space dimensions; driveway width; parking aisle width; garage and carport dimensions; or bicycle parking requirements; e. Parking spaces located within required setback areas; f. Reduction of off-street parking ratios below those permitted by Government Code Section 65915 (p) and Section 24.16.260(5); g. Approval of mixed use buildings or uses as part of the residential housing development, if non- residential land uses will reduce the cost of the residential housing development, and if the city finds that the proposed non-residential uses are compatible with the residential housing development and with existing and planned development in the area where the proposed residential housing development will be located; h. Any direct financial assistance, including that for purchasers of affordable units; i. Any additional regulatory incentives or concessions not included in Tier 1 or Tier 2. City of Berkeley Procedure for Evaluating Density Bonus Applications Applicant submits "pencil out proforma," using the following scenarios: A. Base Project, 100% market rate (pays City's affordable housing impact fee) B. Base Project, with proposed BMR units C. Density Bonus Project, with BMR units and density bonus units D. Proposed Project, with requested concessions/incentives Proforma Is peer-reviewed by a qualified consultant (at a rate of $180/hour) Determination whether the concession is necessary pursuant to 65915(d)(l)(A) Review written request for waivers 10 Packet Pg. 231 Item 9 City of Santa Cruz The City's 2006 ordinance was adopted reluctantly as density bonus was perceived to undermine the local zoning ordinance and its provisions to ensure compatibility with existing neighborhoods. To limit excessive deviations from design review standards established in local code, the City applied a tiered process to review concessions that made it onerous for applicants and limited predictability in the process. Concessions that were deemed to have heightened sensitivity were subject to Planning Commission or Council review (e.g. increases in height, bulk, and floor area), which stalled praje-::! processing and effectively deterred applicants. The City also required de-.-:~:;~:;·:;;:;:;:;;,;~;:·;;~ ~;:.:.;;;:;:.J ;;.. ;,, formas to justify requested incentives, concessions, waivers, or reductions. City of San Carlos D. Concessions Requiring Financial Pro Forma from Applicant. All other concessions and incentives shall require the builder to demonstrate to the City Council through the provision of a proforma that the requested concession or incentive results in identifiable, financially sufficient, and actual cost reductions to the residential development. The proforma shall include: 1. The actual cost reduction achieved through the concession or incentive; 2. Evidence that the cost reduction allows the builder to provide affordable rents or affordable sales prices; and 3. All other information as may be requested by the Administrator to ensure that the required findings can be made City of Los Angeles FINANCIAL ANALYSIS I PRO-FORMA Pursuant to the Affordable Housing Incentive Density Bonus provisions of the LAMC (Section 12.22 A.25), proposed projects that involve on-menu incentives are required to complete the Department's Master Land Use Permit Application form, and no supplemental financial data is required. The City typically has the discretion to request additional information when it is needed to help make required findings. However, the City has determined that the level of detail provided in a proforma is not necessary to make the findings for on-menu incentives. This is primarily because each of the City's eight on-menu incentives provides additional buildable area, which, if requested by a developer, can be assumed to provide additional project income and therefore provide for affordable housing costs. When the menu of incentives was adopted by ordinance, the impacts of each were assessed in proportion to the benefits gained with a set-aside of affordable housing units. Therefore, a pro-forma illustrating construction costs and operating income and expenses is not a submittal requirement when filing a request for on-menu incentives. The City's Density Bonus Ordinance requires "a proforma or other documentation" with requests for off-menu incentives but has no such requirement for on-menu requests. 11 Packet Pg. 232 Item 9 0 a:: a: 0 I u Q z <'.( .....J .....J I t-o 0 LL. ~ 0 a:: LL. ~ <'.( w a.. a.. 0 :c V') -al LL. 0 s w -> Packet Pg. 233 Item 9 SENT VIA EMAIL Planning Commission City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 advisorybod i es@sl oci ty. org July 23, 2018 Re: July 25, 2018 Planning Commission Hearing Agenda Item Number 1: 790 Foothill Blvd (File Number USE-1187-2017) Dear Members of the Planning Commission: This law firm represents Foothill Blvd Civic Defense and submits this letter on its behalf. The Planning Commission should continue this item until proper environmental review is conducted for 790 Foothill Boulevard (Project). 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. In addition, the City may not bifurcate the issue regarding the housing incentives for separate City Council consideration from the rest of the Project in violation of CEQA. Similarly, the Planning Commission should also continue this item until the applicant can demonstrate that the two housing incentives requested, increased height allowance from 35 to 43 feet and increased building coverage from 75% to 90%, are both necessary for the construction of the twelve (12) purported affordable studios. Finally, the applicant has made no indication whether the purported very low-income studios will be offered for sale or for rent or the proposed factors which will make the twelve studios affordable to very-low income households, as required under City Code§ l 7.90 .030(B). I. Claimed CEQA Exemptions Do Not Apply Because the Project Does Not Meet the Threshold Criteria Required for the Exemptions and Environmental Review is Required a. The Project is Inconsistent with Several General Plan Policies Set Forth in the City's Conservation and Open Space Element The City claims that environmental review is not required because the Project qualifies WITTWER PARKIN LLP / 147 s. RIVER ST., STE. :221 I SANTA CRUZ, CA/ 95060 / 831.429.4055 www. WITTWERPARKIN.COM I LAWOFFICE@WITTWERPARKIN.COM Packet Pg. 234 Item 9 July 23, 2018 Planning Commission Meeting Agenda Item Number I: 790 Foothill Boulevard Page 2 for (1) the residential infill exemption as well as (2) the in-fill exemption pursuant to CEQA Guidelines sections 15195 and 15332. As a threshold matter, "[i]n order to qualify for an exemption set forth in sections 15193, 15194, or 15195, a housing project must meet all of the threshold criteria set forth [under CEQA Guidelines§ 15192]. The project must be consistent with: (1) any applicable general plan •... and (2) any applicable zoning ordinance." (CEQA Guidelines§ 15192(a)(l)-(2), emphasis added .) Similarly, the alternative exemption claimed under CEQA Guidelines section 15332 is only applicable where a project "is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations." (CEQA Guidelines§ 15332(a).) As explained below, because the Project is inconsistent with General Plan Policies set forth under the City's Conservation and Open Space Element, these exemptions do not apply and environmental ri::vii::w is re4uired. The Project is wholly inconsistent with several policies under the City's Conservation and Open Space Element of the General Plan (COSE). The COSE protects views to and from public places, including scenic roadways . (COSE Policy 9.2.1.) Specifically, the General Plan prohibits development that will wall off scenic roadways and block views: "Development prujt:l:ls shall uot wall off scenic roadways and block views." (COSE Policy 9.2.l(A).) Foothill Boulevard and Chorro Street are each expressly identified as scenic roadways in Figure 11 of the COSE and the Project is proposed on the very comer of Foothill Boulevard and Chorro Street. The proposed project is 43 feet, which is 8 feet higher than what is allowed under Community Commercial zoning. As such, the Project will wall off both Foothill Boulevard and Chorro Street, and block views of Bishop Peak, one of the famous Morros, explicitly identified as worthy of visual protection in the COSE. The proposed Project violates the express policies identified in the COSE which prohibits development that will wall off scenic roadways and block views. In addition, the Project is inconsislt:nl with all of the below COSE policies (emphasis added). 9.1.2 .. Urban development. The Cily will implement the following principle and will encourage other agencies with jurisdiction to do so: urban development should reflect its architectural context. This does not necessarily prescribe a specific style, but requires deliberate design choices that acknowledge human scale, natural site features, and neighboring urban development, and that are compatible with historical and architectural resources. Plans for sub-areas of the city may require certain architectural styles . Packet Pg. 235 Item 9 July 23, 2018 Planning Commission Meeting Agenda Item Number 1: 790 Foothill Boulevard Page 3 9.1.5. View protection in new development. The City will include in all environmental review and carefully consider effects of new development, streets and road construction on views and visual quality by applying the Community Design Guidelines, height restrictions, hillside standards, Historical Preservation Program Guidelines and the California Environmental Quality Act and Guidelines. 9.2.1. Views to and from public places, including scenic roadways. The City will preserve and improve views of important scenic resources from public places, and encourage other agencies with jurisdiction to do so. Public places include parks, plazas, the grounds of civic buildings, streets and roads, and publicly accessible open space. In particular, the route segments shown in Figure 11 are designated as scenic roadways. A. Development projects shall not wall off scenic roadways and block views. B. Utilities, traffic signals, and public and private signs and lights shall not intrude on or clutter views, consistent with safety needs. C. Where important vistas of distant landscape features occur along streets, street trees shall be clustered to facilitate viewing of the distant features. 9.3. Programs The City shall do the following to protect and enhance views, and will encourage others to do so, as appropriate: 9.3.4. Environmental and architectural review. Conduct environmental review and architectural review consistent with General Plan goals and policies regarding visual impacts and quality. COSE Policy 9.3.4 sets forth the mandatory obligation for the City to "[c]onduct environmental review and architectural review consistent with General Plan goals and policies regarding visual impacts and quality." Policy 9.3.4 is prefaced by the obligation set forth under Policy 9.3, "The City shall. .. " The COSE expressly requires environmental review for projects that implicate the visual setting, as this Project does. The claimed exemptions do not apply. b. The Project is Inconsistent with Applicable Zoning Designation and Regulations Separately, the Project does not qualify for either exemption under CEQA because it is inconsistent with applicable zoning. The Project's underlying zoning is C-C-SF (Community Commercial with a Special Focus Overlay). For districts with a special focus overlay, the special focus overlay requires all "development within the special planning areas shall adhere to Packet Pg. 236 Item 9 July 23, 2018 Planning Commission Meeting Agenda Item Number 1: 790 Foothill Boulevard Page 4 the requirements of the underlying zone district and the provisions for each of the respective special planning areas." (City Code§ 17.53.020.) The underlying zone, C-C, or Community Commercial specifies the following relevant zoning requirements: • Maximum height: Thirty-five feet • Maximum coverage: Seventy-five percent The proposed Project exceeds the height standard which will increase by eight (8) feet to 43 feet, and the coverage will increase by 15 percent for a total of 90% building coverage. This makes this Project ineligible for the CEQA exemptions claimed. The applicant may argue that the alternative concessions render the Project consistent with zoning pursuant to the Density Bonus Law. But as discussed below, the applicant has not provided any information to demonstrate that without the alternative concessions, the twelve (12) affordable studios cannot be built. And, the Project is still inconsistent with the General Plan policies identified above. The City's claim of exemption from environmental review is wholly improper and it would constitute an abuse of discretion to proceed with the Project without proper environmental review. II. The City Cannot Bifurcate Approval of the Housing Incentives Which Result in Reduction of Site Development Standards from the Rest of the Project The draft resolution sets forth that the "Planning Commission's determination regarding the project is contingent upon the City Council's approval of the 35% density bonus and two affordable housing incentives ... which is subject to review by the City Council under a separate application (AFFH-1518-2018.)" (Packet Page 16, Draft Resolution Section 2, No. 7.) This procedure improperly bifurcates the whole of the Project from the purview of the City Council and 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. Project review should not be separated in this manner and if in fact the City approves application AFFH-1518-2018 prior to considering, inter a/ia, environmental review, the City would have committed itself to a project without first considering the environmental impacts in violation of CEQA. Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 134. III. There is No Indication that the Project Requires Two Housing Concessions to Provide Twelve Affordable Studios The Density Bonus Law allows the City to reject a reduction in site development standards upon a finding that the "concession or incentive does not result in identifiable and actual cost reductions ... to provide for affordable housing costs." (Gov. Code§ 65915(d)(l)(A).) Packet Pg. 237 Item 9 July 23, 2018 Planning Commission Meeting Agenda Item Number 1: 790 Foothill Boulevard Page 5 There is simply no showing made by the applicant that the concessions or incentives result in identifiable and actual cost reductions to provide for the twelve affordable studios. The City Code requires the following information to be included in a request for a density bonus: "Whether the dwellings will be offered for sale or for rent" and "The proposed sale price, financing terms, rental rates or other factors which will make the dwellings affordable to very- low, lower and moderate income households." (City Code § 17.90.030(B)(5)-(6).) This required information is wholly lacking. Similarly, there is no condition of approval that restricts the twelve affordable studios to very-low income households, upon which the applicant received the 35% density bonus. IV. The City Will Not Violate the Housing Accountability Act if it Requires the Applicant to Demonstrate Why the Housing Incentives are Necessary for Economic Feasibility The Planning Commission need not make a final decision on the Project at this meeting. In fact, the Planning Commission should continue the item until there is sufficient information available to make a reasoned decision, which there currently is not. As argued in this letter, the applicant has made no showing that the housing incentives in the form of height exception and increased building coverage are necessary for the feasibility of this affordable housing project. The Planning Commission is well within its authority to request the applicant make this threshold showing as well as for the applicant to attempt a building design that is more aligned with community designed standards prior to considering the merits of the Project. It should be emphasized that ifthe Planning Commission requires the applicant to demonstrate why the housing incentives are required for the economic feasibility of the Project or requires additional design alternatives that can accommodate affordable housing, the admonitions under the Housing Accountability Act are not implicated. This is because request of this highly relevant information does not result in project denial. Nor does it result in the City conditioning approval in a manner that renders the Project infeasible for development for the use of very-low income households in violation of the Housing Accountability Act. The pertinent section of the Housing Accountability Act is provided below: A local agency shall not disapprove a housing development project. ... for very low [households], or condition approval in a manner that renders the housing development project infeasible for development for the use of very low [households], including through the use of design review standards, unless it makes written findings, based upon a preponderance of the evidence in the record ... (Gov. Code§ 65589.5(d)(l).) Packet Pg. 238 Item 9 July 23, 2018 Planning Commission Meeting Agenda Item Number 1: 790 Foothill Boulevard Page 6 Conclusion For the reasons stated herein, there is currently insufficient information in the record and the Planning Commission should continue the item and require the applicant (1) to demonstrate that the housing incentives are necessary to make the twelve affordable units economically feasible, (2) to show the mechanism by which the dwellings will be made available to very-low income households, (3) to consider design alternatives that can accommodate both affordable housing and community design standards, and separately, require environmental review for the Project. Thank you for your consideration of these comments. cc (via email): Rachel Cohen, Associate Planner Doug Davidson, Deputy Director Jon Ansolabehere, Assistant City Attorney Very truly yours, WITTWER PARKIN LLP ~ Pearl Kan Packet Pg. 239 Item 9 CALIFORNA GOVERNMENT CODE TITLE 7. PLANNING AND LAND USE [65000 - 66499.58] ( Heading of Title 7 amended by Stats. 1974, Ch. 1536. ) DIVISION 1. PLANNING AND ZONING [65000 - 66210] ( Heading of Division 1 added by Stats. 1974, Ch. 1536. ) CHAPTER 4.3. Density Bonuses and Other Incentives [65915 - 65918] ( Chapter 4.3 added by Stats. 1979, Ch. 1207. ) 65915. (a) (1) When an applicant seeks a density bonus for a housing development within, or for the donation of land for housing within, the jurisdiction of a city, county, or city and county, that local government shall comply with this section. A city, county, or city and county shall adopt an ordinance that specifies how compliance with this section will be implemented. Failure to adopt an ordinance shall not relieve a city, county, or city and county from complying with this section. (2) A local government shall not condition the submission, review, or approval of an application pursuant to this chapter on the preparation of an additional report or study that is not otherwise required by state law, including this section. This subdivision does not prohibit a local government from requiring an applicant to provide reasonable documentation to establish eligibility for a requested density bonus, incentives or concessions, as described in subdivision (d), waivers or reductions of development standards, as described in subdivision (e), and parking ratios, as described in subdivision (p). (3) In order to provide for the expeditious processing of a density bonus application, the local government shall do all of the following: (A) Adopt procedures and timelines for processing a density bonus application. (B) Provide a list of all documents and information required to be submitted with the density bonus application in order for the density bonus application to be deemed complete. This list shall be consistent with this chapter. (C) Notify the applicant for a density bonus whether the application is complete in a manner consistent with the timelines specified in Section 65943. (D) (i) If the local government notifies the applicant that the application is deemed complete pursuant to subparagraph (C), provide the applicant with a determination as to the following matters: (I) The amount of density bonus, calculated pursuant to subdivision (f), for which the applicant is eligible. (II) If the applicant requests a parking ratio pursuant to subdivision (p), the parking ratio for which the applicant is eligible. Packet Pg. 240 Item 9 (III) If the applicant requests incentives or concessions pursuant to subdivision (d) or waivers or reductions of development standards pursuant to subdivision (e), whether the applicant has provided adequate information for the local government to make a determination as to those incentives, concessions, or waivers or reductions of development standards. (ii) Any determination required by this subparagraph shall be based on the development project at the time the application is deemed complete. The local government shall adjust the amount of density bonus and parking ratios awarded pursuant to this section based on any changes to the project during the course of development. (b) (1) A city, county, or city and county shall grant one density bonus, the amount of which shall be as specified in subdivision (f), and, if requested by the applicant and consistent with the applicable requirements of this section, incentives or concessions, as described in subdivision (d), waivers or reductions of development standards, as described in subdivision (e), and parking ratios, as described in subdivision (p), when an applicant for a housing development seeks and agrees to construct a housing development, excluding any units permitted by the density bonus awarded pursuant to this section, that will contain at least any one of the following: (A) Ten percent of the total units of a housing development for lower income households, as defined in Section 50079.5 of the Health and Safety Code. (B) Five percent of the total units of a housing development for very low income households, as defined in Section 50105 of the Health and Safety Code. (C) A senior citizen housing development, as defined in Sections 51.3 and 51.12 of the Civil Code, or a mobilehome park that limits residency based on age requirements for housing for older persons pursuant to Section 798.76 or 799.5 of the Civil Code. (D) Ten percent of the total dwelling units in a common interest development, as defined in Section 4100 of the Civil Code, for persons and families of moderate income, as defined in Section 50093 of the Health and Safety Code, provided that all units in the development are offered to the public for purchase. (E) Ten percent of the total units of a housing development for transitional foster youth, as defined in Section 66025.9 of the Education Code, disabled veterans, as defined in Section 18541, or homeless persons, as defined in the federal McKinney-Vento Homeless Assistance Act (42 U.S.C. Sec. 11301 et seq.). The units described in this subparagraph shall be subject to a recorded affordability restriction of 55 years and shall be provided at the same affordability level as very low income units. (F) (i) Twenty percent of the total units for lower income students in a student housing development that meets the following requirements: (I) All units in the student housing development will be used exclusively for undergraduate, graduate, or professional students enrolled full time at an institution of higher education accredited by the Western Association of Schools and Colleges or the Accrediting Commission for Community and Junior Colleges. In order to be eligible under this subclause, the developer shall, as a condition of receiving a certificate of occupancy, provide evidence to the city, county, or city or county that the developer has entered into an operating agreement or master lease with one or more institutions of higher education for the institution or institutions to occupy all units of the student housing development with students from that institution or institutions. An operating agreement or master lease entered into pursuant to this subclause is not violated or breached if, in Packet Pg. 241 Item 9 any subsequent year, there are not sufficient students enrolled in an institution of higher education to fill all units in the student housing development. (II) The applicable 20-percent units will be used for lower income students. For purposes of this clause, “lower income students” means students who have a household income and asset level that does not exceed the level for Cal Grant A or Cal Grant B award recipients as set forth in paragraph (1) of subdivision (k) of Section 69432.7 of the Education Code. The eligibility of a student under this clause shall be verified by an affidavit, award letter, or letter of eligibility provided by the institution of higher education that the student is enrolled in, as described in subclause (I), or by the California Student Aid Commission that the student receives or is eligible for financial aid, including an institutional grant or fee waiver, from the college or university, the California Student Aid Commission, or the federal government shall be sufficient to satisfy this subclause. (III) The rent provided in the applicable units of the development for lower income students shall be calculated at 30 percent of 65 percent of the area median income for a single-room occupancy unit type. (IV) The development will provide priority for the applicable affordable units for lower income students experiencing homelessness. A homeless service provider, as defined in paragraph (3) of subdivision (d) of Section 103577 of the Health and Safety Code, or institution of higher education that has knowledge of a person’s homeless status may verify a person’s status as homeless for purposes of this subclause. (ii) For purposes of calculating a density bonus granted pursuant to this subparagraph, the term “unit” as used in this section means one rental bed and its pro rata share of associated common area facilities. The units described in this subparagraph shall be subject to a recorded affordability restriction of 55 years. (2) For purposes of calculating the amount of the density bonus pursuant to subdivision (f), an applicant who requests a density bonus pursuant to this subdivision shall elect whether the bonus shall be awarded on the basis of subparagraph (A), (B), (C), (D), (E), or (F) of paragraph (1). (3) For the purposes of this section, “total units,” “total dwelling units,” or “total rental beds” does not include units added by a density bonus awarded pursuant to this section or any local law granting a greater density bonus. (c) (1) An applicant shall agree to, and the city, county, or city and county shall ensure, the continued affordability of all very low and low-income rental units that qualified the applicant for the award of the density bonus for 55 years or a longer period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program. Rents for the lower income density bonus units shall be set at an affordable rent as defined in Section 50053 of the Health and Safety Code. (2) An applicant shall agree to, and the city, county, or city and county shall ensure that, the initial occupant of all for-sale units that qualified the applicant for the award of the density bonus are persons and families of very low, low, or moderate income, as required, and that