UNY OF PACKEY
City of Pacifica RECEIVED
MAY 26 2022
APPEAL FORM
in person
CITY CLERK
INSTRUCTIONS: TO FILE AN APPEAL, COMPLETE THIS FORM AND FILE IT WITH THE CITY CLERK'S OFFICE, CITY HALL, 540 CRESPI DRIVE, PACIFICA, CA 94044, NO LATER THAN TEN (10) CALENDAR DAYS OF THE DECISION (POSTMARK DATE WILL NOT BE ACCEPTED), TOGETHER WITH ANY REQUIRED APPEAL FEE. (ONLINE PAYMENTS INCUR A $3.00 ADD'L CONVENIENCE FEE.) YOU WILL BE NOTIFIED IN WRITING OF THE HEARING DATE FOR YOUR APPEAL.
APPELLANT: FILL IN BLANKS AND CHECK APPROPRIATE BOXES BELOW. ATTACH ADDITIONAL SHEETS IF NECESSARY. ($523.00 FEE IS REQUIRED PER APPEAL OF PLANNING COMMISSION DECISION(S), IF FILED BY NON-APPLICANT) ($405.00 FEE IS REQUIRED PER APPEAL OF HERITAGE TREE REMOVAL PERMIT) PROPOSED PROJECT: APPELLANT:
Title/Name: CDP-437-22 Name: North Coast County Water District Address: 2400 Francisco Blvd Address: 2400 Francisco Blvd Applicant/Developer: City of Pacifica Phone (Day): 650-355-3462 DECISION OF (check one): DECISION DATE: 5/16/22 Email Address: [email protected] • Planning Commission Parks, Beaches & Recreation Division • City Staff (Title):
DECISION AT ISSUE: APPROVAL or • DENIAL of:
• Use Permit Site Development Permit Tentative Subdivision Map Animal Permit EIR or Negative Declaration Coastal Development Permit L Administrative Decision Variance • Parking Exception Home Occupation Permit Tree Removal Permit • Other DESCRIBE DECISION BEING APPEALED:
Approval of CDP-437-22 to establish one on-street Temporary Safe Parking Program ( " Program ") parking space and (30'[ by 10', tandem orientation) and improvements on the west side of the Francisco Boulevard public ROW east of 2400 Francisco Boulevard (APN 016-322-23).
DESCRIBE GROUNDS FOR APPEAL:
See attached
APPELLANT'S RELATIONSHIP TO THE ITEM BEING APPEALED? (check one):
•Project Applicant • Neighbor A Concerned Citizen Frother.
APPELLANT'S SIGNATURE: X DATE: 5/25/2022
Received By: Sarah Coffey Fee Paid: • Cash K I Check • Online Receipt Date: 5/26/2022 Receipt # 402/0
City Cierk's Office Use Only Rev. 01/6/2022
ATTACHMENT
The Temporary Safe Parking Program ("Program") is inconsistent with the City's adopted Local Coastal Program.
Coastal development permits issued by local agencies under the Coastal Act are not solely a matter of local law but must embody the state policies of the Coastal Act that require strong environmental protection, along with measures to enhance public access to the California coast line. (Charles A. Pratt Constr. Co. v California Coastal Comm. (2008) 162 Cal.App. 4th 1068, 1075) The fundamental purpose of the Coastal Act is to ensure that state policies for environmental protection prevail over local government concerns. (City of Chula Vista v Superior Court (1982) 133 Cal.App. 3d 472, 489.)
The District recognizes that homeless populations have unique needs that the City is rightfully trying to address; however, those needs should not be addressed by carving out impermissible exceptions to the City's adopted Local Coastal Program. Ultimately, if all applicable Local Coastal Program policies related to housing cannot be met, the only legally defensible option for the City is to move all housing and temporary parking locations outside of the City's coastal zone. Moreover, approvals for temporary housing would set a dangerous precedent, and will subject the City to future challenges if inconsistent or disparate findings are made pursuant to the City's adjudicatory capacity in approving CDPs.
The Planning Commission staff report cited the City's Coastal Act Policy Nos. 2 and 5 for the purpose of seeking a blanket determination that the Program is consistent with the City's certified Local Coastal Program. Policy No. 5, however, refers to low and moderate-income housing opportunities. If the stated purpose of CDP-437-22 is to provide housing, then the CDP must be consistent with all other applicable housing policies under the LCP. The City cannot establish that long-term parking utilized as housing, even if limited to 3 years, is consistent with all other applicable housing policies. For example, Policy No. 23 requires a finding that new housing must be provided in areas with adequate public services and where the housing will not have significant adverse effects, either individually or cumulatively, on coastal resources. The City's Local Coastal Program therefore precludes any housing, temporary or not, where no utility connections for sewer, water, heating or air conditioning are provided.
