CITY OF PACIFICA
COUNCIL AGENDA SUMMARY REPORT
8/8/2022
1 SUBJECT:
Consider 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).
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, Acting Planning Director
(650) 738-7341
[email protected]
BACKGROUND/DISCUSSION:
The following section provides the relevant background of the project as well as discussion of the appeal.
A. BACKGROUND
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 solutions. The resolution also authorized the City Manager to execute the Operations 1 Named Plaintiffs identified in the Complaint are as follows: Sean Geary, Linda Miles, Jared Carr, Harry Bode, and Stephen Sanders
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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 City Council also adopted Ordinance No. 873-C.S. 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 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 (“Development Permit”) (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.
After duly noticing the public hearing for 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.
B. APPEAL OF PLANNING COMMISSION APPROVAL
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 Development Permit for the Project (Attachment F). The Appellant cited several reasons for the appeal in the appeal form and attached letter, which are summarized and addressed by staff below. 3 This location is the subject of an ongoing appeal to the California Coastal Commission. 4 Ibid.
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Basis 1. “The Temporary Safe Parking Program (“Program”) is inconsistent with the City’s adopted Local Coastal Program.”
Staff Response: The Appellant claims that if the City is unable to meet all applicable Local Coastal Program (“LCP”) policies related to housing, then the only legal option is to move all housing and temporary parking locations outside of the City’s Coastal Zone. This statement is inaccurate and misstates the requirements for the Planning Commission findings required for the issuance of a Coastal Development Permit pursuant to PMC section 9-4.4304(k) as further supplemented by the discussion below. Staff has also found that the Project is consistent with the applicable policies of the Local Coastal Land Use Plan (“LCLUP”).
The Appellant contends that the May 16, 2022 Planning Commission staff report cited Coastal Act Policy Nos. 2 and 5 for purpose of seeking a blanket determination that the Program is consistent with the City’s LCP. This statement is incorrect. As explained in the May 16 Planning Commission staff report the LCP consists of the LCLUP and the Implementation Plan (“IP”). The staff report identifies LCLUP Coastal Act Policy Nos. 2 and 5 as applicable policies as the Project would support both Policies. No regulations in the IP are applicable to the Project.
The Appellant claims that if the City should consider the Project as housing then all other applicable housing policies should apply and cites Coastal Act Policy Nos. 23, 25, and portions of 26. The finding to support the Project’s consistency with Coastal Act Policy No. 5 identifies the Project as a temporary housing opportunity because Program participants will be working with PRC to find long-term housing and be provided a temporary place to park their OSV. Staff notes that Coastal Act Policy Nos. 23, 25, and 26 are not specific to housing developments, however staff addresses each of these policies as cited by the Appellant below.
Coastal Act Policy No. 23 states:
New development, except as otherwise provided in this policy, shall be located within, contiguous with, or in close proximity to, existing developed areas able to accommodate it or, where such areas are not able to accommodate it, in other areas with adequate public services and where it will not have significant adverse effects, either individually or cumulatively on coastal resources. In addition, land divisions, other than leases for agricultural uses, outside existing developed areas shall be permitted only where 50 percent of the usable parcels in the area have been developed and the created parcels would be no smaller than the average size of surrounding parcels. Where feasible, new hazardous industrial development shall be located away from existing developed areas.
Visitor-serving facilities that cannot feasibly be located in existing developed areas shall be located in existing isolated developments or at selected points of attraction for visitors.
This policy requires that new development is “located within, contiguous with, or in close proximity to, existing developed areas able to accommodate it.” The Project site is an existing developed street. Furthermore, the Project is immediately surrounded by existing developed areas, including the District’s headquarters (2400 Francisco Boulevard, APN 016-322-230) to the west, State Route 1 to the east, and residential uses to the north, and a mix of commercial and residential uses to the south of the Project site along Francisco Boulevard. Because the Project site is located near existing developed areas, the criteria for new development in areas not near existing developed areas does not apply. Regardless, staff notes that the Program, which would support the Project site, requires Participants to have an operational recreational vehicle with operating toilets. The Program will provide Participants with public services such as regular access to water at PRC’s facility, regular access to black and gray water disposal facilities, and regular access to solid waste and recycling facilities. The policy does not define “adequate public services” as utility connections for sewer, water, heating or air conditioning as 14 Packet Pg. 231
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implied by the Appellant. Finally, the remaining language of Coastal Act Policy No. 23 is not applicable as the Project does not include land divisions, new hazardous industrial development, or visitor-serving facilities.