the units are offered at an affordable housing cost, as that cost is defined in Section 50052.5 of the Health and Safety Code. The local government shall enforce an equity sharing agreement, unless it is in conflict with the requirements of another public funding source or law. The following apply to the equity sharing agreement: Packet Pg. 242 Item 9 (A) Upon resale, the seller of the unit shall retain the value of any improvements, the downpayment, and the seller’s proportionate share of appreciation. The local government shall recapture any initial subsidy, as defined in subparagraph (B), and its proportionate share of appreciation, as defined in subparagraph (C), which amount shall be used within five years for any of the purposes described in subdivision (e) of Section 33334.2 of the Health and Safety Code that promote home ownership. (B) For purposes of this subdivision, the local government’s initial subsidy shall be equal to the fair market value of the home at the time of initial sale minus the initial sale price to the moderate- income household, plus the amount of any downpayment assistance or mortgage assistance. If upon resale the market value is lower than the initial market value, then the value at the time of the resale shall be used as the initial market value. (C) For purposes of this subdivision, the local government’s proportionate share of appreciation shall be equal to the ratio of the local government’s initial subsidy to the fair market value of the home at the time of initial sale. (3) (A) An applicant shall be ineligible for a density bonus or any other incentives or concessions under this section if the housing development is proposed on any property that includes a parcel or parcels on which rental dwelling units are or, if the dwelling units have been vacated or demolished in the five-year period preceding the application, have been subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of lower or very low income; subject to any other form of rent or price control through a public entity’s valid exercise of its police power; or occupied by lower or very low income households, unless the proposed housing development replaces those units, and either of the following applies: (i) The proposed housing development, inclusive of the units replaced pursuant to this paragraph, contains affordable units at the percentages set forth in subdivision (b). (ii) Each unit in the development, exclusive of a manager’s unit or units, is affordable to, and occupied by, either a lower or very low income household. (B) For the purposes of this paragraph, “replace” shall mean either of the following: (i) If any dwelling units described in subparagraph (A) are occupied on the date of application, the proposed housing development shall provide at least the same number of units of equivalent size to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as those households in occupancy. If the income category of the household in occupancy is not known, it shall be rebuttably presumed that lower income renter households occupied these units in the same proportion of lower income renter households to all renter households within the jurisdiction, as determined by the most recently available data from the United States Department of Housing and Urban Development’s Comprehensive Housing Affordability Strategy database. For unoccupied dwelling units described in subparagraph (A) in a development with occupied units, the proposed housing development shall provide units of equivalent size to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as the last household in occupancy. If the income category of the last household in occupancy is not known, it shall be rebuttably presumed that lower income renter households occupied these units in the same proportion of lower income renter households to all renter households within the jurisdiction, as determined by the most recently available data from the United States Department of Housing Packet Pg. 243 Item 9 and Urban Development’s Comprehensive Housing Affordability Strategy database. All replacement calculations resulting in fractional units shall be rounded up to the next whole number. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to paragraph (2). (ii) If all dwelling units described in subparagraph (A) have been vacated or demolished within the five-year period preceding the application, the proposed housing development shall provide at least the same number of units of equivalent size as existed at the highpoint of those units in the five-year period preceding the application to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as those persons and families in occupancy at that time, if known. If the incomes of the persons and families in occupancy at the highpoint is not known, it shall be rebuttably presumed that low- income and very low income renter households occupied these units in the same proportion of low-income and very low income renter households to all renter households within the jurisdiction, as determined by the most recently available data from the United States Department of Housing and Urban Development’s Comprehensive Housing Affordability Strategy database. All replacement calculations resulting in fractional units shall be rounded up to the next whole number. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to paragraph (2). (C) Notwithstanding subparagraph (B), for any dwelling unit described in subparagraph (A) that is or was, within the five-year period preceding the application, subject to a form of rent or price control through a local government’s valid exercise of its police power and that is or was occupied by persons or families above lower income, the city, county, or city and county may do either of the following: (i) Require that the replacement units be made available at affordable rent or affordable housing cost to, and occupied by, low-income persons or families. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to paragraph (2). (ii) Require that the units be replaced in compliance with the jurisdiction’s rent or price control ordinance, provided that each unit described in subparagraph (A) is replaced. Unless otherwise required by the jurisdiction’s rent or price control ordinance, these units shall not be subject to a recorded affordability restriction. (D) For purposes of this paragraph, “equivalent size” means that the replacement units contain at least the same total number of bedrooms as the units being replaced. (E) Subparagraph (A) does not apply to an applicant seeking a density bonus for a proposed housing development if his or her application was submitted to, or processed by, a city, county, or city and county before January 1, 2015. (d) (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 Packet Pg. 244 Item 9 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. (C) The concession or incentive would be contrary to state or federal law. (2) The applicant shall receive the following number of incentives or concessions: (A) One incentive or concession for projects that include at least 10 percent of the total units for lower income households, at least 5 percent for very low income households, or at least 10 percent for persons and families of moderate income in a common interest development. (B) Two incentives or concessions for projects that include at least 20 percent of the total units for lower income households, at least 10 percent for very low income households, or at least 20 percent for persons and families of moderate income in a common interest development. (C) Three incentives or concessions for projects that include at least 30 percent of the total units for lower income households, at least 15 percent for very low income households, or at least 30 percent for persons and families of moderate income in a common interest development. (3) The applicant may initiate judicial proceedings if the city, county, or city and county refuses to grant a requested density bonus, incentive, or concession. If a court finds that the refusal to grant a requested density bonus, incentive, or concession is in violation of this section, the court shall award the plaintiff reasonable attorney’s fees and costs of suit. Nothing in this subdivision shall be interpreted to require a local government to grant an incentive or concession that has a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon health, safety, or the physical environment, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. Nothing in this subdivision shall be interpreted to require a local government to grant an incentive or concession that would have an adverse impact on any real property that is listed in the California Register of Historical Resources. The city, county, or city and county shall establish procedures for carrying out this section, that shall include legislative body approval of the means of compliance with this section. (4) The city, county, or city and county shall bear the burden of proof for the denial of a requested concession or incentive. (e) (1) In no case may a city, county, or city and county apply any development standard that will have the effect of physically precluding the construction of a development meeting the criteria of subdivision (b) at the densities or with the concessions or incentives permitted by this section. An applicant may submit to a city, county, or city and county a proposal for the waiver or reduction of development standards that will have the effect of physically precluding the construction of a Packet Pg. 245 Item 9 development meeting the criteria of subdivision (b) at the densities or with the concessions or incentives permitted under this section, and may request a meeting with the city, county, or city and county. If a court finds that the refusal to grant a waiver or reduction of development standards is in violation of this section, the court shall award the plaintiff reasonable attorney’s fees and costs of suit. Nothing in this subdivision shall be interpreted to require a local government to waive or reduce development standards if the waiver or reduction would have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon health, safety, or the physical environment, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. Nothing in this subdivision shall be interpreted to require a local government to waive or reduce development standards that would have an adverse impact on any real property that is listed in the California Register of Historical Resources, or to grant any waiver or reduction that would be contrary to state or federal law. (2) A proposal for the waiver or reduction of development standards pursuant to this subdivision shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to subdivision (d). (f) For the purposes of this chapter, “density bonus” means a density increase over the otherwise maximum allowable gross residential density as of the date of application by the applicant to the city, county, or city and county, or, if elected by the applicant, a lesser percentage of density increase, including, but not limited to, no increase in density. The amount of density increase to which the applicant is entitled shall vary according to the amount by which the percentage of affordable housing units exceeds the percentage established in subdivision (b). (1) For housing developments meeting the criteria of subparagraph (A) of paragraph (1) of subdivision (b), the density bonus shall be calculated as follows: Percentage Low-Income Units Percentage Density Bonus 10 20 11 21.5 12 23 13 24.5 14 26 15 27.5 17 30.5 18 32 19 33.5 20 35 Packet Pg. 246 Item 9 (2) For housing developments meeting the criteria of subparagraph (B) of paragraph (1) of subdivision (b), the density bonus shall be calculated as follows: Percentage Very Low Income Units Percentage Density Bonus 5 20 6 22.5 7 25 8 27.5 9 30 10 32.5 11 35 (3) (A) For housing developments meeting the criteria of subparagraph (C) of paragraph (1) of subdivision (b), the density bonus shall be 20 percent of the number of senior housing units. (B) For housing developments meeting the criteria of subparagraph (E) of paragraph (1) of subdivision (b), the density bonus shall be 20 percent of the number of the type of units giving rise to a density bonus under that subparagraph. (C) For housing developments meeting the criteria of subparagraph (F) of paragraph (1) of subdivision (b), the density bonus shall be 35 percent of the student housing units. (4) For housing developments meeting the criteria of subparagraph (D) of paragraph (1) of subdivision (b), the density bonus shall be calculated as follows: Percentage Moderate-Income Units Percentage Density Bonus 10 5 11 6 12 7 13 8 14 9 15 10 16 11 17 12 Packet Pg. 247 Item 9 18 13 19 14 20 15 21 16 22 17 23 18 24 19 25 20 26 21 27 22 28 23 29 24 30 25 31 26 32 27 33 28 34 29 35 30 36 31 37 32 38 33 39 34 40 35 (5) All density calculations resulting in fractional units shall be rounded up to the next whole number. The granting of a density bonus shall not require, or be interpreted, in and of itself, to Packet Pg. 248 Item 9 require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval. (g) (1) When an applicant for a tentative subdivision map, parcel map, or other residential development approval donates land to a city, county, or city and county in accordance with this subdivision, the applicant shall be entitled to a 15-percent increase above the otherwise maximum allowable residential density for the entire development, as follows: Percentage Very Low Income Percentage Density Bonus 10 15 11 16 12 17 13 18 14 19 15 20 16 21 17 22 18 23 19 24 20 25 21 26 22 27 23 28 24 29 25 30 26 31 27 32 28 33 Packet Pg. 249 Item 9 29 34 30 35 (2) This increase shall be in addition to any increase in density