From: Ronit Bryant >
Sent: Monday, October 14, 2024 1:36 PM
To: [email protected]
Subject: Agenda Item 6.1
CAUTION: EXTERNAL EMAIL - Ensure you trust this email before clicking on any links or attachments.
Dear EPC Commissioners,
At your upcoming October 16 meeting, you will be discussing a residential development project on Fayette Drive (Item 6.1).
The staff report notes that the San Antonio Precise Plan outlines a streetscape that includes a 4' wide planter strip and a 6' wide detached sidewalk. After discussions with staff, the developer has agreed to provide a 6' attached sidewalk, with planting between the building and the sidewalk.
To some, this might not seem an important difference. But it is. In our era of climate change and rising temperatures, the kind of tree canopy that is made possible by detached sidewalks and wide planter strips becomes critical. If trees are planted very close to buildings, rather than in a planting strip, they are sure to be small decorative plants not suited to provide canopy (and if they grow a little more, the property owners will remove them because they will say they affect the building).
We must plant trees that will provide canopy - it is a matter of health and livability. You cannot consider a neighborhood walkable if pedestrians and bikers are forced to navigate unshaded hot hard scapes while drivers sit in comfort in their air-conditioned cars.
Do not allow exceptions to the requirements of the Precise Plan streetscape. Trees are critical infrastructure - not an unimportant extra that prettifies a building.
Sincerely,
ronit bryant
Attachment 5
Oct 16, 2024
Mountain View Environmental Planning Commission
500 Castro St.
Mountain View, CA 94041
Re: Proposed Housing Development Project at 2645 – 2655 Fayette Drive By email:[email protected]
CC: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Dear Mountain View Environmental Planning Commission and City Sta ,
The California Housing Defense Fund (“CalHDF”) submits this letter to request that the Commission and city sta comply with their obligations to process the proposed 7-story, 70-unit apartment building at 2645 – 2655 Fayette Drive under all relevant state and federal laws.
The City is requiring this project, and others it is considering, to comply with numerous aspects of its municipal code that together may render the project infeasible. The City’s actions are a violation of the Housing Accountability Act (“HAA”). Separately, the City’s continued imposition of fees in lieu of a dedication of parkland is in violation of the constitutional prohibition on exactions in excess of the impacts of proposed development.
I. The City Cannot Require Builder’s Remedy Projects To Comply with Zoning and General Plan Standards
Density and height standards are not the only development standards that preclude housing development. The HAA requires that (emphasis added)“A local agency shall not disapprove a housing development project, including farmworker housing as de ined 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, orcondition 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 360 Grand Ave #323, Oakland 94610
www.calhdf.org
design review standards, unless it makes written indings, based upon a preponderance of the evidence in the record, as to one of the following …” (Gov. Code, 65589.5, subd. (d).) Based on our enforcement work, the City has some of the highest park fees in the state. In fact, the City itself has come to the conclusion that they are a barrier to housing. From the City’s Housing Element, Appendix D, “The economic analysis that the City conducted as part of this Housing Element Update (see Appendix H) found that Mountain View’s park dedication requirements have a moderate to major impact on development costs for rowhouses and a major impact on development costs for multifamily development.” Given the staggering land costs in the City, and the fact that the project must provide 20% low-income housing (directly mitigating the City’s shortage of lower-income housing), also requiring more than $70,000 in parks fees per unit is a clear violation of state law. (See Gov.
Code, 65589.5, subd. (d).) Even at the “discounted” rate of $54,240, these parks fees are completely uneconomical.
The City’s view is that it can apply any/all provisions of its code to this project, provided that they do not pertain speci
ically to density, based on its reading of Government Code, Section 65589.5, subdivisions (f)(1) and (f)(3). This is incorrect. Subdivision (f)(1) allows cities to apply development standards to housing developments if those standards are “appropriate to, and consistent with, meeting the jurisdiction’s share of the regional housing need” and the standards are “applied to facilitate and accommodate development at the density permitted on the site and proposed by the development.” The parkland dedication requirement is also not covered by subdivision (f)(3). That provision allows cities to apply “fees and other exactions authorized by state law.”
Builder’s remedy projects only arise when a City has failed to adequately plan for its share of housing production required under its Regional Housing Needs Allocation (“RHNA”). In this situation, none of a jurisdiction’s development standards are consistent with meeting housing production goals, because that jurisdiction has failed to produce a plan to justify its policies at all. And again, the City here hasadmitted (in its Housing Element) that the standard in question is a major factor in making housing development infeasible. There is simply no way that requiring a dedication of parkland from new housing development is consistent with meeting the City’s RHNA goals.