Coastal Act Policy No. 25 states:
The location and amount of new development should maintain and enhance public access to the coast by:
(a) Facilitating the provision or extension of transit service; (b) Providing commercial facilities within or adjoining residential development, or in other areas that will minimize the use of coastal access roads; (c) Providing non-automobile circulation within the development; (d) Providing adequate parking facilities or providing substitute means of serving the development with public transportation;
(e) Assuring the potential for public transit for high intensity uses such as high-rise office buildings; and
(f) Assuring that the recreational needs of new residents will not overload nearby coastal recreation areas by correlating the amount of development with local park acquisition and development plans with, the provision of on-site recreational facilities to serve the new development.
The Appellant claims that new housing must enhance public access, using options in the policy, which Appellant believes were not met by the Project. The Project is not at the scale that would necessitate or allow for implementation of many of these enhancements for public access because:
(a) The Project would occur within an existing public right-of-way (“ROW”) and wouldn’t establish a new area that would require an extension of transit service. The Project would simply establish one on-street Program parking space and installation of street markings and signage to the public ROW, thus the Project wouldn’t impact existing public transit service.
(b) The Project doesn’t include commercial facilities and the Project site is already in the immediate vicinity of commercial uses. The Project will also not minimize the use of coastal access roads as the Project is located in the ROW and will not impede any vehicular access to vehicles traveling in the area.
(c) The Project site is 30’ by 10’ and would not be large enough to accommodate nonautomobile circulation within the development. Additionally, an existing public sidewalk would be maintained immediately west of the Project site. (d) The Project is to provide a parking space and therefore the Project would meet this public access provision by its own design. Additionally, as analyzed in the May 16 Planning Commission staff report, adequate visitor-serving parking is available in the vicinity of the Project.
(e) The Project does not include high intensity uses. Additionally, the project wouldn’t impact existing public transit service.
(f) At most, the Project would establish a parking space to provide a temporary opportunity for Program participants to park for 30 days at a time in one location. The Program would prioritize existing residents of Pacifica and therefore it is likely the participants would not be new residents. However, even if there are new residents, they will not overload nearby coastal areas as there are only 5 parking spaces in the Program that are in the coastal zone and existing nearby recreational areas, such as Sharp Park Beach, Sharp Park Golf Course, Brighton Park, and other nearby recreational facilities would be adequate to accommodate the participants.
Coastal Act Policy No. 26 states:
New development shall:
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[…]
(c) Be consistent with requirements imposed by an air pollution control district or the State Air Resources Control Board as to each particular development. (d) Minimize energy consumption and vehicle miles traveled. (e) Where appropriate, protect special communities and neighborhoods which, because of their unique characteristics, are popular visitor destination points for recreational uses.
The Appellant identifies the above portion of Coastal Act Policy No. 26 as applicable to the Project and claims that it is unlikely Program participants will meet all existing air quality, energy efficiency or noise regulations. Staff maintains that the Project is not at the scale that would necessitate or allow for implementation of many of these provisions for new development; however, to the extent applicable the Project is consistent because:
(a) The Planning Commission conditioned the Project as detailed in Resolution No. 2022-012 to require Program Participants to comply with all Bay Area Air Quality Management District regulations applicable to generators proposed for operation at the Program spaces. This condition is consistent with requirements imposed by the air pollution control district.
Additionally, the Program would require the Participants to have current State vehicle registration. Air quality requirements associated with the vehicle would be addressed through the State vehicle registration process.
(b) The Project would establish a parking space to provide a temporary parking space that requires very little development since the existing public street facility is being used.
Therefore, the Project would require minimal energy consumption. Additionally, the Program would prioritize Participants that are existing Pacifica residents who are likely to have established connections, such as work, school, family, and friends in the area. By providing a temporary parking space in the area that Participants already reside in, the Project will reduce the number of vehicle miles traveled compared to an alternative outside of Pacifica.
Moreover, participants in the Program parked in the designated parking spaces do not have to move their vehicles every 72 hours to a new parking space thus reducing the number of trips that their vehicles have to take.
(c) The Project would have no impact on the special character and neighborhood of West Sharp Park as oversized vehicles are currently able to park along Francisco Boulevard.
No City noise regulations are applicable to the Project itself because the Project is the establishment of the parking space in an area that already allows parking and the installation of street markings and signage. The Program participants would be required to comply with the Program’s Code of Conduct as codified in Pacifica Municipal Code Section 4-7.1207(e)(1). The Code of Conduct would require the Program participants to maintain quiet hours between 10pm and 8am and turn off generators at that time. Program participants would be subject to the City’s noise ordinance in Chapter 10, Title 5 of the Pacifica Municipal Code.