mandated by subdivision (b), up to a maximum combined mandated density increase of 35 percent if an applicant seeks an increase pursuant to both this subdivision and subdivision (b). All density calculations resulting in fractional units shall be rounded up to the next whole number. Nothing in this subdivision shall be construed to enlarge or diminish the authority of a city, county, or city and county to require a developer to donate land as a condition of development. An applicant shall be eligible for the increased density bonus described in this subdivision if all of the following conditions are met: (A) The applicant donates and transfers the land no later than the date of approval of the final subdivision map, parcel map, or residential development application. (B) The developable acreage and zoning classification of the land being transferred are sufficient to permit construction of units affordable to very low income households in an amount not less than 10 percent of the number of residential units of the proposed development. (C) The transferred land is at least one acre in size or of sufficient size to permit development of at least 40 units, has the appropriate general plan designation, is appropriately zoned with appropriate development standards for development at the density described in paragraph (3) of subdivision (c) of Section 65583.2, and is or will be served by adequate public facilities and infrastructure. (D) The transferred land shall have all of the permits and approvals, other than building permits, necessary for the development of the very low income housing units on the transferred land, not later than the date of approval of the final subdivision map, parcel map, or residential development application, except that the local government may subject the proposed development to subsequent design review to the extent authorized by subdivision (i) of Section 65583.2 if the design is not reviewed by the local government before the time of transfer. (E) The transferred land and the affordable units shall be subject to a deed restriction ensuring continued affordability of the units consistent with paragraphs (1) and (2) of subdivision (c), which shall be recorded on the property at the time of the transfer. (F) The land is transferred to the local agency or to a housing developer approved by the local agency. The local agency may require the applicant to identify and transfer the land to the developer. (G) The transferred land shall be within the boundary of the proposed development or, if the local agency agrees, within one-quarter mile of the boundary of the proposed development. (H) A proposed source of funding for the very low income units shall be identified not later than the date of approval of the final subdivision map, parcel map, or residential development application. (h) (1) When an applicant proposes to construct a housing development that conforms to the requirements of subdivision (b) and includes a child care facility that will be located on the premises of, as part of, or adjacent to, the project, the city, county, or city and county shall grant either of the following: Packet Pg. 250 Item 9 (A) An additional density bonus that is an amount of square feet of residential space that is equal to or greater than the amount of square feet in the child care facility. (B) An additional concession or incentive that contributes significantly to the economic feasibility of the construction of the child care facility. (2) The city, county, or city and county shall require, as a condition of approving the housing development, that the following occur: (A) The child care facility shall remain in operation for a period of time that is as long as or longer than the period of time during which the density bonus units are required to remain affordable pursuant to subdivision (c). (B) Of the children who attend the child care facility, the children of very low income households, lower income households, or families of moderate income shall equal a percentage that is equal to or greater than the percentage of dwelling units that are required for very low income households, lower income households, or families of moderate income pursuant to subdivision (b). (3) Notwithstanding any requirement of this subdivision, a city, county, or city and county shall not be required to provide a density bonus or concession for a child care facility if it finds, based upon substantial evidence, that the community has adequate child care facilities. (4) “Child care facility,” as used in this section, means a child day care facility other than a family day care home, including, but not limited to, infant centers, preschools, extended day care facilities, and schoolage child care centers. (i) “Housing development,” as used in this section, means a development project for five or more residential units, including mixed-use developments. For the purposes of this section, “housing development” also includes a subdivision or common interest development, as defined in Section 4100 of the Civil Code, approved by a city, county, or city and county and consists of residential units or unimproved residential lots and either a project to substantially rehabilitate and convert an existing commercial building to residential use or the substantial rehabilitation of an existing multifamily dwelling, as defined in subdivision (d) of Section 65863.4, where the result of the rehabilitation would be a net increase in available residential units. For the purpose of calculating a density bonus, the residential units shall be on contiguous sites that are the subject of one development application, but do not have to be based upon individual subdivision maps or parcels. The density bonus shall be permitted in geographic areas of the housing development other than the areas where the units for the lower income households are located. (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. For purposes of this subdivision, “study” does not include reasonable documentation to establish eligibility for the concession or incentive or to demonstrate that the incentive or concession meets the definition set forth in subdivision (k). This provision is declaratory of existing law. (2) Except as provided in subdivisions (d) and (e), the granting of a density bonus shall not require or be interpreted to require the waiver of a local ordinance or provisions of a local ordinance unrelated to development standards. (k) For the purposes of this chapter, concession or incentive means any of the following: Packet Pg. 251 Item 9 (1) A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission as provided in Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code, including, but not limited to, a reduction in setback and square footage requirements and in the ratio of vehicular parking spaces that would otherwise be required that results in identifiable and actual cost reductions, 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). (2) Approval of mixed-use zoning in conjunction with the housing project if commercial, office, industrial, or other land uses will reduce the cost of the housing development and if the commercial, office, industrial, or other land uses are compatible with the housing project and the existing or planned development in the area where the proposed housing project will be located. (3) Other regulatory incentives or concessions proposed by the developer or the city, county, or city and county that result in identifiable and actual cost reductions 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). (l) Subdivision (k) does not limit or require the provision of direct financial incentives for the housing development, including the provision of publicly owned land, by the city, county, or city and county, or the waiver of fees or dedication requirements. (m) This section does not supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code). Any density bonus, concessions, incentives, waivers or reductions of development standards, and parking ratios to which the applicant is entitled under this section shall be permitted in a manner that is consistent with this section and Division 20 (commencing with Section 30000) of the Public Resources Code. (n) If permitted by local ordinance, nothing in this section shall be construed to prohibit a city, county, or city and county from granting a density bonus greater than what is described in this section for a development that meets the requirements of this section or from granting a proportionately lower density bonus than what is required by this section for developments that do not meet the requirements of this section. (o) For purposes of this section, the following definitions shall apply: (1) “Development standard” includes a site or construction condition, including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-space requirement, or a parking ratio that applies to a residential development pursuant to any ordinance, general plan element, specific plan, charter, or other local condition, law, policy, resolution, or regulation. (2) “Maximum allowable residential density” means the density allowed under the zoning ordinance and land use element of the general plan, or, if a range of density is permitted, means the maximum allowable density for the specific zoning range and land use element of the general plan applicable to the project. If the density allowed under the zoning ordinance is inconsistent with the density allowed under the land use element of the general plan, the general plan density shall prevail. (p) (1) Except as provided in paragraphs (2) and (3) upon the request of the developer, a city, county, or city and county shall not require a vehicular parking ratio, inclusive of handicapped and Packet Pg. 252 Item 9 guest parking, of a development meeting the criteria of subdivisions (b) and (c), that exceeds the following ratios: (A) Zero to one bedroom: one onsite parking space. (B) Two to three bedrooms: two onsite parking spaces. (C) Four and more bedrooms: two and one-half parking spaces. (2) Notwithstanding paragraph (1), if a development includes the maximum percentage of low- income or very low income units provided for in paragraphs (1) and (2) of subdivision (f) and is located within one-half mile of a major transit stop, as defined in subdivision (b) of Section 21155 of the Public Resources Code, and there is unobstructed access to the major transit stop from the development, then, upon the request of the developer, a city, county, or city and county shall not impose a vehicular parking ratio, inclusive of handicapped and guest parking, that exceeds 0.5 spaces per bedroom. For purposes of this subdivision, a development shall have unobstructed access to a major transit stop if a resident is able to access the major transit stop without encountering natural or constructed impediments. (3) Notwithstanding paragraph (1), if a development consists solely of rental units, exclusive of a manager’s unit or units, with an affordable housing cost to lower income families, as provided in Section 50052.5 of the Health and Safety Code, then, upon the request of the developer, a city, county, or city and county shall not impose a vehicular parking ratio, inclusive of handicapped and guest parking, that exceeds the following ratios: (A) If the development is located within one-half mile of a major transit stop, as defined in subdivision (b) of Section 21155 of the Public Resources Code, and there is unobstructed access to the major transit stop from the development, the ratio shall not exceed 0.5 spaces per unit. (B) If the development is a for-rent housing development for individuals who are 62 years of age or older that complies with Sections 51.2 and 51.3 of the Civil Code, the ratio shall not exceed 0.5 spaces per unit. The development shall have either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day. (C) If the development is a special needs housing development, as defined in Section 51312 of the Health and Safety Code, the ratio shall not exceed 0.3 spaces per unit. The development shall have either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day. (4) If the total number of parking spaces required for a development is other than a whole number, the number shall be rounded up to the next whole number. For purposes of this subdivision, a development may provide onsite parking through tandem parking or uncovered parking, but not through onstreet parking. (5) This subdivision shall apply to a development that meets the requirements of subdivisions (b) and (c), but only at the request of the applicant. An applicant may request parking incentives or concessions beyond those provided in this subdivision pursuant to subdivision (d). (6) This subdivision does not preclude a city, county, or city and county from reducing or eliminating a parking requirement for development projects of any type in any location. (7) Notwithstanding paragraphs (2) and (3), if a city, county, city and county, or an independent consultant has conducted an areawide or jurisdictionwide parking study in the last seven years, Packet Pg. 253 Item 9 then the city, county, or city and county may impose a higher vehicular parking ratio not to exceed the ratio described in paragraph (1), based upon substantial evidence found in the parking study, that includes, but is not limited to, an analysis of parking availability, differing levels of transit access, walkability access to transit services, the potential for shared parking, the effect of parking requirements on the cost of market-rate and subsidized developments, and the lower rates of car ownership for low-income and very low income individuals, including seniors and special needs individuals. The city, county, or city and county shall pay the costs of any new study. The city, county, or city and county shall make findings, based on a parking study completed in conformity with this paragraph, supporting the need for the higher parking ratio. (8) A request pursuant to this subdivision shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to subdivision (d). (q) Each component of any density calculation, including base density and bonus density, resulting in fractional units shall be separately rounded up to the next whole number. The Legislature finds and declares that this provision is declaratory of existing law. (r) This chapter shall be interpreted liberally in favor of producing the maximum number of total housing units. (Amended by Stats. 