CITY OF PACIFICA
COUNCIL AGENDA SUMMARY REPORT
9/26/2022
1 SUBJECT:
Consideration of an appeal of the Planning Commission’s approval with conditions of Coastal Development Permit CDP-437-22 to establish one on-street Temporary Safe Parking Program parking space (30’ by 10’) on the west side of the Francisco Boulevard public right-of-way (ROW), east of 2400 Francisco Boulevard (APN 016-322-230) and approximately 32 feet north of the Clarendon Road and Francisco Boulevard intersection (File No. 2022-012). (Continued from 8/8/22).
RECOMMENDED ACTION:
Move to DENY the appeal and UPHOLD the Planning Commission’s approval of Coastal Development Permit CDP-437-22 and finding the project exempt from the California Environmental Quality Act (CEQA) by adopting the resolution included as Attachment A, including conditions of approval in Exhibit A to the resolution.
STAFF CONTACT:
Christian Murdock, AICP, Planning Director – (650) 738-7341 [email protected]
BACKGROUND/DISCUSSION:
The following section provides the relevant background of the project.
A. BACKGROUND
Temporary Safe Parking Program
On March 15, 2021, the American Civil Liberties Union (“ACLU”), the Legal Aid Society of San Mateo County and Disability Rights Advocates filed a class action lawsuit against the City of Pacifica on behalf of the Plaintiffs1 challenging the City’s Oversized Vehicle (“OSV”) Ordinance and its Vehicular Habitation Ordinance.2 On November 8, 2021, the City Council adopted Resolution No. 72-2021 approving execution of a settlement agreement (“Settlement Agreement”) for the lawsuit and as part of the Settlement Agreement, the City agreed to develop and adopt an on-street, temporary safe parking program (“Program”) and identified the 13 designated parking spots that would be used for the Program, to be jointly administered with Pacifica Resource Center (“PRC”).
On February 28, 2022, the City Council adopted Resolution No. 12-2022 to approve a threeyear Temporary Safe Parking Program (“Program”) in the City of Pacifica which provides up to 13 parking spaces for exclusive use by Program participants living in an operational recreational vehicle, trailer or motorhome with operating toilet facilities. The Program would allow temporary parking of such vehicles for limited time periods in each of the designated spaces that have been approved by the City Council while Program participants seek permanent housing 1 Named Plaintiffs identified in the Complaint are as follows: Sean Geary, Linda Miles, Jared Carr, Harry Bode, and Stephen Sanders
2 Geary, et al. v. City of Pacifica, Case No. 3:21-cv-01780 Pacifica City Council 2
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solutions. The resolution also authorized the City Manager to execute the Operations Agreement in substantially the form attached hereto between the City of Pacifica and the PRC, which details the terms, provisions, and obligations of the PRC and City to implement the Program. The Program was found to be exempt under the California Environmental Quality Act (“CEQA”) Class 1 and 4 exemptions under CEQA Guidelines Sections 15301 and 15304 and the “CommonSense” exception, CEQA Guidelines Section 15061(b)(3).
The City Council also adopted Ordinance No. 873-C.S. (“TSPP Ordinance”) adding a new PMC Section 4-7.1207, which, among other things, specifies various parameters for the use of Regular, Provisional, and Short-Term Permits under the Program and amended PMC Section 5-
2.03 to create an exemption from the City’s 72-hour parking limitation for vehicles displaying either a valid Regular Permit or Provisional Permit under the Program.
Program parking space locations both within and outside of the coastal zone include:
Location Number of
Spaces
West side of Oceana Boulevard, across from City of Pacifica Public Works Dept. at 151 Milagra Avenue
4 South side of Milagra Drive, across from City of Pacifica Public Works Dept. at 151 Milagra Avenue
1 East side of Lundy Way, north of Rifle Range Road 3
West side of Bradford Way near the Sharp Park Golf Course3 2 San Pedro Avenue in the dirt ROW in front of ACE Hardware4 2 West side of Francisco Boulevard adjacent to North Coast County Water District at 2400 Francisco Boulevard (Project site)
1 Planning Commission Review of Francisco Boulevard Program Space On May 16, 2022, the Planning Commission adopted Resolution No. 2022-012 by a vote of 5 to 0 finding establishment of one on-street Program parking space (30’ by 10’) and improvements on the west side of the Francisco Boulevard public ROW, east of 2400 Francisco Boulevard (APN 016-322-230) and approximately 32 feet north of the Clarendon Road and Francisco Boulevard intersection (“Project”) exempt from the California Environmental Quality Act (CEQA) and approving, with conditions, Coastal Development Permit CDP-437-22 (“CDP”) (Attachment B). The staff report and minutes of the Planning Commission hearing of May 16, 2022, are included as Attachments C and D, respectively. The Project plans are included as Attachment E.