Furthermore, in accordance with general interpretive provisions for statutes, and due to statutory construction rules (Code Civ. Proc., § 1859), such general protections of (f)(1) and (f)(3) do not overrule the particular provisions of Government Code, Section 65589.5, subdivision (d). The City may not condition approval to require the project to adhere to these various code sections without making health and safety
indings as required by the HAA. (Id.
at subd. (d)(2).) Finally, the legislature clearly establishes that it is the policy of the State that the HAA shall be “interpreted and implemented in a manner to a ord the fullest possible
weight to the interest of, and the approval and provision of, housing.” (Id.at (a)(2)(L).) 2 of 5
Allowing cities to apply conditions of approval that render a ordable housing developments infeasible through strained interpretations is clearly against the policy of the State of California. (See California Renters Legal Advocacy & Education Fund v. City of San Mateo(2021) 68 Cal.App.5th 820, 854.)
The City therefore may also not apply various other zoning standards to the project. For example, the City may not require a provisional use permit for the common roof deck, as this is a zoning standard with discretionary approval. The City also may not disapprove the project based on the tree removal permit, as this would constitute a denial under the HAA. (See, e.g., San Francisco Bay Area Renters Federation v. City of Berkeley et al., Superior Court of Alameda County, Case No. RG16834448, Stipulated Order
iled July 21, 2017 [see attached]
[ruling that the City of Berkeley could not deny an ancillary demolition permit in order to stop a housing development project].) The City also may not condition project approval on any transportation demand management program requirements, or provision of transit passes to residents (which would come out of the project’s HOA fees, regardless).
Given that these conditions, in aggregate, have a tremendously adverse impact on project viability, if the City insists on applying these various conditions on the proposed builder’s remedy projects, the state law (id. at subd. (i)) states clearly that it will bear the burden of proof in court (emphasis added):
“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 housing development project’s application is complete, that have a substantial adverse e
ect on the viability or a ordability 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 bodyto show that its decision is consistent with the
indings as described in subdivision (d), and that the indings are supported by a preponderance of the evidence in the record, and with the requirements of subdivision (o).”
II. The Parkland Dedication Requirement is a Per Se Regulatory Taking Under the Fifth Amendment of the US Constitution, and the In-lieu Fee is an Unconstitutional Condition
The Fifth Amendment of the Constitution prohibits governments from taking private property without just compensation. The Fifth Amendment has been interpreted by the U.S.
Supreme Court to prohibit zoning and land use regulations that e ectively deprive an owner
of protected property rights. (SeePenn Central Transportation Co. v. New York City(1978) 438 3 of 5
U.S. 104.) Perhaps the most clear cut regulatory taking occurs when a land use regulation allows for a permanent physical occupation of private property. (Loretto v. Teleprompter Manhattan Catv Corp.(1982) 458 U.S. 419.) There is perhaps no more obvious example of a violation of the regulatory taking doctrine than the policy enacted by Mountain View here.
The City requires, through zoning regulation, that property owners deed their private property over to the City without just compensation, for public use as a park. The fact that this dedication is only required as a condition of approval for residential development does not allow it to escape constitutional scrutiny. The Supreme Court has long held that regulatory conditions on development approvals that would otherwise constitute takings must be reasonably related to mitigating impacts of that development, and roughly proportional to those impacts. (Nollan v. California Coastal Comm'n(1987) 483 U.S. 825 (Nollan); Dolan v. City of Tigard(1994) 512 U.S. 374 (Dolan).) The City has established no such relationship because it cannot. A desire to acquire and develop parkland is not an impact of new development to be mitigated, and even if it were, the $70,000 per unit fee (or $54,240, if discounted) is wildly out of proportion to any purported impact. The City is free to acquire property for new parks by acquiring property on the private market, or by use of eminent domain powers providing just compensation to property owners, but it cannot simply enact a regulation requiring that developers give land to the City without just compensation.
The City perhaps enacted the parkland dedication policy under the mistaken impression that it is rendered legal by allowing developers to pay a fee in-lieu of dedicating land for parks. Prior California caselaw had indicated that legislatively enacted fees are not subject to constitutional takings limits. (San Remo Hotel v. City and County of San Francisco(2002) 27 Cal.4th 643, 668.) Recently, the U.S. Supreme Court decided that this is de initely not the case.