2018, Ch. 937, Sec. 1.3. (SB 1227) Effective January 1, 2019.) Packet Pg. 254 Item 9 GOVERNMENT CODE - GOV TITLE 7. PLANNING AND LAND USE [65000 - 66499.58] ( Heading of Title 7 amended by Stats. 1974, Ch. 1536. ) DIVISION 1. PLANNING AND ZONING [65000 - 66210] ( Heading of Division 1 added by Stats. 1974, Ch. 1536. ) CHAPTER 3. Local Planning [65100 - 65763] ( Chapter 3 repealed and added by Stats. 1965, Ch. 1880. ) ARTICLE 10.6. Housing Elements [65580 - 65589.8] ( Article 10.6 added by Stats. 1980, Ch. 1143. ) 65589.5. (a) (1) The Legislature finds and declares all of the following: (A) The lack of housing, including emergency shelters, is a critical problem that threatens the economic, environmental, and social quality of life in California. (B) California housing has become the most expensive in the nation. The excessive cost of the state’s housing supply is partially caused by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing. (C) Among the consequences of those actions are discrimination against low-income and minority households, lack of housing to support employment growth, imbalance in jobs and housing, reduced mobility, urban sprawl, excessive commuting, and air quality deterioration. (D) Many local governments do not give adequate attention to the economic, environmental, and social costs of decisions that result in disapproval of housing development projects, reduction in density of housing projects, and excessive standards for housing development projects. (2) In enacting the amendments made to this section by the act adding this paragraph, the Legislature further finds and declares the following: (A) California has a housing supply and affordability crisis of historic proportions. The consequences of failing to effectively and aggressively confront this crisis are hurting millions of Californians, robbing future generations of the chance to call California home, stifling economic opportunities for workers and businesses, worsening poverty and homelessness, and undermining the state’s environmental and climate objectives. (B) While the causes of this crisis are multiple and complex, the absence of meaningful and effective policy reforms to significantly enhance the approval and supply of housing affordable to Californians of all income levels is a key factor. (C) The crisis has grown so acute in California that supply, demand, and affordability fundamentals are characterized in the negative: underserved demands, constrained supply, and protracted unaffordability. Packet Pg. 255 Item 9 (D) According to reports and data, California has accumulated an unmet housing backlog of nearly 2,000,000 units and must provide for at least 180,000 new units annually to keep pace with growth through 2025. (E) California’s overall homeownership rate is at its lowest level since the 1940s. The state ranks 49th out of the 50 states in homeownership rates as well as in the supply of housing per capita. Only one-half of California’s households are able to afford the cost of housing in their local regions. (F) Lack of supply and rising costs are compounding inequality and limiting advancement opportunities for many Californians. (G) The majority of California renters, more than 3,000,000 households, pay more than 30 percent of their income toward rent and nearly one-third, more than 1,500,000 households, pay more than 50 percent of their income toward rent. (H) When Californians have access to safe and affordable housing, they have more money for food and health care; they are less likely to become homeless and in need of government-subsidized services; their children do better in school; and businesses have an easier time recruiting and retaining employees. (I) An additional consequence of the state’s cumulative housing shortage is a significant increase in greenhouse gas emissions caused by the displacement and redirection of populations to states with greater housing opportunities, particularly working- and middle-class households. California’s cumulative housing shortfall therefore has not only national but international environmental consequences. (J) California’s housing picture has reached a crisis of historic proportions despite the fact that, for decades, the Legislature has enacted numerous statutes intended to significantly increase the approval, development, and affordability of housing for all income levels, including this section. (K) The Legislature’s intent in enacting this section in 1982 and in expanding its provisions since then was to significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects and emergency shelters. That intent has not been fulfilled. (L) It is the policy of the state that this section should be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing. (3) It is the intent of the Legislature that the conditions that would have a specific, adverse impact upon the public health and safety, as described in paragraph (2) of subdivision (d) and paragraph (1) of subdivision (j), arise infrequently. (b) It is the policy of the state that a local government not reject or make infeasible housing development projects, including emergency shelters, that contribute to meeting the need determined pursuant to this article without a thorough analysis of the economic, social, and environmental effects of the action and without complying with subdivision (d). (c) The Legislature also recognizes that premature and unnecessary development of agricultural lands for urban uses continues to have adverse effects on the availability of those lands for food and fiber production and on the economy of the state. Furthermore, it is the policy of the state that development should be guided away from prime agricultural lands; therefore, in implementing this Packet Pg. 256 Item 9 section, local jurisdictions should encourage, to the maximum extent practicable, in filling existing urban areas. (d) A local agency shall not disapprove a housing development project, including farmworker housing as defined in subdivision (h) of Section 50199.7 of the Health and Safety Code, for very low, low-, or moderate-income households, or an emergency shelter, or condition approval in a manner that renders the housing development project infeasible for development for the use of very low, low-, or moderate-income households, or an emergency shelter, including through the use of design review standards, unless it makes written findings, based upon a preponderance of the evidence in the record, as to one of the following: (1) The jurisdiction has adopted a housing element pursuant to this article that has been revised in accordance with Section 65588, is in substantial compliance with this article, and the jurisdiction has met or exceeded its share of the regional housing need allocation pursuant to Section 65584 for the planning period for the income category proposed for the housing development project, provided that any disapproval or conditional approval shall not be based on any of the reasons prohibited by Section 65008. If the housing development project includes a mix of income categories, and the jurisdiction has not met or exceeded its share of the regional housing need for one or more of those categories, then this paragraph shall not be used to disapprove or conditionally approve the housing development project. The share of the regional housing need met by the jurisdiction shall be calculated consistently with the forms and definitions that may be adopted by the Department of Housing and Community Development pursuant to Section 65400. In the case of an emergency shelter, the jurisdiction shall have met or exceeded the need for emergency shelter, as identified pursuant to paragraph (7) of subdivision (a) of Section 65583. Any disapproval or conditional approval pursuant to this paragraph shall be in accordance with applicable law, rule, or standards. (2) The housing development project or emergency shelter as proposed would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible. As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. Inconsistency with the zoning ordinance or general plan land use designation shall not constitute a specific, adverse impact upon the public health or safety. (3) The denial of the housing development project or imposition of conditions is required in order to comply with specific state or federal law, and there is no feasible method to comply without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible. (4) The housing development project or emergency shelter is proposed on land zoned for agriculture or resource preservation that is surrounded on at least two sides by land being used for agricultural or resource preservation purposes, or which does not have adequate water or wastewater facilities to serve the project. (5) The housing development project or emergency shelter is inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation as specified in any element of the general plan as it existed on the date the application was deemed complete, and the Packet Pg. 257 Item 9 jurisdiction has adopted a revised housing element in accordance with Section 65588 that is in substantial compliance with this article. For purposes of this section, a change to the zoning ordinance or general plan land use designation subsequent to the date the application was deemed complete shall not constitute a valid basis to disapprove or condition approval of the housing development project or emergency shelter. (A) This paragraph cannot be utilized to disapprove or conditionally approve a housing development project if the housing development project is proposed on a site that is identified as suitable or available for very low, low-, or moderate-income households in the jurisdiction’s housing element, and consistent with the density specified in the housing element, even though it is inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation. (B) If the local agency has failed to identify in the inventory of land in its housing element sites that can be developed for housing within the planning period and are sufficient to provide for the jurisdiction’s share of the regional housing need for all income levels pursuant to Section 65584, then this paragraph shall not be utilized to disapprove or conditionally approve a housing development project proposed for a site designated in any element of the general plan for residential uses or designated in any element of the general plan for commercial uses if residential uses are permitted or conditionally permitted within commercial designations. In any action in court, the burden of proof shall be on the local agency to show that its housing element does identify adequate sites with appropriate zoning and development standards and with services and facilities to accommodate the local agency’s share of the regional housing need for the very low, low-, and moderate-income categories. (C) If the local agency has failed to identify a zone or zones where emergency shelters are allowed as a permitted use without a conditional use or other discretionary permit, has failed to demonstrate that the identified zone or zones include sufficient capacity to accommodate the need for emergency shelter identified in paragraph (7) of subdivision (a) of Section 65583, or has failed to demonstrate that the identified zone or zones can accommodate at least one emergency shelter, as required by paragraph (4) of subdivision (a) of Section 65583, then this paragraph shall not be utilized to disapprove or conditionally approve an emergency shelter proposed for a site designated in any element of the general plan for industrial, commercial, or multifamily residential uses. In any action in court, the burden of proof shall be on the local agency to show that its housing element does satisfy the requirements of paragraph (4) of subdivision (a) of Section 65583. (e) Nothing in this section shall be construed to relieve the local agency from complying with the congestion management program required by Chapter 2.6 (commencing with Section 65088) of Division 1 of Title 7 or the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code). Neither shall anything in this section be construed to relieve the local agency from making one or more of the findings required pursuant to Section 21081 of the Public Resources Code or otherwise complying with the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code). (f) (1) Nothing in this section shall be construed to prohibit a local agency from requiring the housing development project to comply with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the jurisdiction’s share of the regional housing need pursuant to Section 65584. However, the development standards, conditions, and policies shall be applied to facilitate and accommodate development at the density permitted on the site and proposed by the development. Packet Pg. 258 Item 9 (2) Nothing in this section shall be construed to prohibit a local agency from requiring an emergency shelter project to comply with objective, quantifiable, written development standards, conditions, and