For the reasons provided above, staff recommends that the City Council reject this basis of appeal.
Basis 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.” Staff Response: The Appellant claims that the Project would negatively impact emergency operations at their facility by inhibiting the flow of traffic and parking in and around the facility, however the Appellant provides no evidence to support these statements. The District’s headquarters currently has three driveway entrances to access their site. Two entrances are located on the south side of the property along Clarendon Road and one entrance is located on the east side of the property along Francisco Boulevard. Between the District’s Francisco Boulevard driveway entrance and the Clarendon Road and Francisco Boulevard intersection to 14 Packet Pg. 233
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the south, the west side of the Francisco Boulevard ROW contains approximately 87 feet of curb space available for parking as well as approximately 24 feet of red curb which is located closest to the intersection. The proposed location of the Project would abut the north end of the red curb and consume 30 feet of the available 87 feet of curb space. A condition of approval added by the Planning Commission on May 16 would also add 5 feet of red curb on the north side of the Project site. This would result in approximately 52 feet of available curb between the northern extent of the new red curb for the Project site and the District’s Francisco Boulevard driveway entrance. Approximately 52 feet of curb length is more than a reasonable distance to conclude that the Project would not inhibit flow of traffic into the District’s Francisco Boulevard driveway entrance. Furthermore, typical street parking would continue to occur along the remaining curb space between the Project site and the Francisco Boulevard driveway entrance as currently allowed. The Project would have no impact on inhibiting the flow of traffic into the District’s two Clarendon Road driveway entrances because the Project site is located along Francisco Boulevard.
The Appellant’s claim that the Project would inhibit parking around the District’s headquarters by consuming parking that could be used by emergency response staff during times of an emergency or by their construction contractor during an anticipated future renovation project are unsubstantiated. The Project site is currently used by the public for on-street parking and is not reserved for the use of emergency response staff. Therefore, the Appellant’s implication that the Project site is available for emergency response staff at any given time is inaccurate.
Additionally, property owners are required to provide adequate parking facilities for the use on the site and are unable to claim public ROW as parking space required and reserved for their use. The Appellant’s District headquarters has 12 on-site parking spaces. Finally, with regard to any future construction or development on the District property, no such future development is currently approved. The timing of any such future approval and subsequent construction is also unknown at this time and speculative. This is particularly relevant in light of the temporary duration of the Program and Project at this site. Should development on the District property be approved in the future, the District, like any other developer, would be responsible to accommodate construction parking on site or use public ROW as is available to the public. As the District is seeking approval of development permits for their proposed headquarters renovations, the City will evaluate the parking impacts of the District’s project as appropriate.
For the reasons provided above, staff recommends that the City Council reject this basis of appeal.
Basis 3. “The City is required to review the Program de novo, which encompasses the right to present additional evidence and claims.”
Staff Response: The Appellant contends that 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. Appeals of Planning Commission decisions are generally governed by Article 36 of the Pacifica Municipal Code, which provides that the appeal shall be heard and determined according to the procedures set forth in PMC Section 9-4.3208. Subdivision (b) of Section 9-4.3208 provides that upon the receipt of the appeal, the Council may consider the appeal in one of the following ways:(1) By holding a public hearing, using the same procedures as set forth in Section 9-4.3302 of Article 33 of this chapter; or (2) By referral back to the Commission for reconsideration. Subdivision (c) of Section 9-
4.3208 provides that upon considering the appeal, the Council may approve, deny, or modify the permit. Because the Council has the discretion to modify the development permit, Council’s review on appeal is indeed considered a de novo review and the Council can consider all aspects of a project considered by the Planning Commission – not simply the issues being appealed.
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However, this review is limited to what was within the Planning Commission’s review jurisdiction. The Planning Commission’s action on May 16, 2022, was focused on determining whether the findings required for approval of the CDP could be made. The Planning Commission did not have the authority from City Council to review or consider alternative locations for the Project. Since this was not within the discretionary review authority of the Planning Commission, it would not be appropriate for the Council to consider alternative locations during the appeal hearing. The Council, pursuant to PMC Section 9-4.3208(c), may either approve, deny or modify the CDP approved by the Planning Commission and not the Program itself because the Program was approved by the Council through a separate process.
The Planning Commission had no authority from City Council to review or consider alternative locations for the Project. Thus, it would not be appropriate for the Council to consider alternative locations during the appeal hearing.