(Sheetz v. Cnty. of El Dorado(2024) 601 U.S. 267.) InSheetz, the California Court of Appeal had ruled that a traf ic impact fee was not subject to the requirements ofNollan and Dolan, because it was a legislatively enacted exaction, following theSan Remo Hotel decision. (Id. at 407 .) The U.S. Supreme Court overturned this ruling, inding that fees imposed as legislative enactments are subject toNollan and Dolan. (Id. at 280.) After the Sheetz decision, there is no question that the Nollan and Dolan standards apply to the parkland dedication and in-lieu fee requirements at issue for this development. Because the City has not established any nexus between new development and the need to acquire and develop parkland, nor that the $70,000 fee is proportionate to any impacts of new housing on parkland, the City is prohibited from applying this policy to new housing development including the current proposal before you.
⬢⬢⬢
As you are well aware, California remains in the throes of a statewide crisis-level housing shortage. If we do not allow suf
icient housing development, more and more Californians will become and remain homeless. CalHDF urges the City to approve this builder’s remedy project without imposing the aforementioned conditions, as is required by state and federal 4 of 5
law. If the City declines to heed the above guidance and imposes the park dedication requirements on this or any other housing developments, CalHDF is prepared to bring legal action to invalidate these conditions and the citywide policy.
CalHDF is a 501(c)3 non-pro
it corporation whose mission includes advocating for increased access to housing for Californians at all income levels, including low-income households.
You may learn more about CalHDF atwww.calhdf.org.
Sincerely,
Dylan Casey
CalHDF Executive Director
James M. Lloyd
CalHDF Director of Planning and Investigations
5 of 5
From: James Lloyd
To: [email protected]
Cc: , City Attorney; , City Manager; Community Development; , City Clerk; Pancholi, Diana; City Council Subject: Re: CalHDF comment re 2645–2655 Fayette Dr for 10/16/24 Env. Planning Commission meeting Date: Wednesday, October 16, 2024 11:31:27 AM
Attachments: SFBARFvsBerkeley.pdf
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As a follow up, please see attached a legal case referenced by our letter.
Sincerely,
James M. Lloyd
Director of Planning and Investigations
California Housing Defense Fund
[email protected]
On Wed, Oct 16, 2024 at 10:32 AM James Lloyd <[email protected]> wrote:
Dear Mountain View Environmental Planning Commission and City Staff, Please see attached a public comment from the California Housing Defense Fund regarding the proposed 7-story, 70-unit apartment building at 2645 – 2655 Fayette Drive, which the Commission will be hearing tonight.
Sincerely,
James M. Lloyd
Director of Planning and Investigations
California Housing Defense Fund
[email protected]
From: Pancholi, Diana
To: Pancholi, Diana
Cc: Blizinski, Amber; Logue, Jennifer
Subject: FW: 2645-2655 FAYETTE DRIVE, Mountain View, CA- Public Notice Date: Tuesday, October 15, 2024 4:45:08 PM
Please see a comment below for item 6.1 on tomorrow’s agenda.
Diana
From: Wu, Elton H <[email protected]>
Sent: Tuesday, October 15, 2024 3:34 PM
To: Tsumura, Jeffrey <[email protected]> Cc: Wilson, Joanne <[email protected]>; RES <[email protected]>; Leung, Tracy <[email protected]>; Feng, Stacie <[email protected]>
Subject: 2645-2655 FAYETTE DRIVE, Mountain View, CA- Public Notice CAUTION: EXTERNAL EMAIL - Ensure you trust this email before clicking on any links or attachments.
Hello Jeffrey,
Thank you for the public notification regarding the housing development located at 2645-2655 Fayette Drive (proposed project). As you are probably aware, the SFPUC’s Bay Division Pipeline Nos. 3 and 4 are located adjacent to the proposed project. This SFPUC’s Right of Way (ROW) parcel is under license to the City of Mountain View as Fayette Park.
In reviewing the proposed project plans, it appears that the proposed building, including basement, will be setback from the side property line adjacent to the SFPUC parcel. Could you please confirm the width of the setback, particularly at the basement level? We also noticed that the plans indicate that the Acer rubrum will be planted adjacent to the property and along the ROW. Based on the tree canopy study drawing, this tree species has a large canopy that will likely overhang the property line. In the event that the SFPUC constructs or replaces its pipelines, extensive pruning of branches overhanging the SFPUC’s side may be needed to allow access for a large crane. This may leave the trees in an unsightly condition. You will notice in Lafayette Park, the trees are planted in containers, so that the trees can be removed for pipeline construction or repair. We would like to suggest that a smaller tree species or shrubs be planted in the side setback of the proposed project adjacent to the SFPUC property.
Please let me know if you have any questions. Thanks.