policies that are consistent with paragraph (4) of subdivision (a) of Section 65583 and appropriate to, and consistent with, meeting the jurisdiction’s need for emergency shelter, as identified pursuant to paragraph (7) of subdivision (a) of Section 65583. However, the development standards, conditions, and policies shall be applied by the local agency to facilitate and accommodate the development of the emergency shelter project. (3) This section does not prohibit a local agency from imposing fees and other exactions otherwise authorized by law that are essential to provide necessary public services and facilities to the housing development project or emergency shelter. (4) For purposes of this section, a housing development project or emergency shelter shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project or emergency shelter is consistent, compliant, or in conformity. (g) This section shall be applicable to charter cities because the Legislature finds that the lack of housing, including emergency shelter, is a critical statewide problem. (h) The following definitions apply for the purposes of this section: (1) “Feasible” means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors. (2) “Housing development project” means a use consisting of any of the following: (A) Residential units only. (B) Mixed-use developments consisting of residential and nonresidential uses with at least two- thirds of the square footage designated for residential use. (C) Transitional housing or supportive housing. (3) “Housing for very low, low-, or moderate-income households” means that either (A) at least 20 percent of the total units shall be sold or rented to lower income households, as defined in Section 50079.5 of the Health and Safety Code, or (B) 100 percent of the units shall be sold or rented to persons and families of moderate income as defined in Section 50093 of the Health and Safety Code, or persons and families of middle income, as defined in Section 65008 of this code. Housing units targeted for lower income households shall be made available at a monthly housing cost that does not exceed 30 percent of 60 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the lower income eligibility limits are based. Housing units targeted for persons and families of moderate income shall be made available at a monthly housing cost that does not exceed 30 percent of 100 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the moderate-income eligibility limits are based. (4) “Area median income” means area median income as periodically established by the Department of Housing and Community Development pursuant to Section 50093 of the Health and Safety Code. The developer shall provide sufficient legal commitments to ensure continued availability of units for very low or low-income households in accordance with the provisions of this subdivision for 30 years. Packet Pg. 259 Item 9 (5) “Disapprove the housing development project” includes any instance in which a local agency does either of the following: (A) Votes on a proposed housing development project application and the application is disapproved, including any required land use approvals or entitlements necessary for the issuance of a building permit. (B) Fails to comply with the time periods specified in subdivision (a) of Section 65950. An extension of time pursuant to Article 5 (commencing with Section 65950) shall be deemed to be an extension of time pursuant to this paragraph. (i) If any city, county, or city and county denies approval or imposes conditions, including design changes, lower density, or a reduction of the percentage of a lot that may be occupied by a building or structure under the applicable planning and zoning in force at the time the application is deemed complete pursuant to Section 65943, that have a substantial adverse effect on the viability or affordability of a housing development for very low, low-, or moderate-income households, and the denial of the development or the imposition of conditions on the development is the subject of a court action which challenges the denial or the imposition of conditions, then the burden of proof shall be on the local legislative body to show that its decision is consistent with the findings as described in subdivision (d) and that the findings are supported by a preponderance of the evidence in the record. For purposes of this section, “lower density” includes any conditions that have the same effect or impact on the ability of the project to provide housing. (j) (1) When a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the housing development project’s application is determined to be complete, but the local agency proposes to disapprove the project or to impose a condition that the project be developed at a lower density, the local agency shall base its decision regarding the proposed housing development project upon written findings supported by a preponderance of the evidence on the record that both of the following conditions exist: (A) The housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density. As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. (B) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density. (2) (A) If the local agency considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision as specified in this subdivision, it shall provide the applicant with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity as follows: Packet Pg. 260 Item 9 (i) Within 30 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains 150 or fewer housing units. (ii) Within 60 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains more than 150 units. (B) If the local agency fails to provide the required documentation pursuant to subparagraph (A), the housing development project shall be deemed consistent, compliant, and in conformity with the applicable plan, program, policy, ordinance, standard, requirement, or other similar provision. (3) For purposes of this section, the receipt of a density bonus pursuant to Section 65915 shall not constitute a valid basis on which to find a proposed housing development project is inconsistent, not in compliance, or not in conformity, with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision specified in this subdivision. (4) For purposes of this section, a proposed housing development project is not inconsistent with the applicable zoning standards and criteria, and shall not require a rezoning, if the housing development project is consistent with the objective general plan standards and criteria but the zoning for the project site is inconsistent with the general plan. If the local agency has complied with paragraph (2), the local agency may require the proposed housing development project to comply with the objective standards and criteria of the zoning which is consistent with the general plan, however, the standards and criteria shall be applied to facilitate and accommodate development at the density allowed on the site by the general plan and proposed by the proposed housing development project. (5) For purposes of this section, “lower density” includes any conditions that have the same effect or impact on the ability of the project to provide housing. (k) (1) (A) The applicant, a person who would be eligible to apply for residency in the development or emergency shelter, or a housing organization may bring an action to enforce this section. If, in any action brought to enforce this section, a court finds that either (i) the local agency, in violation of subdivision (d), disapproved a housing development project or conditioned its approval in a manner rendering it infeasible for the development of an emergency shelter, or housing for very low, low-, or moderate-income households, including farmworker housing, without making the findings required by this section or without making findings supported by a preponderance of the evidence, or (ii) the local agency, in violation of subdivision (j), disapproved a housing development project complying with applicable, objective general plan and zoning standards and criteria, or imposed a condition that the project be developed at a lower density, without making the findings required by this section or without making findings supported by a preponderance of the evidence, the court shall issue an order or judgment compelling compliance with this section within 60 days, including, but not limited to, an order that the local agency take action on the housing development project or emergency shelter. The court may issue an order or judgment directing the local agency to approve the housing development project or emergency shelter if the court finds that the local agency acted in bad faith when it disapproved or conditionally approved the housing development or emergency shelter in violation of this section. The court shall retain jurisdiction to ensure that its order or judgment is carried out and shall award reasonable attorney’s fees and costs of suit to the plaintiff or petitioner, except under extraordinary circumstances in which the court finds that awarding fees would not further the purposes of this Packet Pg. 261 Item 9 section. For purposes of this section, “lower density” includes conditions that have the same effect or impact on the ability of the project to provide housing. (B) (i) Upon a determination that the local agency has failed to comply with the order or judgment compelling compliance with this section within 60 days issued pursuant to subparagraph (A), the court shall impose fines on a local agency that has violated this section and require the local agency to deposit any fine levied pursuant to this subdivision into a local housing trust fund. The local agency may elect to instead deposit the fine into the Building Homes and Jobs Fund, if Senate Bill 2 of the 2017–18 Regular Session is enacted, or otherwise in the Housing Rehabilitation Loan Fund. The fine shall be in a minimum amount of ten thousand dollars ($10,000) per housing unit in the housing development project on the date the application was deemed complete pursuant to Section 65943. In determining the amount of fine to impose, the court shall consider the local agency’s progress in attaining its target allocation of the regional housing need pursuant to Section 65584 and any prior violations of this section. Fines shall not be paid out of funds already dedicated to affordable housing, including, but not limited to, Low and Moderate Income Housing Asset Funds, funds dedicated to housing for very low, low-, and moderate-income households, and federal HOME Investment Partnerships Program and Community Development Block Grant Program funds. The local agency shall commit and expend the money in the local housing trust fund within five years for the sole purpose of financing newly constructed housing units affordable to extremely low, very low, or low-income households. After five years, if the funds have not been expended, the money shall revert to the state and be deposited in the Building Homes and Jobs Fund, if Senate Bill 2 of the 2017–18 Regular Session is enacted, or otherwise in the Housing Rehabilitation Loan Fund, for the sole purpose of financing newly constructed housing units affordable to extremely low, very low, or low-income households. (ii) If any money derived from a fine imposed pursuant to this subparagraph is deposited in the Housing Rehabilitation Loan Fund, then, notwithstanding Section 50661 of the Health and Safety Code, that money shall be available only upon appropriation by the Legislature. (C) If the court determines that its order or judgment has not been carried out within 60 days, the court may issue further orders as provided by law to ensure that the purposes and policies of this section are fulfilled, including, but not limited to, an order to vacate the decision of the local agency and to approve the housing development project, in which case the application for the housing development project, as proposed by the applicant at the time the local agency took the initial action determined to be in violation of this section, along with any standard conditions determined by the court to be generally imposed by the local agency on similar projects, shall be deemed to be approved unless the applicant consents to a different decision or action by the local agency. (2) For purposes of this subdivision, “housing organization” means a trade or industry group whose local members are primarily engaged in the construction or management of housing units or a nonprofit organization whose mission includes providing or advocating for increased access to housing for low-income households and have filed written or oral comments with the local agency prior to action on the housing development project. A housing organization may only file an action pursuant to this section to challenge the disapproval of a housing development by a local agency. A housing organization shall be entitled to reasonable attorney’s fees and costs if it is the prevailing party in an action to enforce this section. (l) If the court finds that the local agency (1) acted in bad faith when it disapproved or conditionally approved the housing development or emergency shelter in violation of this section and (2) failed Packet Pg. 262 Item 9 to carry out the court’s order or judgment within 60 days as described in subdivision (k), the court, in addition to any other remedies provided by this section, shall multiply the fine determined pursuant to subparagraph (B) of paragraph (1) of subdivision (k) by a factor of five. For purposes of this section, “bad faith” includes, but is not limited to, an action that is frivolous or otherwise entirely without merit. (m) Any action brought to enforce the provisions of this section shall be brought pursuant to