Policy No. 25 further requires that new housing must enhance public access, through a variety of options, none of which have been met for this or any of the other CDPs being processed pursuant to the City's parking ordinance. New housing must also be consistent with air pollution requirements, minimize energy consumption, and protect special communities (see Policy No.
26.) It is highly unlikely that the vehicle generators that will be used by Program participants will meet all existing air quality, energy efficiency, or noise regulations, such as Tier 4 requirements, noise mufflers, mini-split systems, etc.
Based on the above, the District appeals the Planning Commission's determination that the issuance of CDP-437-22 is consistent with the City's Local Coastal Program. If utility connections and other measures cannot be provided, as required by the LCP, the only legally defensible alternative is to approve locations that are outside of the City's coastal zone. 18597185.3
2. The Program will interfere with the District's ability to provide essential public services and with the District's construction of its new headquarters.
In addition to the concerns raised above regarding LCP compliance, the District has significant concerns that the Program will impede the District's ability to provide emergency services and other services essential to the public. Aside from operating as a water supply facility, the District also functions as an emergency operations center in the case of a natural disaster. District staff, public and utility providers, and other local agencies must be able to move unimpeded, quickly in and out of the facility. The presence of an oversized RV would negatively impact emergency operations by inhibiting the flow of traffic and parking in and around the facility. The District acknowledges that a condition was imposed to evaluate the program's impact on emergency services on an ongoing basis. However, the fact of the matter is that the only viable time to evaluate the impact on emergency services would be during the time of an emergency. This is not a justifiable exercise, from the District's perspective.
Additionally, allowing temporary housing immediately adjacent to District headquarters will likely result in constant disruptions once construction commences for the District headquarters renovation project. By consuming a major portion of parking adjacent to the District offices, the lack of proximate parking will lead to constant complaints from construction crews who lack parking, and nearby residents will be left to cope with overflow parking from construction crews.
Accordingly, the Program will severely impact the District's ability to provide necessary services during the construction of the District's new headquarters.
The City is required to review the Program de novo, which encompasses the right to present additional evidence and claims.
The legal standard on land use appeals is that public hearings, on appeal before a city council must proceed as a de novo hearing. (Breakzone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1221; Russian Hill Imp. Ass'n v. Board of Permit Appeals of City and County of San Francisco (1967) 66 Cal.2d 34, 46; Anderson v. Pittenger (1961) 197 Cal.App.2d 188, 195.) A de novo hearing is "open for the introduction of all evidence, whether presented before or not." (Breakzone Billiards v. City of Torrance, supra, 81 Cal.App.4th at p. 1242.) This is particularly true when the city has not adopted specific provisions, by code or ordinance, to clarify the legal standard on appeal. (Id.) The District therefore reserves the right to provide additional evidence and assert additional claims up to and through the public hearing on this appeal. In addition, based on the statements made during the Planning Commission meeting, the City has potentially been restricting the scope of land use appeals without any legal bases to do so. Under the existing City Code provisions, any citizen has the right to appeal, present additional evidence on any appeal, and be provided a de novo public hearing on appeal of a planning commission approval, or denial, to the city council.
The City failed to provide adequate notice of the ordinance implementing the Program, and must hold a new hearing on appeal to validate the ordinance.
It is well established that procedural due process requirements of notice and hearing to nearby property owners apply in quasi-judicial or adjudicatory hearings. (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612) But a local agency must also hold noticed, public hearing on a proposed zoning ordinance pursuant to Gov. Code section 65091 that "affects the permitted uses of real property." (Gov. Code, § 65854; Sounhein v. City of San Dimas (1992) 11 18597185.3
Cal.App.4th 1255, 1260-61 [finding that the city's failure to provide the requisite notice and hearing procedures when adopting the zoning ordinance was a "total deprivation of basic zoning procedural safeguards for the community" ].) Section 65091(a)(5) requires that notice be given by a newspaper publication or posting in at least three public places at least ten days before the hearing. Additionally, notice must be mailed or delivered to all property owners within 300 feet of the property that is the subject of the hearing. (Gov. Code, § 65091(a)(4).) The City failed to provide the District with adequate notice consistent with Section 65091 when it enacted the ordinance implementing the Program. In fact, in 2020 the City Manager informed the District that public sites were not included in the Program, and again failed to provide notice to the District in February of 2022 when Francisco Boulevard was specifically identified as one of thirteen sites included in the Program. At its core, the City's ordinance implementing Program is a zoning decision because it involves identifying sites located in the coastal zone for temporary housing, parking and other land use regulations, and each site within the coastal zone requires a coastal development permit. As such, the City should have provided the District with notice of the public hearing on the ordinance when it was adopted in February 2022, as its facilities are within 300 feet of the Francisco Boulevard site.