Elton Wu
Pronouns: He/ Him
Environmental Compliance and Land Planner
SFPUC Water Enterprise
Natural Resources and Lands Management Division
525 Golden Gate Avenue, 10th Floor
San Francisco, CA 94102
cell: (415) 971-7657
[email protected]
From: Russell, Rosanna S
To: Tsumura, Jeffrey; Community Development; , Planning Division Cc: Wilson, Joanne; Wu, Elton H; Leung, Tracy; Feng, Stacie; Read, Emily; Herman, Jane; Rodgers, Heather Subject: 2645-2655 FAYETTE DRIVE, Mountain View, CA- SFPUC"s initial response to Public Notice Date: Wednesday, October 16, 2024 4:11:20 PM
Attachments: Attachments.html
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Dear Jeffrey:
I hope this email finds you well.
My colleague Elton Wu forwarded the plans for the proposed housing development located at 2645-2655 Fayette Drive (proposed project) to me. As Elton advised you, the City and County of San Franciso, through the SFPUC, owns the parcel adjacent to the proposed project. I attached to this email the revocable license that the SFPUC issued to the City of Mountain View to maintain Fayette Park on the SFPUC property.
The SFPUC has a long-standing policy prohibiting the use of SFPUC property to fulfill another jurisdiction's open space, setback, parking, or third-party development requirements.
Please confirm that neither the City of Mountain View nor the project applicant has proposed including the SFPUC property to fulfill any of the City of Mountain View’s entitlement requirements.
We would appreciate your response by October 23
rd.
Thank you.
Rosanna Russell
Real Estate Director
Citrix Attachments
Mountain View P4255-Fayette Park.pdf 23.6 MB
Mountain View P4255-Fayette Park.pdf 23.6 MB
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From: Wu, Elton H <[email protected]>
Sent: Tuesday, October 15, 2024 3:34 PM
To: [email protected]
Cc: Wilson, Joanne <[email protected]>; RES <[email protected]>; Leung, Tracy <[email protected]>; Feng, Stacie <[email protected]>
Subject: 2645-2655 FAYETTE DRIVE, Mountain View, CA- Public Notice
Hello Jeffrey,
Thank you for the public notification regarding the housing development located at 2645-2655 Fayette Drive (proposed project). As you are probably aware, the SFPUC’s Bay Division Pipeline Nos. 3 and 4 are located adjacent to the proposed project. This SFPUC’s Right of Way (ROW) parcel is under license to the City of Mountain View as Fayette Park.
In reviewing the proposed project plans, it appears that the proposed building, including basement, will be setback from the side property line adjacent to the SFPUC parcel. Could you please confirm the width of the setback, particularly at the basement level?
We also noticed that the plans indicate that the Acer rubrum will be planted adjacent to the property and along the ROW. Based on the tree canopy study drawing, this tree species has a large canopy that will likely overhang the property line. In the event that the SFPUC constructs or replaces its pipelines, extensive pruning of branches overhanging the SFPUC’s side may be needed to allow access for a large crane. This may leave the trees in an unsightly condition. You will notice in Lafayette Park, the trees are planted in containers, so that the trees can be removed for pipeline construction or repair. We would like to suggest that a smaller tree species or shrubs be planted in the side setback of the proposed project adjacent to the SFPUC property.
Please let me know if you have any questions. Thanks.
Elton Wu
Pronouns: He/ Him
Environmental Compliance and Land Planner
SFPUC Water Enterprise
Natural Resources and Lands Management Division
525 Golden Gate Avenue, 10th Floor
San Francisco, CA 94102
cell: (415) 971-7657
[email protected]
Rosanna Russell
SFPUC Real Estate Director
I work remotely from time to time. The best way to contact me is to email me at [email protected]
.
From: hue simpson <
Sent: Wednesday, October 16, 2024 12:24:45 PM
To: Tsumura, Jeffrey <[email protected]> Subject: 2645-2655 Fayette Drive environmental planning commission public input for CAUTION: EXTERNAL EMAIL - Ensure you trust this email before clicking on any links or attachments.
This is to protest the removal of several, 6 or 9 (!!) HERITAGE TREES from the site. I pass by the location frequently so I've seen the actual notice posted at the location. NOT MENTIONED in your mailing is the fact of these trees' destruction. I can see that one tree is in fact dead, But there's a grand tall old tree that is apparently a twin to the same kind of tree in the parking lot next door bordering the bank's lot. . The City is selling off such vintage irreplaceable trees. Could not some modification be made to the building plans to allow the best and healthiest trees to live on and become part of the scenery?. I would point you to the grounds at Dinah's Poolside in Palo Alto. What if they'd put down all those trees; but somehow they managed. Thank you for listening.
Hue Simpson