Section 1094.5 of the Code of Civil Procedure, and the local agency shall prepare and certify the record of proceedings in accordance with subdivision (c) of Section 1094.6 of the Code of Civil Procedure no later than 30 days after the petition is served, provided that the cost of preparation of the record shall be borne by the local agency, unless the petitioner elects to prepare the record as provided in subdivision (n) of this section. A petition to enforce the provisions of this section shall be filed and served no later than 90 days from the later of (1) the effective date of a decision of the local agency imposing conditions on, disapproving, or any other final action on a housing development project or (2) the expiration of the time periods specified in subparagraph (B) of paragraph (5) of subdivision (h). Upon entry of the trial court’s order, a party may, in order to obtain appellate review of the order, file a petition within 20 days after service upon it of a written notice of the entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow, or may appeal the judgment or order of the trial court under Section 904.1 of the Code of Civil Procedure. If the local agency appeals the judgment of the trial court, the local agency shall post a bond, in an amount to be determined by the court, to the benefit of the plaintiff if the plaintiff is the project applicant. (n) In any action, the record of the proceedings before the local agency shall be filed as expeditiously as possible and, notwithstanding Section 1094.6 of the Code of Civil Procedure or subdivision (m) of this section, all or part of the record may be prepared (1) by the petitioner with the petition or petitioner’s points and authorities, (2) by the respondent with respondent’s points and authorities, (3) after payment of costs by the petitioner, or (4) as otherwise directed by the court. If the expense of preparing the record has been borne by the petitioner and the petitioner is the prevailing party, the expense shall be taxable as costs. (o) This section shall be known, and may be cited, as the Housing Accountability Act. (Amended by Stats. 2018, Ch. 243, Sec. 1. (AB 3194) Effective January 1, 2019.) Packet Pg. 263 Item 9 City of San Luis Obispo March 2015 Zoning Regulations Page 231 Chapter 17.90: Affordable Housing Incentives Sections: 17.90.010 Purpose. 17.90.020 Definitions. 17.90.030 Application process for incentives 17.90.040 Standard incentives for housing projects. 17.90.050 Standard incentives for conversion of apartments to condominium projects. 17.90.060 Alternative or additional incentives. 17.90.070 Relationship to other city procedures. 17.90.080 Agreements for affordable housing. 17.90.090 Fees. 17.90.100 Affordability standards. 17.90.110 Occupant screening. 17.90.010 Purpose. The purpose and intent of this chapter is to encourage housing projects which incorporate units affordable to very-low, lower, and moderate income households, and qualifying seniors or the donation of land for affordable housing within the city, and which conform to city development policies and standards, by providing density bonuses, or other equivalent incentives, as required by California Government Code Section 65915, et seq. (Ord. 1282 § 2, 1995; Ord. 1035 § 1 (part), 1985) This chapter is a summary of California Government Code Section 65915-65918. Where there is a conflict between the State density bonus law and the zoning regulations, the State density bonus law shall prevail. 17.90.20 Definitions. A. “Affordable" shall mean residential rent costs or sales prices which conform to the standards issued by the director and updated periodically to reflect state and/or federal housing cost indices. (Ord. 1282 § 2, 1995; Ord. 1035 § 1 (part), 1985) B. “Common interest development” means any of the following: a community apartment project, a condominium project, a planned development, a stock cooperative set forth in Civil Code Section 1351. C. "Density" means residential density as defined in Section 17.16.010 of this code. As an example, a two-bedroom dwelling = 1.00 density units. D. "Density bonus" means a density increase over the maximum density otherwise allowable under the Zoning Regulations and Land Use Element of the General Plan. E. "Director" means the community development director or his or her authorized representative. F. “Housing development” means a development project for five (5) or more residential units, also includes a subdivision or common interest development. Packet Pg. 264 Item 9 City of San Luis Obispo Zoning Regulations March 2015 Page 232 G. "Lower income households" shall have the meaning set forth in California Health and Safety Code, Section 50079.5; provided the income of such persons and families whose incomes exceed fifty (50) percent but are less than or equal to eighty (80) percent of the median income within the county. H. “Maximum allowable residential density” means the maximum density allowed under the Zoning Regulations and Land Use Element of the General Plan. I. "Moderate income households" shall have the meaning set for in California Health and Safety Code Section 50093; provided the income of such persons and families whose incomes exceed eighty (80) percent but are less than or equal to one hundred twenty (120) percent of the median income within the county. J. “Senior citizen housing development” means a residential development developed, substantially rehabilitated, or substantially renovated for senior citizens (55 years or older) that has at least thirty-five (35) dwelling units. K. "Very-low income households" shall have the meaning set forth in California Health and Safety Code, Section 50105; provided the income of such persons and families whose incomes exceed thirty (30) percent but are less than or equal to fifty (50) percent of the median income within the county. 17.90.030 Application process for incentive A. The developer may submit a preliminary proposal for the development of affordable housing prior to the submittal of any formal requests for general plan amendments, zoning amendments or subdivision map approvals. The city council shall, within ninety days of receiving a written preliminary proposal, notify the housing developer in writing of the procedures under which the city will comply with this chapter. B. Any request for a density bonus or other incentives shall be in writing, and shall include the following information, as well as any additional information required by the director: 1. The name of the developer; 2. The location of the proposed project; 3. The density allowed under the zoning regulations, as well as the proposed density; 4. The number and type (bedroom count) of dwellings and identification of those dwellings which are to be affordable to each household income category; 5. Whether the dwellings will be offered for sale or for rent; 6. The proposed sales price, financing terms, rental rates or other factors which will make the dwellings affordable to very-low, lower and moderate income households. (Ord. 1282 § 2, 1995; Ord. 1035 § 1 (part), 1985) Packet Pg. 265 Item 9 City of San Luis Obispo March 2015 Zoning Regulations Page 233 17.90.040 Standard incentives for housing projects. A. This section shall apply only to housing projects consisting of five (5) or more dwelling units. Per state law, projects that provide affordable housing are allowed up to a 35% density bonus based on the tables outlined below for the respective affordability levels. In addition, the City Council may approve a density bonus in excess of 35% at the request of the developer as well as other concessions and incentives outlined in sections 17.90.060. B. All density calculations resulting in fractional units shall be rounded up to the next whole number. C. For the purpose of this section, “total units” or “total dwelling units” does not include units added by a density bonus awarded pursuant to this section or any local law granting a greater density bonus. D. Ten Percent Low Income Dedication. When a developer agrees to construct ten (10) percent of the total units of a housing development for persons or families of lower income, the director shall grant the developer, upon the developer’s request, a density bonus, the density bonus shall be calculated as follows: Percentage Low- Income Units Percentage Density Bonus 10 20 11 21.5 12 23 13 24.5 14 26 15 27.5 17 30.5 18 32 19 33.5 20 35 E. Five Percent Very-Low Income Dedication. When a developer agrees to construct at least five (5) percent of the total units of a housing development for very-low income households, the director shall grant the developer, upon the developer’s request, a density bonus, the density bonus shall be calculated as follows: Percentage Very Low- Income Units Percentage Density Bonus 5 20 6 22.5 7 25 8 27.5 9 30 10 32.5 11 35 Packet Pg. 266 Item 9 City of San Luis Obispo Zoning Regulations March 2015 Page 234 F. Twenty Percent Senior Citizen Housing Development Dedication. When a developer agrees to construct a senior citizen housing development, or mobile home park that limits residency based on age requirements for housing for older persons, the director shall grant the developer, upon the developer’s request, a density bo nus, the density bonus shall be twenty (20) percent of the number of senior housing units. G. Ten Percent Common Interest Development for Moderate Income Dedication. If a developer agrees to construct ten (10) percent of the total dwelling units in a common interest development for persons or families of moderate income, provided that all units in the development are offered to the public for purchase, the director shall grant the developer, upon the developer’s request, a density bonus, the density bonus sh all be calculated as follows: Percentage Moderate- Income Units Percentage Density Bonus 10 5 11 6 12 7 13 8 14 9 15 10 16 11 17 12 18 13 19 14 20 15 21 16 22 17 23 18 24 19 25 20 26 21 27 22 28 23 29 24 30 25 31 26 32 27 33 28 34 29 35 30 36 31 37 32 38 33 39 34 40 35 Packet Pg. 267 Item 9 City of San Luis Obispo March 2015 Zoning Regulations Page 235 H. Land Donation Dedication. If a developer for a tentative subdivision map, parcel map, or other residential development approval donates land to the city for affordable housing in accordance with this chapter and the provisions set forth in California Government Code Section 65915-65918, the applicant shall be entitled to a fifteen (15) percent increase above the otherwise maximum allowable residential density for the entire development, the director shall grant the applicant, upon the applicant’s request, a density bonus, the density bonus shall be calculated as follows: Percentage Very Low- Income Units Percentage Density Bonus 10 15 11 16 12 17 13 18 14 19 15 20 16 21 17 22 18 23 19 24 20 25 21 26 22 27 23 28 24 29 25 30 26 31 27 32 28 33 29 34 30 35 I. An applicant may elect to accept a lesser percentage of density bonus. K. Parking Requirements. Upon the request of the developer, parking ratios of a development meeting the criteria of this section, inclusive of handicapped and guest parking, shall be as follows: 1. Studio to one bedroom: one onsite parking space. 2. Two to three bedrooms: two onsite parking spaces. 3. Four or more bedrooms: two and one-half parking spaces. a. If the total number of parking spaces required for a development is other than a whole number, the number shall be rounded up to the next whole number. Packet Pg. 268 Item 9 City of San Luis Obispo Zoning Regulations March 2015 Page 236 b. For purposes of this section, a development may provide onsite parking through tandem or uncovered parking, but not through on street parking. c. An applicant may request additional parking incentives or concessions beyond those provided in this section, subject to section 17.90.060. 17.90.050 Standard incentives for conversion of apartments to condominium projects. A. For the purposes of this section, “other incentives of equivalent financial value” shall not be construed to require the city to provide cash transfer payments or other monetary compensations but may include the reduction or waiver of requirements which the city might otherwise apply as conditions of conversion approval. B. For purposes of this section, “density bonus” means an increase in units of twenty-five percent over the number of apartments, to be provided within the existing structure or structures proposed for conversion. C. When an applicant for approval to convert apartments to condominium units agrees to provide at least thirty-three percent of the total units of the proposed condominium project to persons and families of low or moderate income, or fifteen percent of the total units of the proposed condominium project to lower income households, and agrees to pay for the reasonable, necessary administrative costs incurred by the city pursuant to this section, the director shall grant a density bonus or provide other incentives of equivalent financial value as it finds appropriate. D. Nothing in this section shall be construed to require the city to approve a proposal to convert apartments to condominiums. E. An applicant shall not be eligible for a density bonus under this section if the apartments proposed for conversion constitute a housing development for which a density bonus or other incentives were provided under Sections 17.90.040 or 17.90.060 of this chapter. F. The city shall grant the developer’s request for development incentive(s) unless the city council makes written findings of fact that the additional incentive(s) are not required to achieve affordable housing objectives as defined in Section 50062.5 of the Health and Safety Code, or to ensure that sales prices for the targeted dwelling units will be set and maintained in conformance with city affordable housing standards. (Ord. 1282 § 2, 1995; Ord. 1035 § 1 (part), 1985) 17.90.060 Alternative or additional incentives. A. When a developer agrees to construct housing for households of very-low, lower or moderate income households, or for qualifying senior households, and desires an incentive other than a density bonus as provided in Section 17.90.040 of this chapter, or when an applicant for approval to convert apartments to a condominium project agrees to provide housing for households of very low, lower, or moderate income, or for qualifying senior households, the developer shall receive the following number of incentives or concessions: Packet Pg. 269 Item 9 City of San Luis Obispo March 2015 Zoning Regulations Page 237 1. One incentive or concession for housing developments that include at least ten (10) percent of the total units for lower income households, at least five (5) percent for very-low income households, or at least ten (10) percent for persons and families of moderate income in a common interest development. 