Appeal by North Coast County Water District
On May 26, 2022, North Coast County Water District (hereafter “Appellant” or “District”) timely submitted a City of Pacifica Appeal Form, letter, and applicable fee to the City Clerk’s office to appeal the Planning Commission’s approval of the CDP for the Project (Attachment F). The Appellant cited several reasons for the appeal in the appeal form and attached letter, which are 3 This location is the subject of an ongoing appeal to the California Coastal Commission. 4 Ibid.
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summarized and addressed in the August 8, 2022 City Council staff report (Attachment G).
City Council Appeal Hearing – July 11 and August 8, 2022 After duly noticing the public hearing for the appeal to occur during a regular meeting of the City Council on July 11, 2022, staff requested a continuance for the appeal hearing to August 8, 2022, in order to manage the number of items on the City Council’s agenda. The Appellant agreed to the continuance and the City Council granted the continuance to their regular meeting on August 8, 2022.
On August 8, 2022, the City Council opened and closed the public hearing and deliberated on the appeal. During the public hearing, the Appellant argued, among other things, that the issuance of a CDP is in violation of the Coastal Act and that City should not take any action on the appeal given the other CDPs for TSPP parking sites in the coastal zone pending appeals before the California Coastal Commission. Appellant also incorporated the California Coastal Commission staff report into its appeal.
City staff continues to maintain that consideration of any alternative sites is outside of the scope of the appeal. (See Attachment G, Appeal Bases 3 and 6).
Staff also continues to maintain that the CDP for the Project was issued in conformance with the City’s certified Local Coastal Program (“LCP”) as set forth in the Planning Commission’s Resolution No. 2022-012. (See Attachment G, Appeal Basis 1 and Attachment B, Planning Commission Resolution No. 2022-012). While Appellant points to the other pending CDP appeals before the California Coastal Commission, the City maintains that those appeals are separate from this appeal and are without merit. Moreover, the City maintains that the Coastal Commission lacks jurisdiction to consider the OSV Ordinance and in any case, the OSV Ordinance is not “development” within the meaning of the Coastal Act. (See Attachment H).
Appellant also argued at the August 8, 2022 hearing that the CEQA exemptions are invalid and that the City unlawfully segmented its issuance of CDPs under CEQA without properly reviewing the Oversized Vehicle Ordinance and the TSPP.
City staff maintains that the CEQA exemptions identified by the City are appropriate (See Attachment G, Appeal Basis 5) and Appellant’s CEQA arguments are without merit.
First, with regard to the Class 1 exemption, Appellant contends that City ROW are not facilities subject to this exemption. However, that contention directly contradicts the language in Section 15301, which identifies existing highways and streets, sidewalks, gutters, etc. and similar facilities, as an example of facilities that are listed and subject to the Class 1 exemption.
Section 15301 also specifies that the types of “existing facilities” itemized are not intended to be an all-inclusive list but rather the key consideration is whether the project involves negligible or no expansion of use. In this case, the Program will only involve a negligible expansion of use of existing City street facilities. Indeed, the Project merely includes reserving 30’ by 10’ of public ROW for the use by participants of the Program for a period of three years. The City is utilizing existing streets for parking of OSVs participating in the Program that will be signed and marked for the Program. The Project site is also currently used for OSV parking up to 72 hours by any individual OSV. Yet the space may be used continuously under existing regulations by any combination of different OSVs provided that no single OSV occupies the space for more than 72 hours. If the CDP is approved, the Project site will continue to be used for parking of OSVs by Program participants while the Program is being conducted. Additionally, Appellant argues that the Class 1 exemption would be inconsistent with the “separate findings that the City is intending to provide low-cost housing by allowing long term parking in these designated areas.” It is unclear what findings the Appellant is referring to as there is no such finding in the Program Ordinance. There is however, a finding in the Planning Commission’s Resolution No. 2022-012 Pacifica City Council 4
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approving the Project. The Planning Commission found that the Project, among other findings, was in conformance with Coastal Act Policy No. 5, because the “…Program parking space will provide a low cost temporary housing opportunity for Program participants for a limited period of time while participants in the Program seek permanent housing solutions. Therefore, the Project would encourage and provide housing opportunities for persons of low and moderate income.” This finding confirms why the Project conforms with Coastal Act Policy No. 5 and while the Project does encourage and provide housing opportunities to Program participants, the finding itself does not indicate that the City is intending to provide “low-cost housing” through the Program. While it is true that the Program will provide housing opportunities for participants because they will be working with PRC to find long-term housing and be provided a temporary place to park their OSV, the existing use of the public ROW allows for vehicle parking; therefore, the proposed use is a negligible expansion of the existing use.