For the reasons provided above, staff recommends that the City Council reject this basis of appeal.
Basis 4. “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.” Staff Response: As indicated above in staff’s Response to Basis No. 3, the consideration of the Council is limited to the approval, denial or modification of the CDP issued by the Planning Commission. Because the issue of the validity of the Program implementation ordinance is not relevant to the issuance of a CDP, appeal Basis No. 4 should not be considered by the Council.
However, even if validity of the ordinance were relevant, this contention is without merit.
While the Appellant claims that the City failed to provide the District with the specified mailed notice that is required for certain general plan and zoning code changes pursuant to Government Code Section 65091(a)(4), those provisions are only applicable to certain planning and land use matters. In the case of the Program Ordinance, 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 found in Title 9 of the PMC or the City’s General Plan because the Program Ordinance does not change any allowed land uses. Rather, the 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. The Program Ordinance added a new Section 4-7.1207 to the PMC which, among other things, specifies various parameters for the use of Regular, Provisional, and Short-Term Permits under the Program. The Program Ordinance also amends 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. These provisions would not be appropriately included in the City’s Planning and Zoning Code because the use of the ROW did not change.
The Program Ordinance is not a zoning ordinance simply because some of the parking sites are located within a coastal zone and provide a temporary housing opportunity. The coastal zone issue is only relevant to the question of whether certain parking sites need a Coastal Development Permit. Parking regulations in the ROW, such as the ones contained in the Program Ordinance, are adopted through the City’s inherent police powers under the California Constitution Article XI, Section 7 to address health and safety issues, among other concerns.
They are located in Title 4 and 5 of the PMC and are not considered a land use regulated by the Planning and Zoning Code.
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Even assuming arguendo that Appellant is correct, a failure to provide the requisite notice under Government Code Section 65091 does not invalidate the ordinance. Pursuant to Government Code Section 65093, the failure of any person or entity to receive notice under the requirements of Sections 65090–65091, do not constitute grounds for a court to invalidate the actions for which the notice was given. Thus, Appellant’s request to invalidate the Program Ordinance would not be appropriate.
Finally, although Appellant claims that they did not receive adequate notice of the Program Ordinance, there were numerous opportunities for the Appellant to provide public comment on the Program and the Program Ordinance. For example, the City Council specifically considered the Program Ordinance at two public meetings: February 28, 2022 and March 14, 2022 where members of the public, including Appellant, could provide public comment. The agendas for these meetings were distributed by email to the email distribution list for those that have requested agendas, posted at City Council Chambers (2212 Beach Boulevard) and at Pacifica Community Center (540 Crespi Drive) where the Civic Center / City Hall offices are currently located as well as posted online on the City of Pacifica website via the meeting portal.
Additionally, the City Manager highlighted the Safe Parking Program agenda topic in the Friday February 25, 2022 release of the City’s weekly e-newsletter “Connect With Pacifica” prior to the February 28, 2022 Council meeting where the agenda item and introduction of the ordinance was discussed. Thus, members of the public, including Appellant, were provided notice of the Program Ordinance prior to adoption.
For the reasons provided above, staff recommends that the City Council reject this basis of appeal.
Basis 5. “The District and [sic] reserves the right to challenge the City’s determination for the parking and housing ordinance.”
Staff Response: As indicated above in staff’s Response to Basis No. 3, the consideration of the Council is limited to the approval, denial or modification of the CDP issued by the Planning Commission. Since the issue of whether adequate notice of the ordinance implementing the Program was provided is not relevant to the issuance of a CDP, staff believes that this appeal Basis No. 5 should not be considered by the Council. However, if Council is inclined to consider this issue, staff provides the following information to refute this contention.
The Appellant argues that the Program or the Program Ordinance does not fit within the scope of the CEQA exemptions identified by the City because the Appellant contends that allowing long-term parking of RVs, which Appellant equates to “temporary housing,” will result in “potential air quality, noise and public services impacts.” These arguments are without merit.
The Program Ordinance was determined by the Council to be exempt under CEQA Guidelines Sections 15301(Class 1- Existing Facilities) and 15304 (Class 4-Minor Alterations to Land) and the “Common Sense” exception, CEQA Guidelines Section 15061(b)(3) based on staff’s recommendation and review of the Program and Program Ordinance.
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. 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 14 Packet Pg. 236
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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 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 use of the ROW will remain essentially the same and there is only a negligible expansion of the former use of existing City facilities as a result of the Program- and thus the Class 1 exemption is appropriate.
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.
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 14 Packet Pg. 237
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available regardless of the Program status. This negligible temporary change of land use will have no permanent effects on the environment.