2. Two incentives or concessions for housing developments that include at least twenty (20) percent of the total units for lower income households, at least ten (10) percent for very-low income households, or at least twenty (20) percent for persons and families of moderate income in a common interest development. 3. Three incentives or concessions for housing developments that include at least thirty (30) percent of the total units for lower income households, at least fifteen (15) for very-low income households, or at least thirty (30) percent for persons and families of moderate income in a common interest development. B. Alternative incentive proposals shall include information set forth in Section 17.90.030 (B) as well as a description of the requested incentive, an estimate of the incentive’s financial value in comparison with the financial value of the density bonus allowed in Section 17.90.040, as well as the basis for the comparison estimate. Alternative incentive proposals shall be considered by the council and may include but are not limited to one or more of the following: 1. A reduction in site development standards or modification of zoning code requirements or architectural design requirements that exceeds the minimum building standards approved by the California Building Standards Commission as provided in Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code, including, but not limited to, a reduction in setback and square footage requirements and in the ratio of vehicular parking spaces that would otherwise be required that results in identifiable, financially sufficient, and actual cost reductions. 2. Approval of mixed use zoning in conjunction with the housing project if commercial, office, industrial, or other land use will reduce the cost of the housing development and if the commercial, office, industrial, or other land uses are compatible with the housing project and the existing or planned development in the area where the proposed housing project will be located. 3. Density bonus in excess of that provided in Section 17.90.040; 4. Waiver of application and development review processing fees; 5. Waiver of utility connection or park land in-lieu fees or park land dedication requirement; 6. City funded installation of off-site improvements which may be required for the project, such as streets or utility lines; 7. Write-down of land costs; 8. Direct subsidy of construction costs or construction financing costs; 9. Other regulatory incentives or concessions proposed by the developer or the city Packet Pg. 270 Item 9 City of San Luis Obispo Zoning Regulations March 2015 Page 238 that result in identifiable, financially sufficient, and actual cost reductions shall also include provisions for assuring continued availability of designated units at affordable rents or sales prices for a period of not less than thirty (30) years, or as otherwise required by state law. C. Proposals for approval to convert apartments to a condominium project shall include those relevant items set forth in Section 17.90.030.(B) plus the requested incentive, an estimate if the incentive’s financial value in comparison with the financial value of the density bonus as set forth in Section 17.90.050, and the basis for the comparison estimate. Nothing in this section shall be construed to require the city to provide cash transfer payments or other monetary compensation. The city may reduce or waive requirements which the city might otherwise apply as conditions of conversion approval. D. Nothing in this section shall be construed to require the council to approve any alternative incentive or concession The council shall approve the requisite number of incentives or concessions afforded by Section 17.90.060. However, the details surrounding the incentives or concessions shall be at the discretion of the council. E. The council action on any alternative incentive proposal shall be by resolution. Any such resolution shall include findings relating to the information required in subpart B or D of this section. 17.90.070 Relationship to other city procedures. A. Projects incorporating affordable housing and receiving density bonuses, incentives, or alternative incentives as provided in this chapter shall receive high priority processing, to the extent allowed by law. Operation of Sections 17.90.040 or 17.90.050, or approval of alternative incentives as provided in Section 17.90.060 shall not be construed as a waiver of standard development review procedures or an exemption of the project from city development standards other than those explicitly listed in the approving resolution. Should a project fail to receive any required city approval, the density bonus or alternative incentive granted under this chapter shall be null and void. B. Applications of Sections 17.90.040 and 17.90.050 to projects shall be ministerial acts for purposes of environmental review. Environmental documents need not be filed solely for recordation of agreements concerning the density bonus and provision of affordable housing. Normal environmental review procedures shall apply to the project applications. C. If the council approves an alternative incentive as provided in Section 17.90.060, such approval shall be subject to and conditioned upon an environmental determination being made for the project in the usual manner. The community development department shall outline for the council any probable, significant environmental effects which would result from the proposed incentive. (Ord. 1282 § 2, 1995; Ord. 1035 § 1 (part), 1985) 17.90.080 Agreements for affordable housing. Prior to the issuance of construction permits for any project incorporating a density bonus or other incentive as provided in this chapter, the city and the project owner(s) shall enter Packet Pg. 271 Item 9 City of San Luis Obispo March 2015 Zoning Regulations Page 239 into an agreement in a form acceptable to the city attorney, to be recorded in the office of the county recorder. The agreement shall specify mechanisms or procedures to assure the continued affordability and availability of the specified number of dwelling units to very-low, lower, and moderate income households and/or qualifying seniors. The agreement shall also set forth those items required by Section 17.90.030.(B). of this chapter or any alternative incentives granted pursuant to Section 17.90.060 of this chapter. The agreement shall run with the land and shall be binding upon all heirs, successors or assigns of the project or property owner, and shall ensure affordability for a period of not less than thirty years, or as otherwise required by state law. (Ord. 1282 § 2, 1995; Ord. 1035 § 1 (part), 1985) 17.90.090 Fees. A. No fee in addition to normal project application fees shall be charged for a request for a density bonus pursuant to the provisions of Sections 17.90.040 or 17.90.050, except for reasonable, necessary administrative costs incurred by the city pursuant to Section 17.90.050. B. A fee not to exceed the amount charge for "pre-application concept review" may be charged for proposals submitted pursuant to the provisions of Section 17.90.060. (Ord. 1282 § 2, 1995; Ord. 1035 § 1 (part), 1985) 17.90.100 Affordability standards. A. The community development department shall publish and revise as needed a schedule of rental rates and sales prices for dwellings which will be affordable to households with incomes as provided in this chapter. The schedule shall substantially conform with the affordability standards as established by state or federal law. B. The maximum rental rates and sales prices as revised, generally on an annual basis, shall remain in effect for projects receiving density bonuses or additional incentives under this chapter as provided in the affordable housing agreement, but in no case less than the minimum term required by state law. (Ord. 1282 § 2, 1995; Ord. 1035 § 1 (part), 1985) 17.90.110 Occupant screening. A. The affordable dwellings developed pursuant to this chapter shall be available to qualified occupants without regard to race, religion, national origin, sex, occupation or other affiliation. Occupants may be screened on the basis of age only to qualify those occupants seeking housing designed for the elderly. B. The city housing authority or other third party acceptable to the Community Development Director shall screen prospective occupants so that dwellings developed pursuant to this chapter shall be occupied by households with the appropriate qualifying incomes or ages. Owners of projects shall enter into agreements with the housing authority for such screening services. C. Preference in occupant screening shall be given to those employed within or residing within the city or the immediately surrounding area, to the extent that this provision does not conflict with state or federally funded housing assistance programs which may apply to a particular project, or other applicable law. This section is to insure that those Packet Pg. 272 Item 9 City of San Luis Obispo Zoning Regulations March 2015 Page 240 households having the greatest difficulty obtaining housing at market rates within the city shall be able to occupy affordable housing made available pursuant to this chapter. (Ord. 1282 § 2, 1995; Ord. 1035 § 1 (part), 1985). Packet Pg. 273 Item 9 RECEIVED JA f! 7 2010 SL© CITY CLERK 1010 Marsh St., San Luis Obispo, CA 93401 (805) 546-8208 • FAX (805) 546-8641 PROOF OF PUBLICATION (2015.5 C.C.P.) STATE OF CALIFORNIA, County of San Luis Obispo, I am a citizen of the United States and a resident of the county aforesaid; I am over the age of eighteen years, and not a party interested in the above entitled matter. I am the principal clerk of the printer of the New Times, a newspaper of general circulation, printed and published weekly in the City of San Luis Obispo, County of San Luis Obispo, and which has been adjudged a newspaper of general circulation by the Superior Court of the County of San Luis Obispo, State of California, under the date of February 5, 1993, Case number CV72789: that notice of which the annexed is a printed copy (set in type not smaller than nonpareil), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to -wit: 0"r VV 3 in the year 2019. V I certify (or declare) under the the penalty of perjury that the foregoing is true and correct. Dated at San Luis Obispo California, this day -_5 - of 2019. Patricia Horton, New Times Legals Admin&IGAdn,inlrm, IG OrOcdBU91NLS5 IN, blic Nock OP—rdPun Proof of Publication (YO 111 SAN LUIS OBISPO CITY COUNCIL NOTICE OF PUBLIC MEETING The San Luis Obispo City Council invites all interested persons to attend a public meeting on Tuesday, January 15, 2019, at 6:00 p.m. in the City Hall Council Chamber, 990 Palm Street, San Luis Obispo, California, relative to the following: 1) PUBLIC HEARING concerning 790 Foothill Blvd, - Review of an appeal (Filed by Foothill Blvd. Civil Defense) of the Planning Commission's decision to approve a use permit approval for a new four-story mixed-use project with 6,800 square feet of ground floor commercial/retail space, 78 residential units, and 155 parking spaces with a request for mechanical parking lifts and expanded hours of operation for the commercial spaces. Twelve of the units in the project will be affordable for very -low income households, allowing a 35% density bonus and affordable housing incentives are requested including the construction of a 43 -foot tall structure where 35 feet is normally allowed and an increase in allowable lot coverage from 75%, to 90% (APPL-1971-2018)• For more information, you are invited to contact Rachel Cohen of the City's Community Development Department at (805) 781-7574 or by email at rcohen@slocity.org 2) Adopt a Resolution entitled, "A Resolution of the City Council of the City of San Luis Obispo approving a historic property preservation agreement between the City and the owner of the Nathaniel Brew Home at 771 Buchon Street (HIST - 1936 -2018)" For more information, you are invited to contact Walter Oetzell of the City's Community Development Department at (805) 781-7593 or by email at woetzell@slocity,org The City Council may also discuss other hearings or business items before or after the items listed above. If you challenge the proposed project in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to, the public hearing Council Agenda Reports for this meeting will be available for review in the City Clerk's Office and online at www.slocity.org on Wednesday, January 9, 2019. Please call the City Clerk's Office at (805) 781- 7100 for more information, The City Council meeting will be televised live on Charter Cable Channel 20 and live streaming on www,slocity.org, Teresa Purrington City Clerk City of San Luis Obispo I January 3, 2019 1