Second, with regard to the Class 4 exemption, Appellant contends that allowing long-term parking of RVs (or temporary housing) will result in “potential air quality, noise and public services impacts.” The Appellant does not provide any evidence beyond these broad statements to support its contention that there will be impacts to air quality, noise and public services. Appellant also does not appear to consider that the parking sites for the Program are currently used for vehicle parking, including OSV parking. While the Program will make alterations in the condition of land, given that the Program is temporary and the alterations to the land are minor (reserving 30’ by 10’ of existing public ROW, placement of post for signs and markings in ROW), the Class 4 exemption is appropriate as there will be a negligible temporary change of land use will have no permanent effects on the environment.
Third, with regard to the Common Sense exemption, the Appellant argues that because the Program will result in “potential air quality, noise and public services impacts given the likely use of generators and lack of utility connections for each designated location" the Program is not subject to the Common Sense exemption. Again, the Appellant does not provide any evidence beyond these broad statements to support its contention that there will be impacts to air quality, noise and public service nor does the Appellant provide any evidence to support the contention that generators are more likely to be used by Program participants rather than other nonparticipant OSV operators. This exemption provides that CEQA applies only to projects which have the potential for causing a significant effect on the environment and where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. In this case, since the parking areas in the right-of-way are being used for the purpose they are originally intended, the Program and Ordinance are not a project that may cause a direct, or reasonably foreseeable indirect, physical change in the environment and are exempt under the Common Sense exemption (14 Cal. Code Regs. § 15061(b)(3)). The Program would essentially reserve 13 parking spaces for a temporary period of three years to allow Program participants to park at one of the Program sites for periods of up to 29 days while in the Program. There would also be minor improvements to the Program parking spaces (placement of post for signs and markings in ROW). The Program would also provide other benefits to the Program participants such as trash and recycling collection and black water collection, however, these are services that OSV owners would require regardless of participation in the Program and OSV parking would be available regardless of the Program status. This negligible temporary change of land use will have no permanent effects on the environment.
Fourth, none of the exceptions applicable to the Class 1 and 4 exemption in Section 15300.2 of the CEQA Guidelines apply, as described below.
• Sec. 15300.2(a): This exception does not apply to the Class 1 exemption.
Furthermore, there is no evidence in the record that the Project would impact an environmental resource of hazardous or critical concern in an area designated, precisely mapped, and officially Pacifica City Council 5
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adopted pursuant to law by federal, State, or local agencies. • Sec. 15300.2(b): There is no evidence in the record that cumulative projects of the same type would occur within the same place to create a significant cumulative impact. • Sec. 15300.2(c): There is no evidence that the activity would have a significant effect on the environment due to unusual circumstances. • Sec. 15300.2(d) through (f): The Project is not proposed near an officially designated scenic highway, does not involve a current or former hazardous waste site, and, does not affect any historical resources. Therefore, the provisions of subsections (d) through (f) are not applicable to this Project.
Finally, Appellant also contends that City was required to file a Notice of Exemption (“NOE”).
This is not correct. Pursuant to Public Resources Code Section 21152(b), when an agency determines that a project is exempt, it may file a notice of exemption but is not required to make any such filing. (See also California Code of Regulations Section § 15062(a)).
Appellant also argued on August 8, 2022 that it did not receive adequate notice of the TSPP Ordinance. As previously indicated in the Staff Report, the City was not required to provide any notice pursuant to Government Code Section 65091 because the Program Ordinance does not constitute an amendment to the City’s Planning and Zoning Code or the City’s General Plan because the Program Ordinance does not change any allowed land uses. Rather, the TSPP Ordinance was adopted pursuant to Vehicle Code section 22507 and City’s regulations relating to parking are identified in Article 12, “Stopping, Standing and Parking Restricted or Prohibited of Chapter 7, Title 4, including the OSV Ordinance and other available parking permits.
Although the City was not obligated to comply with the notice requirements in Government Code section 65091, there were numerous ways that the City provided notice to the public of the meetings where the TSPP would be considered. (See Attachment G, Appeal Basis 4). Although the City was not required to provide specific notice under Government Code section 65091, there were opportunities for the Appellant to attend and provide public comment on the Program and the Program Ordinance. Appellant’s District Manager even stated during the August 8, 2022 hearing that she does “… get the notice of the Agenda and things and did see the TSPP was on for that agenda…”5 Thus, members of the public, including Appellant, were provided notice of the Program Ordinance prior to adoption.