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)).
For the reasons provided above, staff recommends that the City Council reject this basis of appeal.
Basis 6. “The City has the authority to and should select an alternative location to Francisco Boulevard.”
Staff Response: As indicated above in staff’s Response to Basis Nos. 3, 4, and 5 the consideration of the Council on this Appeal is limited to the approval, denial or modification of the CDP issued by the Planning Commission. Since an alternative location is not relevant to the issuance of a CDP, staff believes that this appeal Basis No. 6 should not be considered by the Council. However, if Council is inclined to consider this issue, staff provides the following information to refute this contention.
The Program sites were approved as part of the Settlement Agreement in November 2021. The Program, including the design and operation of the Program, was considered and approved by the Pacifica City Council on February 22, 2022.5
As detailed in the May 16 Planning
Commission staff report, the establishment of the parking space and implementation of the improvements in the Coastal Zone meet the definition of “development” per PMC Section 9-
4.4302(z). Development in the Coastal Zone requires issuance of a Coastal Development Permit per PMC Section 9-4.4303(a). The Planning Commission’s action on May 16, 2022, was focused on determining whether the Project is appropriate or not, with respect to the findings required for approval of the Coastal Development Permit. The Planning Commission was not provided the authority from City Council to review or consider alternative locations for the Project. Therefore, because review and consideration of alternative locations for the Project was not within the Planning Commission’s purview, it is also beyond the purview of the City Council as part of the appeal.
For the reasons provided above, staff recommends that the City Council reject this basis of appeal.
C. 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 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.
5 City of Pacifica City Council Resolution No. 12-2022
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D. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) REVIEW
Staff analysis of the Project supports the City Council finding that the Project qualifies for Class 1 and 4 exemptions under CEQA Guidelines Sections 15301 and 15304 and the “Common Sense” exception, CEQA Guidelines Section 15061(b)(3), as described below:
15301. “Class 1 consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use. The types of “existing facilities” itemized below are not intended to be allinclusive of the types of projects which might fall within Class 1. The key consideration is whether the project involves negligible or no expansion of use. […]” The Project includes reserving 30’ by 10’ of public ROW for the use by participants of the Program for a period of three years. The existing use of the public ROW allows for vehicle parking; therefore, the proposed use is a negligible expansion of the existing use. 15304. “Class 4 consists of minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry or agricultural purposes. Examples include, but are not limited to:
[…]
(e) Minor temporary use of land having negligible or no permanent effects on the environment, including carnivals, sales of Christmas trees, etc.;” The Project includes reserving 30’ by 10’ of public ROW for the use by participants of the Program for a period of three years. The negligible temporary change of land use will have no permanent effects on the environment. Installation of two pole signs and pavement markings are minor alterations and do not involve removal of healthy, mature scenic trees.
Additionally, none of the exceptions applicable to a Class 1 and 4 exemptions in Section 15300.2 of the CEQA Guidelines apply, as described below. x 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 adopted pursuant to law by federal, State, or local agencies. x 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. x Sec. 15300.2(c): There is no evidence that the activity would have a significant effect on the environment due to unusual circumstances.
x 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.
Because the Project is consistent with the requirements for Class 1 and Class 4 exemptions and none of the exceptions to applying Class 1 and 4 exemptions in Section 15300.2 of the CEQA Guidelines apply; therefore, there is substantial evidence in the record to support a finding that the Project is categorically exempt from CEQA.
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Additionally, CEQA Guidelines Section 15061(b)(3) states “The activity is covered by the common sense exemption that CEQA applies only to projects which have the potential for causing a significant effect on the environment. 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.” The Project includes reserving 30’ by 10’ of existing public ROW for the use by participants of the Program for a period of three years. The negligible temporary change of land use will have no permanent effects on the environment. Installation of two pole signs and pavement markings are minor alterations to the existing environment. It can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment.
E. STAFF SUMMARY
Staff believes there is substantial evidence to deny the appeal and uphold the Planning Commission’s approval as discussed above. 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.
F. 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:
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
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ATTACHMENT LIST:
Attachment A - Draft Resolution Denying the Appeal and Upholding Planning Commission Approval (DOCX)
Attachment B - Planning Commission Resolution No. 2022-012 (PDF) Attachment C - Planning Commission Staff Report - May 16, 2022 (PDF) Attachment D - Planning Commission Minutes - May 16, 2022 (PDF) Attachment E - Project Plans (PDF)
Attachment F - NCCWD Appeal (PDF)
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