A zoning ordinance is invalid if the party complaining suffered substantial injury and the error was prejudicial. (Gov. Code, § 65010(b); Sounhein v. City of San Dimas, supra, 11 Cal.App.4th at p. 1260 [city's failure to provide requisite notice and hearing procedures before banning second units on multifamily zoned lots was fundamentally flawed, not mere minor technical defect, and could not be deemed harmless or nonprejudicial].) The failure to issue notice to the District was prejudicial to the District, as the District did not receive the opportunity to raise its complaints in connection with the Francisco Boulevard site, and, as a direct result, the District failed to attend or provide comments prior to the adoption of the ordinance. Accordingly, the District suffered substantial injury as a result of the City's failure to provide notice, and the ordinance is invalid until the City holds a new hearing on appeal.
4. The District and reserves the right to challenge the City's determination for the parking and housing ordinance.
The City was required to analyze the impacts of the Program under CEQA. The City concluded, however, without any legal basis that the ordinance and Program are exempt pursuant to CEQA Guidelines section 15301 (Class 1), 15304 (Class 4), and 15061 (common sense). The ordinance and Program, however, clearly do not fit within the scope of these exemptions.
Class 1 exempts the operation, permitting, leasing, or licensing of existing public facilities involving negligible or no expansion of the use. The City reasoned that the public facility - the parking areas on the street - would continue to be used for parking purposes. This is inconsistent with the separate findings that the City is intending to provide low-cost housing by allowing long-term parking in these designated areas. City rights-of-way are not facilities subject to this exemption; even if they were, the long-term dedication of parking on each location comprises a clear extension of the use, which is parking (or converted parking to temporary housing, as stated by the City)
The Class 4 exemption applies to uses having negligible or no permanent effect on the environment; however, the City did not provide any legally defensible findings to support this exemption. As noted above, allowing long-term parking of RVs (or temporary housing) will result 18597185.3
in potential air quality, noise, and public services impacts given the likely use of generators, and lack of utility connections for each designated location. Under these circumstances, reliance on the common sense exemption is also not defensible as there is a fair probability that the actions the Program could result in a significant effect on the environment.
Further, the City was required to file a Notice of Exemption ("NOE") either with the county clerk or the state Office of Planning and Research ("OPR"). When the NOE is filed with the county clerk, it must be posted for at least 30 days. (Pub Res C §21152(a)-(b).) To the District's knowledge, a valid NOE has not been filed with OPR or with the county clerk. As a result, the District reserves the right to challenge the CEQA determination within 180 days limit of the City's approval of the ordinance. (Pub Res C §21167 (d).) Moreover, the principle of exhaustion does not apply because the District was not provided notice of any alleged hearings on the ordinance.
The City has the authority to, and should select an alternative location to Francisco Boulevard.
The Program Operations Agreement ("Agreement") and Settlement Agreement provide the City with the authority to change the locations of the designated spaces so long as thirteen spaces with an average length of 30 feet are maintained by the City as part of the Program, and the City provides adequate notice to Pacifica Resources Center of any changes to the spaces.
In addition to the negative affects the site poses to the District, the Commission expressed concern that the site was not appropriate for the Program at the May 16, 2022 public hearing, and the motion to approve the CDP for the site originally failed by a 3-2 vote. At that time, City staff did not inform the Commission that site locations could be changed, which in turn impacted how the Commissioners voted the second time on the CDP. Accordingly, the District will retract its appeal if the City Council, at a minimum, directs staff to work with the District, and abide by the clear terms of the Agreement to identify an alternative location to Francisco Boulevard. ***
In summary, the City Council is legally obligated to accept this appeal and deny CDP-437-22.
Alternatively, the District will retract its appeal, only if the District's concerns about the Program can be meaningfully addressed, and provided that the City Council clearly directs staff to identify an alternative site to Francisco Boulevard that is acceptable to the District, and as permitted by the terms of the Settlement Agreement and the Program.
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