Ultimately, the City Council did not make a determination relating to the appeal on August 8, 2022 but rather continued the hearing to September 26, 2022, to provide staff time to conduct a feasibility assessment on alternative Program spaces suggested by the Appellant on Appellant’s properties.6 City staff conducted a joint site visit to one of the alternative sites suggested by the Appellant located near the intersection of Skyline Boulevard and Sharp Park Road. Although staff thought the site had sufficient space, there would be significant barriers to using the site for the Program including completion of necessary improvements to property, zoning review, and access/use agreements, among others.
B. CITY COUNCIL’S ROLE
Pursuant to PMC Section 9-4.3208, the Council may approve, deny or modify the Coastal Development Permit, after considering the appeal. In the event that the Council determines that 5 See video recording of the August 8, 2022 City Council meeting: https://youtu.be/apT4a6ZwjvA?t=6745 (2:25:23-30).
6 A recording of the August 8, 2022 City Council meeting is available online here:
https://youtu.be/apT4a6ZwjvA?t=6745
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there is substantial evidence in the record to support the Planning Commission’s approval of the Coastal Development Permit, the Council should deny the appeal by adopting the attached Resolution. In the event that the Council decides to uphold the appeal and deny the Project, Council will need to provide staff with the basis for those findings that are supported by substantial evidence which would be inserted into a Resolution upholding the appeal by staff and brought back to Council at a later date.
C. CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”) REVIEW The City Council approved the Program on February 28, 2022 in Resolution No. 12-2022. The Project is an implementation of the Program. Staff recommends that the City Council find, based on its independent judgment and after consideration of the whole administrative record, that the Project was previously assessed on February 28, 2022 in Resolution No. 12-2022, and therein determined exempt from CEQA pursuant to the Existing Facilities, Minor Alterations to Land, and “Common Sense” exemptions. (14 Cal. Code Regs. §§ 15301, 15304(e), 15061(b)(3).) There have not been any changes to the Program, any changed circumstances, or any new information since the City’s adoption of Resolution No. 12-2022 on February 28, 2022 that warrant any supplemental, subsequent, or additional environmental review of the Program or the Project. Accordingly, Staff recommends that the Council find, based on its independent judgment, after consideration of the whole administrative record, that there has been no change to the Program or substantial changes in circumstances or new information that would warrant subsequent or supplemental environmental analysis or review in accordance with CEQA.
D. STAFF SUMMARY
Staff believes there is substantial evidence to deny the appeal and uphold the Planning Commission’s approval as detailed in Attachment G. Staff also believes there is substantial evidence to support the application of Class 1 and 4 CEQA exemptions under CEQA Guidelines Sections 15301 and 15304 and the “Common Sense” exception, CEQA Guidelines Section 15061(b)(3) to the Project. Therefore, staff recommends that the City Council deny the appeal and uphold the Planning Commission’s approval of the Project.
E. ALTERNATIVE ACTIONS
The City Council may move to continue the appeal hearing in order to allow staff to prepare a resolution and associated findings to uphold the appeal and deny the Planning Commission approval of the Coastal Development Permit. The City Council may also refer the matter back to the Planning Commission for reconsideration.
RELATION TO CITY COUNCIL GOALS AND WORK PLAN:
The Project is consistent with the following City Council-adopted goal:
Goals
● “A Healthy and Compassionate Community” includes addressing affordable housing and mental health services, exploring and implementing strategies that relate to homelessness, and supporting community services for all ages.
It is also the City Council’s normal governance process to hear and determine appeals of Planning Commission actions under the Pacifica Municipal Code.
FISCAL IMPACT:
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In the event the Settlement Agreement conditions are not met, the City could incur significant additional costs in defending the lawsuit which could exceed $500,000. These additional costs would be in addition to the over $300,000 in legal defense costs already expended in the lawsuit.
ORIGINATED BY:
Planning Department
ATTACHMENT LIST:
Attachment A - Draft Resolution - Safe Parking Francisco Blvd. Appeal (DOCX) Attachment B - Planning Commission Resolution 2022-012 - Safe Parking Program - Francisco Blvd - 2022-05-16 (PDF)
Attachment C - Planning Commission May 16 2022 Staff Report (PDF) Attachment D - Planning Commission Minutes 05-16-22 (PDF) Attachment E - Permit Parking Spots Scope - Francisco Blvd. (PDF) Attachment F - NCCWD Appeal (PDF)
Attachment G - City Council August 8, 2022 Staff Report (PDF) Attachment H - City's Coorespondance to California Coastal Commission (PDF)